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EXHIBIT 10.205
OPERATING AGREEMENT OF
BLUEGREEN/BIG CEDAR VACATIONS, LLC.
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TABLE OF CONTENTS
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RECITALS 1
ARTICLE 1. ORGANIZATION.................................................................................1
Section 1.1 Formation of the Company..........................................................1
Section 1.2 Name..............................................................................2
Section 1.3 Term..............................................................................2
Section 1.4 Character of Business; Powers.....................................................2
Section 1.5 Principal Place of Business.......................................................2
Section 1.6 Domestic Registered Agent and Registered Office...................................2
Section 1.7 Foreign Agents and Registered Office..............................................2
Section 1.8 Certain Definitions...............................................................3
Section 1.9 Additional Definitions............................................................5
ARTICLE 2. CAPITAL CONTRIBUTIONS........................................................................5
Section 2.1 Initial Capital Contributions.....................................................5
Section 2.2 Additional Capital Contributions..................................................6
Section 2.3 Member Loans......................................................................7
Section 2.4 No Additional Capital Contributions...............................................7
Section 2.5 Repayment of Member Loans.........................................................7
ARTICLE 3. DISTRIBUTIONS................................................................................7
Section 3.1 Distributions of Operating Proceeds................................................7
Section 3.2 Distributions to be Made in Cash or Receivables....................................8
Section 3.3 Withholding of Distributions.......................................................8
Section 3.4 Distributions of Capital; No Interest on Capital Contributions;
Limitation on Contributions.................................................8
ARTICLE 4. ALLOCATION OF PROFITS AND LOSSES.............................................................9
Section 4.1 Profits and Losses.................................................................9
Section 4.2 Allocation with Respect to Tax Matters.............................................9
Section 4.3 Nonrecourse Deductions and Minimum Gain Chargebacks...............................10
ARTICLE 5. ACCOUNTING..................................................................................10
Section 5.1 Accounting Methods; Company Records...............................................10
Section 5.2 Fiscal Year.......................................................................11
Section 5.3 Bank Accounts; Title to Business Property.........................................11
Section 5.4 Capital Accounts..................................................................11
Section 5.5 754 Election......................................................................11
Section 5.6 Tax Status........................................................................11
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ARTICLE 6. POWERS, RIGHTS AND DUTIES OF MEMBERS........................................................12
Section 6.1 Management Authority and Duties of Members........................................12
Section 6.2 Specific Authority of Management Committee and General
Manager....................................................................13
Section 6.3 Restrictions on Authority of the Management Committee and the
General Manager; Major Decisions..........................................17
Section 6.4 Meetings and Voting by Members....................................................18
Section 6.5 Conflicts of Interest.............................................................19
Section 6.6 Transactions with Members and Affiliates..........................................19
Section 6.7 Liability and Indemnification of the Management Committee,
General Manager, Members and Affiliates...................................20
Section 6.8 Compensation and Reimbursement of the Members.....................................20
Section 6.9 Liability for Company Debts and Obligations.......................................21
Section 6.10 Non-Competition...................................................................21
Section 6.11 Rights to Participate.............................................................22
ARTICLE 7. TRANSFERS OF INTERESTS......................................................................24
Section 7.1 Restrictions......................................................................24
Section 7.2 Effect of Assignment; Documents...................................................24
ARTICLE 8. DISSOLUTION OF THE COMPANY..................................................................25
Section 8.1 Liquidation Events................................................................25
Section 8.2 Right to Continue Business and Affairs of Company.................................26
Section 8.3 Distribution of Proceeds on Dissolution; Winding Up; Reserves.....................26
Section 8.4 No Liability......................................................................27
ARTICLE 9. GENERAL.....................................................................................28
Section 9.1 Notices/Approvals to be in Writing................................................28
Section 9.2 Amendments........................................................................28
Section 9.3 Miscellaneous.....................................................................28
Section 9.4 Remedies..........................................................................29
Section 9.5 Representations and Warranties....................................................30
Section 9.6 Power of Attorney.................................................................30
Section 9.7 Financial Reporting...............................................................31
ARTICLE 10. PUBLIC OFFERING............................................................................31
ARTICLE 11. TRANSFER OF PROPERTY/CLUB ARRANGEMENT......................................................32
EXHIBITS
Exhibit "A" Names, Addresses, Contributions and Distribution
Percentages of Members
Exhibit "B" Membership Interest Agreement
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OPERATING AGREEMENT OF
BLUEGREEN/BIG CEDAR VACATIONS, LLC
a Delaware Limited Liability Company
THIS AGREEMENT is made and entered into as of the 16th day of June,
2000 (the "Effective Date"), by and among those Persons identified on Exhibit A
attached hereto (the "Members").
RECITALS
A. The parties hereto have agreed to organize a limited liability
company to design, develop, sell and market a timeshare project (the "Big Cedar
Timeshare Project") consisting of approximately three hundred (300) units
contiguous to the Big Cedar Lodge at Ridgedale, Taney County, Missouri ("Big
Cedar Lodge"), such Big Cedar Timeshare Project to be named The Big Cedar Resort
Club.
B. This Agreement sets forth the understandings and agreements of the
parties hereto with respect to the organization and operation of the limited
liability company and the scope and conduct of its business.
NOW, THEREFORE, in consideration of mutual covenants and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
ARTICLE 1. ORGANIZATION
SECTION 1.1. FORMATION OF THE COMPANY.
(A) The Members hereby associate themselves as members in the
Company, pursuant to the provisions of the Delaware Limited Liability Company
Act (the "Act"), for the limited purposes set forth in this Agreement. The
Management Committee (as herein defined) has caused to be filed in the
appropriate governmental office "Articles of Organization" which conform to the
requirements of the Act in order to constitute the Company as a valid Delaware
limited liability company under the Act, effective as of the Effective Date.
(B) The Members hereby ratify, approve and confirm all
documents executed, acknowledged and/or delivered and all acts, agreements,
purchases, and other actions by or at the direction of the Management Committee
prior to the Effective Date, including those done for or in connection with the
filing of the Articles of Organization.
(C) The Management Committee is hereby authorized and directed
to do or cause to be done on behalf of the Company all such actions (including
the payment of fees and expenses) and to make, execute, and/or deliver or cause
to be made, executed and/or delivered all such contracts, instruments,
documents, agreements, writings, or communications as the Management Committee,
in their discretion, deem necessary, advisable or appropriate for the Company to
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(1) design, develop, sell and market timeshare units of the Big Cedar Timeshare
Project and all matters related thereto; (2) negotiate and enter into employment
and service contracts for; and (3) obtain financing for such purposes, including
negotiating and entering into a loan commitment, promissory note, mortgage, and
such other loan documents to evidence and secure such financing.
SECTION 1.2. NAME. The Business of the Company shall be conducted
solely under the name of "Bluegreen/Big Cedar Vacations, LLC" and such name
shall be used at all times in connection therewith. The Management Committee is
authorized to file such fictitious names as the Management Committee, in its
discretion, may determine.
SECTION 1.3 TERM. The term of the Company shall commence as of the
Effective Date and shall continue until the winding up and liquidation of the
Company following a Liquidation Event, as provided in Article VIII.
SECTION 1.4. CHARACTER OF BUSINESS; POWERS.
(A) The business of the Company (the "Business") is to (1)
acquire, design, develop, own, operate, market and sell the Big Cedar Timeshare
Project; (2) lease, finance, hold, manage, sell, exchange or otherwise dispose
of all or any part of the timeshare units of the Business and the receivables
arising from the sale of timeshare interests; (3) borrow money in furtherance of
the Business; and (4) exercise all rights and powers and engage in all
activities related or ancillary to the foregoing, as determined by the
Management Committee, which a limited liability company may legally exercise
pursuant to the Act.
(B) The Company shall not engage in any activity other than
the described Business and no Member shall have any authority to hold himself or
herself out as an agent of the Company in any activity other than such described
Business and then only in conformity with the provisions of this Agreement.
SECTION 1.5. PRINCIPAL PLACE OF BUSINESS. The principal place of
business of the Company shall be at Boca Raton, Florida, or such other location
as may be hereafter determined by the Management Committee.
SECTION 1.6. DOMESTIC REGISTERED AGENT AND REGISTERED OFFICE. The name
of the Company's registered agent for service of process in Delaware and its
registered office in Delaware shall be The Corporation Trust Company, at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, on whose records shall be shown that notice
to the Company is to be sent to (i) ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, & ▇▇▇▇▇▇, L.L.P. at ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇; and (ii) ▇▇▇ ▇▇▇▇▇▇▇, Bluegreen Corp., at
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇; PROVIDED, HOWEVER, that the
Management Committee may change such registered agent and/or registered office,
at any time, by making all appropriate filings.
SECTION 1.7. FOREIGN AGENTS AND REGISTERED OFFICE. The Management
Committee shall (A) take or cause to be taken all action necessary to register
the Company as a foreign limited liability company authorized to transact
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business in other states (collectively, the "Foreign States") if any, as the
conduct of the Company's business so requires; and (B) select and cause the
Company to maintain resident or registered agents and offices in each of the
Foreign States where the maintenance of the same is required by applicable law,
and may change such agents and/or offices, at any time by making all appropriate
filings.
SECTION 1.8. CERTAIN DEFINITIONS. As used herein, the following terms
have the following meanings:
(A) "ACT" shall mean and refer to the Delaware Limited
Liability Company Act, 6 DEL.Css.18-101, ET Seq, as the same may heretofore be
supplemented, amended or modified.
(B) "AD LOAN" shall be that certain secured, advertising
advance loan as described in the Contribution Agreement made and entered into by
and between Member BCLLC and Member Bluegreen as of the Effective Date.
(C) "AFFILIATE OF A MEMBER" means (1) any officer, director,
employee, member, shareholder, partner, trustee, or relative within the third
degree of kindred of a Member or of a Person which is a partner, member,
shareholder, trustee or beneficiary of a Member, specifically to include ▇▇▇▇
▇▇▇▇▇▇; (2) any Person controlled by or under common control with such Member or
a partner, member, shareholder, trustee or beneficiary of a Member or any such
relative of such Member or partner, member, shareholder, trustee or beneficiary
of a Member; (3) any officer, director, trustee, partner, or employee of any
entity described in (2) above; and (4) any trust for the benefit of any officer,
director, trustee, partner, member or employee of any Member or Person described
in (1) above, or any beneficiary of a trust which is a member, shareholder or
partner described in (1) above. "Affiliate of a Member" shall not include
▇▇▇▇▇▇▇ Entertainment Company, J.W.C. Equity Funding, Inc., a Delaware
corporation; ▇.▇. Childs Associates, L.P., a Delaware limited partnership; or
Tracker Marine, LLC, a Missouri limited liability company.
(D) "AGREEMENT" means this Agreement, as amended from time to
time as herein provided.
(E) "APPLICABLE RATE" means the lesser of (1) a per annum rate
which is one percent (1%) higher than the corporate base interest rate announced
by Bank of America, N.A. or its successor during the period the indebtedness in
question is outstanding, as such corporate base interest rate changes from time
to time; or (2) the maximum interest that may be charged on such indebtedness
under the applicable usury law, if any.
(F) "BCLLC" means Big Cedar, L.L.C.
(G) "BLUEGREEN" means Bluegreen Vacations Unlimited, Inc.
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(H) "BUSINESS PROPERTY" means all property, assets and
interests (whether real or personal, tangible or intangible) owned or held from
time to time by the Company, including the land upon which the Big Cedar
Timeshare Project is to be built (the "Property").
(I) "CODE" means the Internal Revenue Code of 1986, as amended
from time to time.
(J) "COMPANY" means this limited liability company.
(K) "DISTRIBUTION" shall mean any and all payments, including
cash or receivables, distributed by the Company to its Members.
(L) "DISTRIBUTION PERCENTAGE" means, for each Member, the
percentage set forth opposite such Member's name on Exhibit A attached hereto.
(M) "FRACTIONAL INTEREST DEVELOPMENT" shall mean a program in
which one-quarter (1/4) interests of an accommodation is offered and conveyed to
a consumer in such respective accommodation, which one-quarter (1/4) interest
provides for three (3) months (i.e. one-quarter interest) of use by such
respective purchaser.
(N) "GENERAL MANAGER" means such person and his or her
successor(s) designated by the Management Committee in accordance with Section
6.1(C).
(O) "MAJOR DECISION APPROVAL" means a vote of the Members
holding a majority of the Distribution Percentage.
(P) A MEMBER'S "INTEREST" in the Company means all rights to
Distributions to which such Member is entitled as provided in Articles III and
VIII of this Agreement, together with the duties and obligations of such Member
to comply with this Agreement.
(Q) "MEMBERS" means the Persons set forth in Exhibit A and
their respective permitted successors as members hereunder.
(R) "OPERATING PROCEEDS" for the applicable period means all
gross cash receipts from operations of the Company during such period (excluding
Dissolution Proceeds as herein defined), less the following costs and expenses
(to the extent as determined by the Management Committee not paid from reserves)
and other items paid during such period: (1) operational cash disbursements and
cash operating expenses; (2) interest, principal and debt service paid on any
indebtedness of the Company; (3) cash expenditures for capital improvements and
other capital items; and (4) a reasonable allowance for reserves, contingencies
and anticipated obligations as determined by Member Bluegreen; provided
Operating Proceeds shall not include any cash arising from refinancing of debt.
(S) "PERSON" means an individual, partnership, corporation,
limited liability company, trust or other association.
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(T) "RESORT INTEREST PROGRAM" shall mean any form of
timeshare, interval interest, timeshare exchange, undivided interest program,
timeshare club membership, points-based program, or occupancy program, other
than as may be offered by the Company in respect to the Big Cedar Timeshare
Project, or as may be offered by Member Bluegreen or its Affiliates, or any
Fractional Interest Development offered by Member BCLLC or its Affiliates,
whereby the use, occupancy or possession of real property or real property
improvements has been made subject to a conveyance, use or occupancy or
possession right, which circulates among purchasers according to a first come,
first serve reservation system, or a floating or fixed time schedule on a
periodic, re-occurring basis, over any period of time in excess of one (1) year
in duration.
(U) "TREASURY REGULATIONS" means the income tax regulations
promulgated under the Code, as such regulations may be amended from time to
time, and, in the case of any temporary regulations referred to herein, if any,
includes the corresponding provisions of pertinent final regulations.
SECTION 1.9. ADDITIONAL DEFINITIONS. The definitions in Section 1.8
shall apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun used herein shall include the
corresponding masculine, feminine, and neuter forms. The words "include,"
"includes," and "including" shall be deemed to be followed by the phrase
"without limitation." The words "herein," "hereof," "hereunder," and similar
terms shall refer to this Agreement, unless the context otherwise requires.
ARTICLE 2. CAPITAL CONTRIBUTIONS
SECTION 2.1. INITIAL CAPITAL CONTRIBUTIONS. The Members shall initially
contribute to the capital of the Company the respective amounts shown opposite
their names on Exhibit A attached hereto (the "Initial Capital Contributions").
Member BCLLC is contributing acreage, being an unimproved parcel of land (the
"Property") which is identified on that certain Survey which is to depict the
real property upon which Phase 1 of the Big Cedar Timeshare Project is to be
located, and which Survey of Phase 1 shall be agreed to by the Members prior to
the execution of this Operating Agreement. The Members agree that the Property
has a fair market value of Seventy Thousand and No/100 Dollars ($70,000.00) per
acre. All Members agree that the capital account of Member BCLLC in the Company
shall be credited an amount equal to the number of acres depicted on the Survey
multiplied by Seventy Thousand and No/100 Dollars notwithstanding the basis of
Member BCLLC in the Property. Member Bluegreen is contributing an amount in cash
equal to Seventy Thousand and No/100 Dollars ($70,000) multiplied by the number
of acres depicted on the foregoing Survey, which amount shall be contributed in
accordance with the following: (i) Ten Percent (10%) of such amount shall be
contributed upon execution of this Agreement, with the balance of such amount
being contributed, from time to time over the period of twelve (12) months from
and after the date of execution of this Agreement pursuant to and in accordance
with the cash requirements of the Company as provided for in the Closing
Business Plan (as defined in Section 2.2 hereinbelow); provided, however, that
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the total amount of the capital contribution from Member Bluegreen shall be
contributed by Member Bluegreen to the Company no later than twelve (12) months
after the date of execution of this Agreement. If such amount is not completely
funded to the Company by such date then, in accordance with the terms and
conditions of the Membership Interest Agreement attached hereto as Exhibit "B"
and following five (5) days written notice of such failure delivered by Member
BCLLC to Member Bluegreen, Member Bluegreen's interest in the Company shall
decrease and Member BCLLC's interest in the Company shall increase by one (1)
percentage point or fraction thereof for each Sixty Three Thousand Three Hundred
Twenty Nine Dollars ($63,329.00) increment or portion thereof which Member
Bluegreen has failed to contribute towards the total amount of its Initial
Capital Contribution (the "LLC Member Interest Reallocation"). If as a result of
the LLC Member Interest Reallocation of Member Bluegreen's interest in the
Company results in Member Bluegreen's ownership interest percentage being
reduced to fifty percent (50%) and Member BCLLC's ownership interest percentage
being increased to fifty percent (50%) then the LLC Member Interest Reallocation
shall be adjusted to provide Member Bluegreen's ownership interest percentage be
reduced to forty nine and nine-tenths (49.9%) and Member BCLLC's ownership
interest percentage be increased to fifty and one-tenth percent (50.10%)
accordingly, then in that event the Articles of Organization of the LLC and the
Operating Agreement shall be amended accordingly and pursuant to the amended
terms thereof, Member BCLLC shall be entitled to appoint two (2) representatives
of the Management Committee and Member Bluegreen shall be entitled to appoint
one (1) representative of the Management Committee. Member Bluegreen agrees to
execute such additional documents as necessary to effectuate Member Bluegreen's
obligations pursuant to the Membership Interest Agreement.
SECTION 2.2. ADDITIONAL CAPITAL CONTRIBUTIONS.
(A) Attached hereto, and incorporated herein by this
reference, is a business plan, having upon execution hereof, been agreed to by
the Members, which forecasts the life of the Big Cedar Timeshare Project (the
"Closing Business Plan"). It is agreed that this Closing Business Plan is solely
a projection, without representation or warranty, express or implied. After
operations are commenced and contributions made, Member Bluegreen shall
formulate and deliver to all Members on an annual basis a rolling three (3) year
business plan (the "Business Plan") containing projections and budgets with
respect to revenues, expenses, operating cash flows, capital expenditures,
financing, market priorities and funding required in each case for the following
fiscal year or such longer period with respect to certain matters as may be set
out in the Business Plan. The Business Plan will estimate all funding and
identify proposed funding sources. The Business Plan may propose the Members
make additional capital contributions (the "Additional Capital Contributions")
in such amounts and at such times as shall be set forth in the relevant Business
Plan; provided, however, the Company shall first (i) exhaust opportunities to
secure funds from commercial banks or other lenders and, in each case, the
Members shall, to the extent required by such lender, provide pro-rata
guarantees as may be requested by such lenders, subject to the limitations of
this Section; and (ii) attempt to secure funds from the Members. In all events
such contributions or guarantees shall be allocated on the basis of the
Distribution Percentage and shall not, unless otherwise agreed by a respective
Member, exceed an additional amount contributed or guaranteed of more than Four
Hundred Ninety Thousand Dollars ($490,000.00) by Member BCLLC and Five Hundred
Ten Thousand Dollars ($510,000.00) by Member Bluegreen. If the Members loan
money to the Company in accordance with the foregoing, or if additional funding
is agreed by the Members as an Additional Capital Contribution, then Member
BCLLC shall have the right to elect to borrow such loan or equity contribution
from Member Bluegreen, who agrees to loan the same, which loan proceeds will be
contributed by Member BCLLC to the Company. Such loans by Member Bluegreen to
Member BCLLC (the "Call Loan") shall bear interest at the Applicable Rate of the
note or the rate of twelve percent (12%) per annum, whichever is greater, with a
term of two (2) years and such loan rate shall contain a default interest rate
of three percent (3%) per annum over the annual interest rate. Member BCLLC
shall grant to Member Bluegreen a first priority security interest on any
additional equity interest in the Company as may be distributed to Member BCLLC
in return for the Additional Capital Contribution call payment. In addition, in
the event Member Bluegreen makes the Call Loan, then the principal amount of
such loan and all interest thereon shall be repaid in its entirety to Member
Bluegreen by Member BCLLC from BCLLC's first Distributions from the Company. In
the event of default in the payment by BCLLC to Member Bluegreen of amounts due
on the Call Loan, then Member Bluegreen shall have the right to, at its option,
(i) purchase BCLLC's interest in the Company at a price equal to eighty percent
(80%) of the fair market value of such interest as liquidated damages (the
Members agreeing that damages resulting from such default are impossible to
ascertain and the Members agreeing that the reduction in the purchase price
constitutes the best estimate of damage and is not a penalty); (ii) diminish
Member BCLLC's ownership as follows: BCLLC's ownership interest shall be
recalculated to be equal to a fraction, the numerator of which will be equal to
all capital contributions, loans and credits of Member BCLLC and the denominator
of which shall be the aggregate of all capital contributions, loans and credits
of all Members (including contribution of the proceeds of the Call Loan) and
Bluegreen's ownership will be reciprocally increased in an amount equal to the
decrease in BCLLC's ownership interest in the Company. If the loan is obtained
by the Company from any Member (or if the Call Loan is made by Member Bluegreen
to Member BCLLC), the repayment of such shall be made before any Distributions
or repayments are made to any Member who does not advance such loan to the
Company or who is not owed the Call Loan.
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SECTION 2.3. MEMBER LOANS. Any Member or Successor may voluntarily make
loans to the Company for any Company purpose if the Management Committee
determines, in their sole discretion, that the use of such borrowed funds is
needed and would benefit the Company and if such loans ("Member Loans") are made
in accordance with the following terms and conditions:
(A) If a Member or Successor offers to lend funds to the
Company and the Management Committee proposes to accept the offer of such Member
or Successor, the Management Committee shall notify the other Members and
Successors of the amount of the funds the Company needs to borrow and the nature
of the Company's need for the same (the "Proposed Loan Notice"). Each Member and
Successor shall have the right, but not the obligation, to participate in the
making of such Member Loan by giving notice of his or her election to do so to
the Management Committee within five (5) days of receiving the Proposed Loan
Notice. If one or more Members or Successors in addition to the originally
offering Member or Successor desire(s) to participate in the making of such
Member Loan, unless otherwise agreed by all of the Members and Successors so
electing to participate in the making of such Member Loan, each such electing
Member and Successor shall lend to the Company, no later than fifteen (15) days
after the giving of the Proposed Loan Notice, the amount determined by (1)
dividing its Distribution Percentage by the aggregate of the Distribution
Percentages of all of the Members and Successors so electing; and (2)
multiplying the resulting fraction against the amount to be provided to the
Company by means of such Member Loan at such time. The Management Committee
shall notify each electing Member and Successor of the amount of his or her
share of the Member Loan within the fifteen (15) day period and collect the
amounts to be loaned by each electing Member and Successor.
(B) All Members and Successors making Member Loans shall be
entitled to interest thereon, compounded annually, at the Applicable Rate.
Member Loans (and the interest thereon) shall be "cash-flow" loans payable
(principal and interest) as rapidly as possible, in the order in which such
Member Loans were made, but solely out of Operating Proceeds (before
distributions to Members and Successors under Article III) or out of dissolution
proceeds ("Dissolution Proceeds") (as provided in Section 8.4), and no Member or
Successor shall be personally liable for the repayment thereof. For purposes of
determining the amount and priority of debt service payments on Member Loans,
all Member Loans made within fifteen (15) days after the giving of the Proposed
Loan Notice shall be treated as having been made at the same time on the last
day of such fifteen (15) day period. Member Loans repayable to Member BCLLC
shall, in all cases, be only repaid after any Call Loan is repaid. A Member Loan
shall not exceed in interest or priority any unpaid Call Loan.
SECTION 2.4. NO ADDITIONAL CAPITAL CONTRIBUTIONS. Except as provided in
the foregoing provisions of this Article II, no Member or Successor shall be
required to make any Additional Capital Contributions or loans to the Company.
SECTION 2.5. REPAYMENT OF MEMBER LOANS. Repayment of Member Loans may
be from Operating Proceeds, reserves, or any other cash or receivables on hand
available to the Company. Member Loans shall be repaid on a first in-first out
basis and if Member Loans are received with equal priority then payment shall be
on a pro-rata basis.
ARTICLE 3. DISTRIBUTIONS
SECTION 3.1. DISTRIBUTIONS OF OPERATING PROCEEDS. Outstanding Loans,
whether Call Loans, Member Loans, the Ad Loans or any other loans, owed to any
Member, may be payable by cash or receivables of the Company. Until such time as
the Ad Loan is repaid, any Distributions to Member BCLLC from the LLC shall be
used to reduce the balance due and payable on the Ad Loan. Subject to the right
of Member Bluegreen to receive repayment of the Ad Loan from Member BCLLC's
Distributions, the Company's Operating Proceeds shall be applied first to
satisfy principal and interest payments in respect to outstanding Call Loans or
Member Loans (in that order), if any, and the balance distributed to the Members
and Successors in proportion to their respective Distribution Percentages, at
such times as the Management Committee shall determine (but not less frequently
than annually). In the event that Operating Proceeds are available for
distribution in accordance with the previous sentence and prior to the maturity
date of the Ad Loan, then such Operating Proceeds shall be distributed and
Member BCLLC's Distribution shall be used to reduce the balance due and payable
on the Ad Loan). Notwithstanding the foregoing, the Management Committee will
cause the Company to distribute to each Member cash that equals one-half (1/2)
of their respective income tax liability on Company income allocated to each
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respective Member with respect to each tax year of the Company; provided,
however, that such amount shall not be in excess of twenty percent (20%) of the
total income allocated to such respective Member with respect to each tax year
of the Company. In calculating the tax liability of each Member on Company
income allocated with respect to each tax year, the Company shall take into
account (a) any loss the Company may have previously allocated to such Member
that is available to offset such income; and (b) the applicable marginal federal
income tax rate and the marginal income tax rate of the state of the Member's
principal residence and of the Company, if the two are different. Such amount
shall be reduced, but not below zero (0) by the amount of any other cash
distributed to such Member (other than the income tax distribution) after the
first day of the previous tax year. Such amount shall be distributed quarterly,
with a final reconciliation settlement distributed no later than the first day
of May of the following year. The income tax distribution shall be distributable
only if the Company has sufficient cash available for distribution. For purposes
of the preceding sentence, cash available shall mean cash on hand available from
operations and not needed by the Company to pay current expenses and debt
service. Any income tax distributions shall be an offset against further
pro-rata Distributions as may be distributed to the Members by the Company.
SECTION 3.2. DISTRIBUTIONS TO BE MADE IN CASH OR RECEIVABLES. Unless
otherwise unanimously determined by the Members, all Distributions to the
Members and Successors shall be made in cash or timeshare receivables. In no
event shall any Member or Successor be compelled or permitted to accept a
Distribution of any property other than cash from or receivables of the Company
unless all Members and Successors consent and receive undivided ownership
interests therein that are in the same proportions as they would have shared in
a cash distribution equal to the value of such property at the time of such
Distribution.
SECTION 3.3. WITHHOLDING OF DISTRIBUTIONS. Any Member or Successor may,
at its election and upon notice to the affected Member or Successor (the "Debtor
Party") and the Management Committee, withhold or cause to be withheld from any
payment or distribution provided to be made under this Agreement by the Company
to the Debtor Party any sum or amount that the Debtor Party owes the Company or
such Member or Successor under or by virtue of this Agreement which have been
called for but which the Debtor Party has theretofore failed to make, and the
amount so withheld shall be paid or contributed, as the case may be, on behalf
of the Debtor Party, over to the Person or party (i.e., the Member, Successor or
Company) entitled thereto. For purposes of all computations, distributions, and
the allocations hereunder, any amount so withheld and paid over to another party
or Person shall nevertheless be deemed to have been contributed by or paid or
distributed to the Debtor Party. The rights and remedies provided in this
Section are in addition to, and not in limitation of, any other rights and
remedies provided under this Agreement or under applicable law.
SECTION 3.4. DISTRIBUTIONS OF CAPITAL; NO INTEREST ON CAPITAL
CONTRIBUTIONS; LIMITATION ON CONTRIBUTIONS. Except as provided in the Act and in
this Article III or in Article VII, (A), no Member or Successor shall be
entitled to withdraw or to receive Distributions of or against his/her/its
capital contributions; (B) no Member or Successor shall be paid interest on any
capital contribution; and (C) no Member or Successor shall have any priority
over other Members and Successors as to contributions or as to compensation by
way of income.
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ARTICLE 4. ALLOCATION OF PROFITS AND LOSSES
SECTION 4.1. PROFITS AND LOSSES. Subject to Sections 4.2 and 4.3, the
Company's income, gains, losses, deductions and credits (and items thereof) for
each fiscal year of the Company, shall be allocated among the Members and
Successors (for both book and tax purposes) in proportion to their respective
Distribution Percentages.
SECTION 4.2. ALLOCATIONS WITH RESPECT TO TAX MATTERS.
(A) Solely for tax purposes, income, gain, loss and deduction
with respect to property contributed to the Company by any Member or Successor
shall be allocated in accordance with Section 704(c) of the Code, Treasury
Regulations issued thereunder, and Treasury Regulations Section
1.704-1(b)(2)(iv)(g), so as to take account of any variation between the basis
of Member BCLLC in the Property to the Company and its fair market value at the
time of contribution. The Members have agreed that the fair market value of the
Property is Seventy Thousand Dollars ($70,000.00) per acre (as such acreage is
depicted on the Survey above referred to), regardless of the basis of Member
BCLLC in the Property.
(B) For purposes of determining shares of nonrecourse
liabilities of the Company under Treasury Regulations Section 1.752-3(a)(3), it
is hereby specified (in accordance with such Treasury Regulations) that the
percentage interest in Company profits of each Member or Successor is the same
as his or her Distribution Percentage.
(C) If the Company "revalues" its property under the
provisions of Treasury Regulations Section 1.704-1-(b)(2)(iv)(f), the capital
accounts ("Capital Accounts") shall be adjusted in accordance with Treasury
Regulations Section 1.704-(b)(2)(iv)(g) for allocations of depreciation,
depletion, amortization, and gain or loss, as computed for book purposes, with
respect to so much of the Company's property as has been subject to such
"revaluation" as that term is used in Treasury Regulations Section
1.704-1(b)(2)(iv)(f) (the "Revalued Property"). The distributive shares of the
Members and Successors of depreciation, depletion, amortization and gain or loss
with respect to Revalued Property, as computed for tax purposes, shall be
determined so as to take account of the variation between the adjusted tax basis
and book value of such Revalued Property in the same manner as under Section
704(c) of the Code.
(D) If during any taxable year of the Company there is a
change in the Interest of any Member or Successor in the Company, then the
Management Committee shall cause the allocations of the Company's income, gains,
losses, deductions and credits (and items thereof) to be made in a manner which
takes into account the varying interests of the Members and Successors in the
Company during such taxable year in accordance with Code Section 706(d) and the
Treasury Regulations thereunder.
(E) The Management Committee is hereby authorized and directed
to specially allocate items of income, gain, loss and deduction among the
Members during any fiscal year of the Company and/or upon the Company's
liquidation and termination (in any reasonable manner which they determine
appropriate) so as to cause the Members' Capital Accounts to be consistent with
the manner in which they agreed to share partnership distributions under the
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Prior Agreement and distributions hereunder (as reflected in Article III and
Section 8.4). Each Member agrees that he or she will not (1) file any federal,
state, or local income tax return which would be inconsistent or at variance
herewith; or (2) challenge or contest the validity of proprietary of the
allocations made under the authority of this Section by the Management
Committee.
SECTION 4.3. NONRECOURSE DEDUCTIONS AND MINIMUM GAIN CHARGEBACKS.
(A) The Company's Nonrecourse Deductions, if any, for each
fiscal year of the Company shall, subject to Section 4.2 (relating to, among
other things, allocations to take into account book/tax disparities), be
allocated to the Members, for both book and tax purposes, in accordance with
their relative Distribution Percentages during such period. The Company's
Partner Nonrecourse Deductions, if any, shall be allocated among the Members in
accordance with Treasury Regulations Section 1.704-2(i).
(B) If there is a net decrease in Partnership Minimum Gain
and/or Partner Nonrecourse Minimum Gain during a fiscal year of the Company,
then prior to making the other allocations provided for in this Article IV for
such fiscal year, the Members shall be allocated items of income and gain for
such year in the manner and relative amounts, if any, required by the applicable
provisions of Treasury Regulations Section 1.704-2 regarding minimum gain
chargebacks and/or the chargebacks of partner nonrecourse debt minimum gain as
applicable.
(C) For purposes of this Section, the terms "Nonrecourse
Deductions," "Partner Nonrecourse Deductions," "Partnership Minimum Gain" and
"Partner Nonrecourse Debt Minimum Gain" shall have the same meaning ascribed to
such phrases in Treasury Regulations Section 1.704-2.
(D) The allocations set forth in the foregoing provisions of
this Section 4.3 shall be made after taking into account all distributions under
Articles III or VIII through the end of the period in question.
ARTICLE 5. ACCOUNTING
SECTION 5.1. ACCOUNTING METHODS; COMPANY RECORDS.
(A) The Company's books and records shall be prepared in
accordance with generally accepted accounting principles, consistently applied,
except that the Capital Accounts of the Members and Successors shall be
maintained as provided in this Agreement. An annual audit shall be conducted,
which audit shall be completed at the cost of the Company, no later than ninety
(90) days after the Company's fiscal year. The Company shall be on the accrual
basis for both tax and accounting purposes. All federal, state and local tax
returns of the Company shall be prepared by a firm of certified public
accountants selected by the Management Committee. Member Bluegreen is hereby
designated as the "Tax Matters Partner" (as such term is defined in Section
6231(a)(7) of the Code) or the equivalent representative for the Company. The
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Tax Matters Partner shall make any and all tax elections to be made by the
Company and may, to the extent determined by the Tax Matters Partner from time
to time, elect, in the best interests of the Company, to deviate from Section
4.2 and Section 4.3.
(B) The Management Committee shall cause the Company to comply
with all record keeping requirements imposed by the Act, and shall provide each
Member with the opportunity to inspect and copy such records (at such Member's
expense), at reasonable intervals, during ordinary business hours. Neither the
Management Committee nor any Member shall have any obligation to provide to any
other Member a copy of the Articles of Organization or any other document filed
with the Delaware Secretary of State or other governmental authority on behalf
of the Company.
SECTION 5.2. FISCAL YEAR. The fiscal year of the Company shall be the
calendar year or as may be determined by the Management Committee.
SECTION 5.3. BANK ACCOUNTS; TITLE TO BUSINESS PROPERTY. The funds of
the Company shall be deposited in such bank accounts, or invested in such
interest-bearing or non-interest-bearing investments in the Company's name, as
shall be determined by the Management Committee. The funds of the Company shall
not be commingled with the funds of any other Person and the Management
Committee shall not employ, or permit or cause any other Person to employ such
finds in any manner except for the benefit of the Company. Title to the Business
Property shall be held, and conveyances thereof shall be made, in the name of
the Company. Each bank account shall have provided thereon signatures of Member
Bluegreen or such parties as designated by Member Bluegreen.
SECTION 5.4. CAPITAL ACCOUNTS. A Capital Account shall be maintained
for each Member and Successor, consistent with the provisions of Section 5.6,
and adjusted in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)
and in accordance with the provisions of this Agreement.
SECTION 5.5. 754 ELECTION. In the case of a transfer of an Interest
which is permitted by this Agreement and which is made in the manner provided in
Section 743 of the Code, then upon the request of the transferee of such
Interest, the Company shall file an election under Section 754 of the Code
pursuant to the Treasury Regulations applicable thereto.
SECTION 5.6. TAX STATUS. Any provision of this Agreement to the
contrary notwithstanding, solely for federal and state income tax purposes, each
party hereto recognizes and acknowledges that it is the Members' intention that
the Company will be a limited liability company classified as a partnership for
federal income tax purposes and subject to all provisions of Subchapter K of
Chapter 1 of Subtitle A of the Code; PROVIDED, HOWEVER, the filing of federal
and state income tax returns shall not be construed to extend the purposes or
expand the obligations or liabilities of the Company, nor shall it be construed
to create a partnership (other than for tax purposes) or any other agency
relationship between the Members.
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ARTICLE 6. POWERS, RIGHTS AND DUTIES OF THE MEMBERS
SECTION 6.1. MANAGEMENT AUTHORITY AND DUTIES OF MEMBERS.
(A) Subject to Section 6.3 and the other rights specifically
granted to the Members under the terms of this Agreement, the business and
affairs of the Company shall be managed under the direction and control of a
management committee (the "Management Committee") which shall consist of three
(3) individuals, who need not be Members. ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall be the initial members of the Management Committee. At all
times and for all purposes, Member Bluegreen or its successor shall have the
irrevocable power, authority and right to appoint two (2) members of the
Management Committee and Member BCLLC shall have the irrevocable power and
authority to appoint one (1) member of the Management Committee. Those Members
so empowered may remove and replace their designee(s) to the Management
Committee on written notice to all Members. The Management Committee shall have
the exclusive right, power, authority and responsibility to manage and operate
the business and affairs of the Company and to make all decisions with respect
thereto and enter into transactions on behalf of the Company for carrying on the
Business. The Management Committee (1) may designate one or more of the members
thereof to act alone in respect of any Company matter or determination; or (2)
delegate to one or more Persons, who may or may not be Members, ministerial
authority to conduct the day-to-day operations of the Company. Unless otherwise
so delegated by the Management Committee, no Member shall have any right or
power to act for or on behalf of the Company or make decisions with respect
thereto. Decisions of the Management Committee within its scope of authority
shall be binding upon the Company and each Member. Any act or decision by the
Management Committee shall require the approval of two (2) members of the
Management Committee whose determination shall be binding on all of the members
thereof and the Members of the Company.
(B) Unless otherwise expressly provided in a written notice of
a meeting, meetings of the Management Committee shall be held at the principal
place of business of the Company or at any other place that a majority of the
members of the Management Committee determine. In the alternative, meetings may
be held by conference telephone in which each member of the Management Committee
can participate. The presence of at least a majority (by number) of the members
of the Management Committee shall constitute a quorum for the transaction of
business. Meetings shall be held as (i) determined by the Management Committee,
or (ii) as requested by any member of the Management Committee. Meetings shall
be at least twice per fiscal year; however any meetings of the Management
Committee requested by any member of the Management Committee shall not be in
excess of (i) four (4) times a year during the Construction Period (which
Construction Period, for purposes of this Agreement, shall be defined as the
term of three (3) years commencing upon the execution date hereof); or (ii) two
(2) times a year after the termination of the Construction Period. Any meetings
of the Management Committee shall be held upon at least ten (10) business days'
prior written notice delivered by the Management Committee to the members of the
Management Committee. Such notice shall specify the time and place of such
meeting and the purpose for such meeting. The Management Committee may make
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decisions, without holding a meeting, by written consent of a majority of the
members of the Management Committee. Minutes of each meeting and a record of
each decision shall be kept by the designee of the Management Committee and
shall be given to the Members promptly after the meeting.
(C) The Management Committee shall, as soon as practicable,
unanimously agree upon and appoint an individual as manager (the manager, or any
successor thereto, being hereinafter collectively referred to as the "General
Manager") to supervise the day-to-day operations of the Company. The General
Manager shall be subject to the general supervision and control of the
Management Committee and shall carry out the policy decisions made by the
Management Committee. At each regular meeting of the Management Committee (and,
when requested by any member thereof, at any special meeting of the Management
Committee), the General Manager shall be present and shall report to the
Management Committee on the operations of the Company or any other matters as
any member of the Management Committee may request. The General Manager may be
removed and replaced at any time and for any reason (or no reason) by the
Management Committee.
(D) Member BCLLC shall have the right to approve schematic
floor plans, building elevation plans and interior design concepts as the same
relate to the Big Cedar Timeshare Project; provided Member Bluegreen shall have
the ultimate discretion to determine the same.
(E) Each Member shall have the right to review and approve the
annual operating budget, inclusive of the annual advertising budget, to be
established from time to time by the Management Committee. The Management
Committee shall seek input from each Member concerning the adoption of the
annual operating budget and the annual advertising budget.
(F) Notwithstanding any other provision contained herein to
the contrary, the Big Cedar Timeshare Project shall be designed and constructed
so that (a) the overall product cost which is to consist of the costs of land,
fixtures, furnishing and equipment, central facilities building and amenities,
and all soft costs (including by way of example, fees for architectural design,
interior design, civil engineering, land planning, soil permitting, reimbursable
expenses, costs to date, site improvements, contingencies, and capital
interests) will not exceed twenty five percent (25%) of the net average sales
price of each timeshare unit; and (b) provided each timeshare cabin unit (as
opposed to villa units) shall be designed and constructed at a minimum of
product cost equal to One Hundred Eighty Five Thousand and No/100 Dollars
($185,000.00); and provided further that it is anticipated by the Members that
in respect to cabin units (as opposed to villa units) that real stone for
fireplaces and real logs in cabin construction would be utilized, subject,
however, to the right of Member Bluegreen to determine that construction will
deviate from use of real stone and real logs, if use of the same would exceed
the product cost based upon the above formula.
SECTION 6.2. SPECIFIC AUTHORITY OF MANAGEMENT COMMITTEE AND GENERAL
MANAGER.
(A) Subject to the provisions of Section 6.2 and the other
rights expressly granted to the Members hereunder, the Management Committee or,
at the discretion of the Management Committee, the General Manager, by majority
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vote if the General Manager is expressly so empowered, is hereby specifically
authorized for, and in the name of and on behalf of the Company:
(1) To manage and supervise the operations of the
Business Property, including supervision of the acquisition, storage and
processing of inventory, oversight of staffing and employment matters and
establishing policies for the conduct of the Business;
(2) To execute and deliver all instruments necessary
or convenient in connection with the management, maintenance and operation of
the Business Property;
(3) To execute and deliver, in furtherance of any or
all of the Purposes of the Company, any deed, lease, mortgage, promissory note,
▇▇▇▇ of sale, contract or other instrument effecting the conveyance, exchange or
encumbrance of all or any part of the Business Property, or any interest
therein, either to or from the Company, for the Purpose of carrying on the
Business and to authorize others so to do, particularly by way of example and
not limitation, to authorize others to convey and transfer timeshare interests
in the Big Cedar Timeshare Project, and otherwise to appoint third parties for
purposes of carrying out receivable financing transactions, including
endorsement of consumer notes, assignment of consumer mortgages or deeds of
trust, and related documentation, to effectuate receivable financing as relates
to timeshare interest sales;
(4) To borrow money and issue evidences of
indebtedness, and assume existing indebtedness necessary, convenient or
incidental to the accomplishment of the Business;
(5) To prepay in whole or in part, refinance, recast,
increase, modify or extend any mortgage or other indebtedness relating to the
Company or the Business Property;
(6) To engage in business with any Person who
provides any services to, lends money to, sells property to or purchases
property from, the Company;
(7) To retain or employ and coordinate the services
of employees, supervisors, accountants, attorneys, and other Persons necessary
or appropriate to carry out the Business (provided that the Management Committee
must unanimously agree on the identity of auditors, unless the auditors is a
firm of certified public accountants commonly referred to as one of the big
five);
(8) To establish and fund, out of the Company's gross
receipts or otherwise, such reserves for anticipated or contingent liabilities
and working capital as the Management Committee reasonably deems appropriate and
to reverse any such reserves not required;
(9) To engage in any kind of activity and to perform
and carry out such contracts of any kind necessary to, or in connection with, or
incidental to the accomplishment of, the Business;
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(10) To handle all matters in connection with the
construction of improvements to be constructed on the Business Property;
(11) To perform all other duties and functions
provided herein to be performed by the Management Committee, as in the
discretion of the Management Committee so determined,
(12) To accept instruments of indebtedness from
consumer purchasers of timeshare interests and to sell or hypothecate such
timeshare interests under any arrangements as may be established by the
Management Committee on behalf of the Company, on such terms as may, from time
to time, be acceptable to the Management Committee and to further pledge or sell
collateral related to such timeshare interests to such third party financier as
may be determined from time to time by the Management Committee;
(13) To establish sales prices for timeshare
interests and to sell or hypothecate timeshare receivables under any
arrangements as may be established by the Management Committee on behalf of the
Company, on such terms as may, from time to time, be acceptable to the
Management Committee and to further pledge or sell collateral related to such
timeshare interests to such third party financier as may be determined from time
to time by the Management Committee;
(14) To engage any and all personnel who, from time
to time, may be determined by the Management Committee necessary or desirable to
advance the Company or the Business of the Company; and
(15) To purchase insurance to protect the interests
of the Company. Such insurance purchased shall include, but not be limited to
the following:
(a) Workers' Compensation, providing
Statutory Limits for Coverage A and limits of at least One Million and No/100
Dollars ($1,000,000.00) for coverage B (employers' liability);
(b) Commercial or Comprehensive General
Liability providing limits of at least One Million and No/100 Dollars
($1,000,000.00) on an occurrence form, including personal injury liability;
(c) Business Auto, including owned, hired
and non-owned coverage, with limits of at least One Million and No/100 Dollars
($1,000,000.00);
(d) All Risks Builders Risk/Property
coverage for construction projects, including interests of Company, contractors,
and financial parties as their interests may appear;
(e) Crime coverage, including the management
and salespersons of the Company; and
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(f) Umbrella/Excess Liability, in the name
of the Company, with limits of not less than Twenty Five Million and No/100
Dollars ($25,000,000.00).
The Management Committee and General Manager shall also be authorized
to review periodically the need for additional coverage.
(16) To require the following insurance to be in place for any
independent contractors having any activity dealing with constructing "The Big
Cedar Timeshare Project."
(a) A Certificate of Insurance must indicate
minimum limits of One Million and No/100 Dollars ($1,000,000.00) per occurrence
for Commercial or Comprehensive General Liability (including contractual and
completed operations liability coverages) and that coverage is on an Occurrence
Form;
(b) A Certificate indicating Statutory
Workers' Compensation coverage and One Million and No/100 Dollars
($1,000,000.00) minimum of employers' liability coverage;
(c) A Certificate indicating a minimum of
One Million and No/100 Dollars ($1,000,000.00) per occurrence for Business Auto
Liability (including owned, hired and non-owned coverage).
(d) A Certificate indicating builders all
risk coverage (including items in transit), contractors equipment coverage
(including coverage for owned, leased or rented equipment), and an Installation
floater. All such coverages shall insure full or replacement value of materials
and equipment at risk.
(e) A Certificate must show Company and
Owner have been endorsed on the policy as additional insureds under the General
Liability and on any Umbrella/Excess coverage carried and that all policies
contain a full waiver of subrogation against Owner and Company. A copy of policy
endorsement showing additional insured status, waiver of subrogation, and any
other special policy provisions which may exclude or limit our additional
insured position must be attached to the Certificate.
(f) All insurance required of Independent
Contractor shall be primary and non-contributory with respect to any other
insurance available to Company and Owner. Any and all deductibles and/or
self-insured retentions shall be assumed by and be for the account of and at the
sole risk of the Independent Contractor.
(g) All insurance costs are for the account
of the Independent Contractor and shall not be passed onto Company or Owner.
(h) Higher limits and/or lower deductibles
or self-insured retentions may be required for certain contractors or on certain
projects as determined by Company's or Owner's Risk Management departments.
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(i) The Certificate must indicate a firm
thirty (30) day notice of cancellation or change.
(j) Certified copies of all policies shall
be furnished to Company's or Owner's Risk Management Departments, upon request.
(k) All Certificates must be mailed to: Risk
Management Department, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ at the time of
execution of this contract, annually upon policy renewal, and at any other time
requested by Company or Owner.
(B) Any Person dealing with the Company or the Management
Committee may rely upon a certificate signed by a majority of the Management
Committee as to (i) the identity and authority of the General Manager; (ii)
authorization to conduct any business on behalf of the Company; (iii) the
identity and authority of any representative or agent of the Company for
purposes of carrying on the business and affairs of the Company, including but
not limited to, sales and marketing of timeshare interests and the
hypothecation, sale and endorsement of evidences of indebtedness as respects the
sale of timeshare interests and collateral related thereto; or (iv) any matter
upon which the Management Committee may set forth on such certificate, including
any matter in respect to which the Management Committee may take action
regarding sales and marketing of timeshare interests and involvement of third
parties for financing respecting such timeshare interests, whether by
hypothecation or sale.
SECTION 6.3. RESTRICTIONS ON AUTHORITY OF THE MANAGEMENT COMMITTEE AND
THE GENERAL MANAGER; MAJOR DECISIONS.
(A) In addition to the limitations set forth elsewhere herein,
neither the Management Committee nor the General Manager shall undertake or
cause the Company to undertake any of the following without the consent of all
of the Members:
(1) Do any act in contravention of this Agreement;
(2) Possess Company property, or assign the Company's
rights in specific Company property in trust for creditors, or in the assignee's
promise to pay the debts of the Company, or for other than a purpose of the
Company;
(3) Admit additional or substitute Members to the
Company except as otherwise provided herein;
(4) Change or reorganize the Company into any other
legal form;
(5) Cause the Company to engage in any business other
than the Business or extend the scope of the Business, by implication or
otherwise;
(6) The acquisition by the Company of any other real
estate or any interest therein, property or assets not related to the Business
Property;
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(7) Effect the sale or transfer of all or
substantially all of the Business Property;
(8) Make any expenditure which will be considered
"capital" in nature under generally acceptable accounting principles, if such
expenditure would be a departure from the annual operating budget;
(9) Make any Distribution of the Business Property to
Members other than cash or receivables or make any Distribution by the Company
other than in accordance with Articles 3 or 8;
(10) Appointment of the General Manager as described
in Section 6.1(C); or
(11) Enter into any agreement with a Member or any
Affiliate of a Member, other than in the ordinary course of business of the
Company.
SECTION 6.4. MEETINGS AND VOTING BY MEMBERS.
(A) Meetings of Members shall be held at the Company's
principal place of business or such other place as designated by the Management
Committee. Not less than ten (10) nor more than twenty (20) days before each
meeting, the Person calling the meeting shall give written notice of the meeting
to each Member entitled to vote at the meeting. The notice shall state the time,
place and purpose of the meeting.
(B) Notwithstanding the foregoing provisions, each Member who
is entitled to notice waives notice if before or after the meeting the Member
signs a waiver of the notice which is filed with the records of Members'
meetings, or is present at the meeting in person or by proxy. The presence in
person or by proxy of a majority of the Distribution Percentage and a majority
of the Management Committee shall constitute a quorum. A Member may vote either
in person or by written proxy signed by the Member or by the Member's duly
authorized attorney-in-fact.
(C) A determination by those Members owning a majority or more
of the Distribution Percentages shall be effective whether or not all Members
are in attendance at any meeting in which such determination is made, or whether
such determination is made by formal or informal, oral or written instructions
of such Members, and such determination so made by the Members who may actually
vote the proposed determination. Notwithstanding any provision in this Agreement
to the contrary, in no event shall a Member who is in default under this
Agreement at the time a vote is taken or a decision is made be entitled to vote
(or give or withhold consent or approval) in respect of any act, determination,
major decision or other decision of the Company.
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SECTION 6.5. CONFLICTS OF INTEREST.
(A) Neither the members of the Management Committee nor the
General Manager shall be required to devote full time to their duties hereunder
but shall devote reasonable time and effort thereto.
(B) Subject to Section 6.10 and the other provisions of this
Agreement, any Member or Affiliate of a Member may engage independently or with
others in other business ventures of every nature and description. Neither the
Company nor any Member shall have any right by virtue of this Agreement or the
relationship created hereby in or to any other ventures or activities in which
any Member or Affiliate of a Member is involved or to the income or proceeds
derived therefrom, subject to the terms of this Agreement The pursuit of other
ventures and activities by Members or Affiliates of a Member, even if directly
competitive with the Business, is hereby consented to by the Members and shall
not be deemed wrongful or improper, subject to the terms of this Agreement. No
Member or Affiliate of a Member shall be obligated to present any particular
business or investment opportunity to the Company even if such opportunity is of
a character which, if presented to the Company, could be taken by the Company,
and any Member or Affiliate of a Member shall have the right to take for
his/her/its own account (individually or as a member or fiduciary), or to
recommend to others, any such particular opportunity. Notwithstanding the
foregoing, the relationship of the Members as respects conflicts of interest in
competing businesses shall also be subject to the Marketing and Promotions
Agreement.
(C) No Member or any of its Affiliates, nor any officer,
director, employee or former employee of any Member or its Affiliates, shall be
deemed to be in breach hereof or have any obligation, or be liable, to any
Member or the Company for exercising any of the rights of such Member or such
Affiliate under this Agreement, or for exercising or failing to exercise its
rights hereunder, or for breach of any other duty to any Member or the Company
by reason of such conduct, other than an act which constitutes fraud or bad
faith.
SECTION 6.6. TRANSACTIONS WITH MEMBERS AND AFFILIATES. The Company may
enter into agreements with one or more Members or Affiliates of a Member to
provide leasing, management, legal, accounting, architectural, brokerage,
development or other services or to buy, sell or lease assets to or from the
Company, provided that any such transactions shall be unanimously approved by
the Management Committee and shall be at rates at least as favorable to the
Company as those available from unaffiliated parties. The validity of any
transaction, agreement or payment involving the Company and any Member or
Affiliate of a Member otherwise permitted hereunder shall not be affected by
reason of the relationship between such Person and the Company or any of its
Members. Despite the above, the Members agree that the Management Committee has
unanimously approved and accepted those agreements entitled the Administrative
Services Agreement by and between Bluegreen/Big Cedar Vacations, LLC and
Bluegreen Vacations Unlimited, Inc.; the Marketing and Promotions Agreement by
and between Bass Pro, Inc., Member BCLLC, Bluegreen Vacations Unlimited, Inc and
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the Company; the Operational Services and Integration Agreement by and between
the Company, Big Cedar Resort Club Owners Association, Inc. ("Owners
Association") and Member BCLLC; the Contribution Agreement by and between Member
Bluegreen and Member BCLLC; and the Servicing Agreement by and between Bluegreen
Corporation and the Company, together with those certain agreements as may exist
by and between Member Bluegreen or Affiliates of Member Bluegreen to provide
management services to the Owners' Association at the Big Cedar Timeshare
Project, title services, including title insurance, and exchange and/or
reservation services respecting use of the Big Cedar Timeshare Project (to be at
the expense of the timeshare user or participant) ("Approved Agreements").
SECTION 6.7. LIABILITY AND INDEMNIFICATION OF THE MANAGEMENT COMMITTEE,
GENERAL MANAGER, MEMBERS AND AFFILIATES.
(A) Neither any member of the Management Committee nor the
General Manager, a Member, or an Affiliate of a Member shall be liable,
responsible, or accountable in damages or otherwise to the Company or to the
Members for any action taken or failure to act on behalf of the Company unless
such action or omission constitutes fraud or bad faith.
(B) The Company shall, to the fullest extent permitted under
the Act, indemnify and hold harmless the members of the Management Committee,
the General Manager, the Members and their Affiliates from any loss, damage,
liability, or expense incurred or sustained by them by reason of any act
performed or any omission for or on behalf of the Company, including any
judgment, award, settlement, reasonable attorneys' fees, and other costs and
expenses (which may be advanced by the Company) incurred in connection with the
defense of any actual or threatened action, proceeding or claim.
(C) The members of the Management Committee, the General
Manger and each Member hereby agrees to indemnify and hold the Company wholly
and completely harmless from any liability, cost or damage that any such
indemnified party may incur (including reasonable legal and other expenses
incurred in defending against such liability, cost or damage) as a result of
such indemnifying party's fraud or bad faith. No amount paid hereunder shall be
treated as a capital contribution or a loan by the party making such payment.
SECTION 6.8. COMPENSATION AND REIMBURSEMENT OF THE MEMBERS.
(A) The Company shall not pay the Members any salary or other
compensation for acting as Members hereunder; provided, however that the Company
may pay a Member for goods received or services provided by that Member to the
Company pursuant to any authorized agreement by and between the Company and any
Member, including, but not limited to the Approved Agreements. The General
Manager shall receive a salary for serving in such capacity in such amounts and
on such terms as may be approved by the Management Committee.
(B) Except as set forth in this subsection (B), or otherwise
provided pursuant to any agreement entered into by and between the Company and a
Member (specifically to include those agreements referenced hereinabove in
Section 6.8(A), each Member shall be responsible for paying all expenses
necessary to permit such Member to carry out such Member's duties and
obligations hereunder and such expenses shall not be reimbursed by the Company
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or treated as a contribution to the capital of the Company by such Member. The
Company shall reimburse the members of the Management Committee and the General
Manager for all reasonable out-of-pocket expenses incurred by them in connection
with the discharge of their obligations under this Agreement in such capacity or
otherwise incurred by them on behalf of the Company.
(C) The rights to reimbursement under this Section shall not
be effected by the disallowance for tax purposes, in whole or in part, any
amounts reimbursed under the foregoing provisions of this Section.
SECTION 6.9. LIABILITY FOR COMPANY DEBTS AND OBLIGATIONS. No Member
shall be personally liable for any of the expenses, liabilities or obligations
of the Company except to the extent expressly provided in Sections 2.2, 6.8(C)
or 7.1(C), or in an agreement executed by such Member evidencing his or her
agreement to be personally liable for such expense, liability or obligation.
SECTION 6.10. NON-COMPETITION.
(A) Notwithstanding any other provision of this Section 6.10
or other provision of this Operating Agreement, the Members agree as follows:
(1) For the benefit of Member BCLLC and its
Affiliates, Member Bluegreen, on behalf of itself and its Affiliates, agrees
that neither it nor any of its Affiliates shall affiliate with, sell or offer
for sale outdoor recreational products or services of any entity which sells
such outdoor recreational products or services and which directly competes with
the outdoor recreational products and services of Bass Pro, Inc. or Tracker
Marine, LLC (Affiliates of Member BCLLC). The restrictions contained in this
subparagraph shall terminate in the event that Member BCLLC, Bass Pro, Inc. or
Tracker Marine, LLC file or have filed against them a bankruptcy proceeding.
(2) For the benefit of Member Bluegreen and its
Affiliates, Member BCLLC on behalf of itself and its Affiliates, agrees that
neither it nor any of its Affiliates shall sell, market, advertise or promote
any Resort Interest Program, excepting, however, the Big Cedar Timeshare
Project, the Bluegreen Vacation Club, or any Bluegreen Timeshare Facility as
offered by Member Bluegreen. Neither Member BCLLC nor its Affiliates shall
develop any Resort Interest Program, except (i) in accordance with Member
BCLLC's right to participate provided in Section 6.11, below; or (ii) in regard
to Fractional Interest Developments as provided herein. Neither Member BCLLC nor
any of its Affiliates shall affiliate with any entity for purpose of developing,
marketing, promoting or advertising any other Resort Interest Program, excepting
with Member Bluegreen and as excepting Fractional Interest Developments as
provided for in this Agreement. Member BCLLC may sell, develop, market,
advertise or promote a Fractional Interest Development if developed by Member
BCLLC or its Affiliates, so long as such Fractional Interest Development
contains no more than twenty-five (25) accommodations in the respective
Fractional Interest Development. Such Fractional Interest Developments may, by
way of example and not limitation, include projects owned or controlled by
Member BCLLC and its Affiliates, existing at Valhalla Island, Florida; Floridian
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Sports Club; Welaka, Florida; and Frying Pan River Ranch, Colorado. The
restrictions contained in this subparagraph shall terminate in the event Member
Bluegreen files or has filed against it a bankruptcy proceeding.
SECTION 6.11. RIGHTS TO PARTICIPATE. The Members agree as follows:
(A) MEMBER BCLLC'S RIGHT TO PARTICIPATE. It is acknowledged by
the Members that Member Bluegreen is in the business of developing, marketing
and selling timeshare projects. It is further acknowledged by the parties that
there may arise the occasion where a timeshare project developed by Member
Bluegreen may consider replicating the Big Cedar Timeshare Projects at other
locations. Member Bluegreen agrees that so long as Member BCLLC is not the
subject of a bankruptcy proceeding filed by or against it, Member BCLLC shall
have the exclusive, irrevocable and absolute right to "Participate" (as herein
defined) with Member Bluegreen in the development of future timeshare projects
founded upon replication of the Big Cedar Timeshare Project. A timeshare project
shall be deemed to be founded upon replication of the Big Cedar Timeshare
Project if it is founded upon an outdoor/wilderness/rustic theme, utilizing
lodges and cabins, irrespective of the selling price or the materials used to
construct the project, provided that such timeshare project is determined to be
architecturally substantially similar to the Big Cedar Timeshare Project with
use of the same materials as used in such project. The right to Participate of
Member BCLLC and the Company hereunder shall terminate in the event that Member
BCLLC files or has filed against it a bankruptcy proceeding and shall be subject
to the following:
(1) The right to Participate shall only apply to
future timeshare projects developed by Member Bluegreen as are located within
the United States and as are developed within ten (10) years from the date of
execution of this Operating Agreement, extended for any periods of time during
which the Marketing and Promotions Agreement made and entered into by and
between Member Bluegreen and Member BCLLC and its Affiliate, Bass Pro, Inc., may
be extended; provided that the right to Participate shall only apply so long as
(a) the identity of the partners, general and limited, within Member BCLLC and
their respective owners are the same at the time of election to Participate as
they are upon execution of this Agreement, or (b) if not the same, so long as
▇▇▇▇ ▇. ▇▇▇▇▇▇, his heirs or estate planning trustees have a material
involvement with any substitute partner and, in all events, so long as such
partners are not in competition with Member Bluegreen, nor are any competitors
of Member Bluegreen otherwise involved nor participating therein.
(2) The Right to Participate shall mean the right to
co-develop and/or provide marketing and promotional services as such
co-development or providing of services may be mutually agreed to by Member
BCLLC and Bass Pro, Inc. on the one hand, and Bluegreen Vacations Unlimited,
Inc. on the other.
(3) Any election by Member BCLLC to participate shall
be effective only if Member BCLLC, Member Bluegreen and Bass Pro, Inc. and its
respective Affiliates execute a letter of understanding documenting their mutual
agreement as to co-development and marketing and promotional services as relate
to the proposed future timeshare project within sixty (60) days after Member
BCLLC receives written notice from Member Bluegreen of its intent to develop an
additional timeshare project meeting the requirements set forth hereinabove.
Such notice by Member Bluegreen shall include a reasonable description of the
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timeshare project. Such information as included in the notice shall be
maintained by Member BCLLC as confidential information which may be disclosed by
Member BCLLC only to inform Bass Pro, Inc. and their respective advisors, legal
counsel, consultants and senior executives who have a need to know such
information, and otherwise be disclosed only as required by applicable law. If
Member BCLLC elects not to Participate or fails to perform as aforesaid, then
Member Bluegreen may proceed with any additional timeshare projects without
Participation or involvement of Member BCLLC. The right of Member BCLLC in this
paragraph shall terminate if Member BCLLC files or has filed against it a
bankruptcy proceeding.
(B) MEMBER BLUEGREEN'S RIGHT TO PARTICIPATE.
(1) If Member BCLLC or its Affiliates develop a
respective Fractional Interest Development as above referred to (or develop any
resort interest program as otherwise may be interpreted as permitted under this
Agreement), and determine that the same is to be developed through the
participation of an additional investor, whether by joint venture, limited
liability company, or otherwise, then Member BCLLC and its Affiliates agree that
so long as Member Bluegreen is not the subject of a bankruptcy proceeding filed
by or against it, the first option and right to so participate is hereby granted
and shall be made available to Member Bluegreen and its Affiliates. Prior to
offering any participation to any other party in any such Fractional Interest
Development (or any other permitted resort interest development as may be
interpreted as acceptable under the terms of this Agreement), Member BCLLC and
its Affiliates shall provide the Right to Participate to Member Bluegreen. The
right of Member Bluegreen to participate as herein provided shall be for ten
(10) years from the date of execution of this Operating Agreement, extended for
any period of time during which the Marketing and Promotions Agreement may be
extended.
(2) Any election by Member Bluegreen to participate
shall be effective only if Member Bluegreen and Member BCLLC execute a letter of
understanding documenting their mutual agreement as to Member Bluegreen's right
to participate as relates to the Fractional Interest Development or other
permitted Resort Interest development within sixty (60) days after Member
Bluegreen receives written notice from Member BCLLC of its intent to develop a
Fractional Interest Development or other permitted Resort Interest development.
Such notice by Member BCLLC shall include a reasonable description of the
proposed development. Such information as included in the notice shall be
maintained by Member Bluegreen as confidential information which may be
disclosed by Member Bluegreen only to inform their respective advisors, legal
counsel, consultants and senior executives of Member Bluegreen who have a need
to know such information otherwise be disclosed only as required by applicable
law. If Member Bluegreen elects not to participate or fails to perform as
aforesaid, then Member BCLLC may proceed with such respective Fractional
Interest Development without participation or involvement of Member Bluegreen.
The Right to Participate contained in this paragraph shall terminate in the
event that Member Bluegreen files or has filed against a bankruptcy proceeding.
If Member Bluegreen elects not to Participate, or fails to perform as aforesaid,
then Member BCLLC may proceed without Participation or involvement of Member
Bluegreen.
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ARTICLE 7. TRANSFERS OF INTERESTS
SECTION 7.1. RESTRICTIONS.
(A) Except as provided in this Section 7.1and each sub-part
hereof, no Member (or Successor) may, without the prior consent of all of the
Members not then in default hereunder, effect a Transfer of all or any part of
his or her Interest. "Transfer" means any voluntary or involuntary transfer,
sale, assignment, exchange, encumbrance, charging order or hypothecation or
other disposition.
(B) Voluntary Transfers in violation of the provisions hereof
shall be void and of no effect for any purpose. Members who have effected
Transfers of all of their Interests shall have no further right, authority,
and/or responsibility to participate in the management of the business and
affairs of the Company.
(C) Each party hereto acknowledges the reasonableness of the
restrictions on Transfer imposed by this Agreement in view of the Company
purposes and the relationship of the Members. Accordingly, the restrictions on
Transfer contained herein shall be specifically enforceable. Each party hereto
hereby further agrees to hold the Company and each Member (and such Member's
Successors) wholly and completely harmless from any cost, liability, or damage
(including reasonable attorneys' fees, liabilities for income taxes, and the
cost of enforcing this indemnity) incurred by any of such indemnified Persons as
a result of a Transfer or an attempted Transfer by such party in violation of
this Agreement.
(D) Notwithstanding any provisions contained hereinabove, the
Members agree that ▇▇▇▇ ▇. ▇▇▇▇▇▇ and his heirs and estate planning trustees may
transfer their interests in Member BCLLC from and after the date hereof to an
entity which is controlled by ▇▇▇▇ ▇. ▇▇▇▇▇▇, provided, however, that (i)
neither the LLC nor Member Bluegreen, nor any Affiliate of Member Bluegreen
shall be subject to any liability, expense, cost or obligation arising or
resulting from such assignment; (ii) ▇▇▇▇ ▇. ▇▇▇▇▇▇ and Member BCLLC shall
indemnify the LLC, Member Bluegreen and any Affiliate of Member Bluegreen from
any costs expenses, liabilities or obligations as might arise or result from
such assignment; and (iii) legal counsel to Member BCLLC and ▇▇▇▇ ▇. ▇▇▇▇▇▇
shall provide an opinion to the LLC. Member Bluegreen and any Affiliate of
Member Bluegreen that, to the best of their knowledge, information and belief,
after due inquiry and investigation, such assignment is valid, enforceable and
in compliance with applicable law.
SECTION 7.2. EFFECT OF ASSIGNMENT; DOCUMENTS.
(A) All whole or partial Interests Transferred pursuant to the
provisions of this Article VII shall be subject to the restrictions and
obligations set forth in this Agreement and no Transfer of a whole or partial
Interest otherwise permitted hereunder (except for a pledge or collateral
assignment to another Person) shall be effective for any purpose unless and
until the party to whom such Interest is being Transferred has executed this
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Agreement (as amended) and agreed to be bound by all of its terms and
provisions. Unless otherwise expressly agreed by the Members or expressly
provided herein, no Transfer permitted hereunder shall relieve the assignor from
any of its obligations under this Agreement accruing prior to such Transfer.
(B) In the event ownership of any whole or partial Interest is
transferred to any other Person in accordance with the provisions set forth in
this Article VII, the successor to such Interest (a "Successor") shall succeed
to such Interest as an assignee only under the Delaware Act and shall have no
right, except as provided in (C) below, to become a substitute Member or to
participate in the management of the business and affairs of the Company and
shall not be considered a "Member" under this Agreement or be a "member" as that
term is used in the Act with respect to such Interest; PROVIDED, HOWEVER, that
such Successor shall, in addition to the other rights and obligations of a
Successor herein expressly set forth, 1) be liable for the obligations of his or
her assignor under this Agreement attributable to such Interest; (2) be subject
to the continuing obligations attributable to such Interest under this
Agreement; and (3) be entitled to receive the distributions attributable to such
Interest under Articles III and VIII and allocations of profits and losses (and
items) under Article IV.
ARTICLE 8. DISSOLUTION OF THE COMPANY
SECTION 8.1. LIQUIDATION EVENTS.
(A) No act, thing, occurrence, event, or circumstance shall
cause or result in the dissolution of the Company except that the earliest to
occur of any of the following events (a "Liquidation Event") shall work an
immediate dissolution of the Company:
(1) December 31, 2050;
(2) The sale or other disposition of all or
substantially all of the Business Property;
(3) A decision to do so approved by all Members; or
(4) Subject to Section 8.2 below, any event (each a
"Dissociation Event") described in Section 18-801 of the Act occurring with
respect to a Member; PROVIDED, HOWEVER, that the Members hereby agree that, upon
the occurrence of (a) a permitted Transfer in accordance with the provisions of
Article VII; or (b) a voluntary withdrawal of a Member in violation of the terms
of this Agreement, the business and affairs of the Company shall be
automatically continued by the Company and such event shall not constitute a
Dissociation Event for purposes of this Agreement.
(B) Notwithstanding any provision of the Act, each Member
hereby covenants and agrees that the Members have entered into this Agreement
based on their mutual expectation that all Members will continue as Members and
carry out the duties and obligations undertaken by them hereunder and that,
except as otherwise expressly required or permitted hereby, each Member
covenants and agrees not to (1) take any action to dissolve the Company; (2)
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take any action that would cause a bankruptcy of such Member; (3) voluntarily
withdraw or attempt to withdraw from the Company; (4) exercise any power under
the Act to dissolve the Company; or (5) petition for judicial dissolution of the
Company, without the unanimous consent of the Members not then in default
hereunder.
SECTION 8.2. RIGHT TO CONTINUE BUSINESS AND AFFAIRS OF COMPANY.
(A) Upon the occurrence of a Dissociation Event with respect
to a Member (the "Dissociation Member"), the Dissociating Member shall give
notice thereof to the other Members and such remaining Member(s) may, within the
ninety (90) day period following such occurrence, elect, by agreement of Members
collectively holding more than fifty percent (50%) of the Distribution
Percentages then held by Members, to continue the business and affairs of the
Company for the balance of the term hereof (it being understood that if such an
agreement is not executed within such ninety (90) day period, the Dissociation
Event shall constitute a Liquidation Event). In the event any Member acquires
knowledge of a Dissociation Event, that Member shall promptly give notice
thereof, specifying the nature of the Dissociation Event and the identity of the
Dissociating Member, to the Company and all of the other Members (including the
Dissociating Member) and such notice shall be deemed to be notice from the
Dissociating Member for purposes of this Section.
(B) If the remaining Member(s) so elect to continue the
business and affairs of the Company:
(1) The Company shall not dissolve and its business
and affairs shall be carried on without interruption, and without the necessity
of the execution of any confirmatory agreement, under the same name and under
the same terms and provisions as are set forth in this Agreement (as the same
may be amended by the remaining Members); and
(2) The Management Committee shall take such steps
and make such filings as may be required to reflect such Dissociation Event and
the continuation of the business and affairs of the Company.
SECTION 8.3. DISTRIBUTION OF PROCEEDS ON DISSOLUTION; WINDING UP;
RESERVES.
(A) Upon the Occurrence of a Liquidation Event, the Company
shall continue solely for the purposes of winding up its affairs in an orderly
manner, liquidating its assets, and satisfying the claims of its creditors and
Members and neither the Management Committee nor any General Manager or Member
shall take any action that is inconsistent with, or not necessary to or
appropriate for, winding up the Company's business and affairs. To the extent
not inconsistent with the foregoing, all covenants and obligations in this
Agreement shall continue in full force and effect until such time as Dissolution
Proceeds have been distributed pursuant to this Section 8.4 and the Company has
filed articles of termination.
(B) The General Manager or, if there is no General Manager, a
Member appointed by the Management Committee (in either case, the "Winding-Up
Member") shall be responsible for overseeing the winding up and liquidation of
the Company. As soon as reasonably practical after the occurrence of a
Liquidation Event, the Winding-Up Member shall file a notice of winding up and
take such other actions as are required under the Act to dispose or make
provision for the known and unknown claims against the Company. After filing the
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notice of winding up, the Winding-Up Member shall take full account of the
Company's liabilities and the Business Property, cause the Business Property to
be liquidated as promptly as is consistent with obtaining the fair value
thereof, and shall cause the proceeds therefrom and any other assets and funds
of the Company (collectively, the "Dissolution Proceeds") to the extent
sufficient therefor, to be applied and distributed in the following order:
(1) First, to the payment of all unpaid secured
indebtedness of the Company to the extent of the lesser of the value of the
secured property or the amount of the secured indebtedness;
(2) Second, to the payment of the Company's remaining
indebtedness, including any outstanding indebtedness under the Ad Loan, any Call
Loan and any Member Loans (but excluding any other Distributions to Members or
Successors), but if the amount available therefor shall be insufficient, then
pro-rata on account thereof; and
(3) Third, the balance, if any, less such reserves
("Dissolution Reserves") as the Winding-Up Member reasonably determines are
necessary or appropriate for anticipated or contingent expenses of the Company,
shall be distributed to the Members and Successors pro-rata in accordance with
their positive Capital Account balances.
(C) To the extent the Winding-Up Member subsequently
determines Dissolution Reserves (or any part thereof) to be unnecessary for
Company expenses, he or she shall cause such amounts to be distributed or paid
to the Members, Successors, or other Persons who would have received the
proceeds comprising such Dissolution Reserves under this Section 8.3 as if such
proceeds had not been used to fund Dissolution Reserves.
(D) When all of the remaining property and assets of the
Company have been applied and distributed as provided in this Section 8.4, the
Winding-Up Member shall file articles of termination as provided in the Act and
take such other actions as may be necessary to cause the Company to withdraw
from all jurisdictions where the Company is then authorized to transact
business.
SECTION 8.4 NO LIABILITY. Each Member and Successor shall look solely
to the assets of the Company for all distributions with respect to the Company
and his or her capital contributions thereto and share of profits or losses
thereof, and shall have no recourse therefor against any Member or Successor;
PROVIDED, HOWEVER, that nothing herein contained shall relieve any Member or
Successor of his or her obligation to make the required capital contributions
herein provided or to pay any liability or indebtedness or perform any indemnity
owing the Company or any other Member or Successor by such Member or successor
by reason of this Agreement, and the Company and the other Members and
Successors shall be entitled at all times to enforce such obligations of such
Member or Successor.
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ARTICLE 9. GENERAL
SECTION 9.1 NOTICES/APPROVALS TO BE IN WRITING. Any notice, request,
approval, consent, demand or other communication required or permitted hereunder
shall be given in writing by (A) personal delivery; or (B) expedited delivery
service with proof of delivery; or (C) United States Mail, postage prepaid,
registered or certified mail, return receipt requested; or (D) prepaid telegram,
facsimile, or telex, sent to the Company at the address set forth in Section 1.5
and/or the party to whom the communication is directed at the address set forth
on Exhibit A, or to such different address as the addressee shall have
designated by written notice sent in accordance herewith, and shall be deemed to
have been given and received either at the time of personal delivery or, in the
case of delivery service or mail, as of the date of first attempted delivery at
the address and in the manner provided herein, or in the case of such a
confirmed telegram, facsimile, or telex, upon receipt.
SECTION 9.2 AMENDMENTS. Except as otherwise provided in Section 9.6,
this Agreement may be amended only by agreement executed by all the Members.
SECTION 9.3 MISCELLANEOUS. Time is of the essence with respect to this
Agreement. This Agreement and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of
Delaware. Except as herein otherwise specifically provided, this Agreement shall
be binding upon and inure to the benefit of the parties and their legal
representatives, successors and assigns. Captions contained in this Agreement in
no way define, limit or extend the scope or intent of this Agreement. If any
provision of this Agreement, or the application of any such provision to any
Person or circumstance shall be held to be illegal, invalid or unenforceable
under present or future laws effective during the term hereof, the remainder of
this Agreement, or the application of such provision to any other Persons or
circumstances, shall not be affected thereby and shall be construed and enforced
as if such illegal, invalid, or unenforceable provision had never comprised a
part hereof. In lieu of such illegal, invalid, or unenforceable provision, there
shall be added automatically as a part hereof a provision as similar in terms to
such illegal, invalid or unenforceable provision, as may be possible and be
legal, valid and enforceable. Every exhibit, schedule and other appendix
attached to this Agreement and referred to herein is incorporated in this
Agreement by reference. All capitalized terms are defined herein and are used as
so defined. This Agreement may be executed in several counterparts and all so
executed shall constitute one Operating Agreement, binding on all the parties
hereto, notwithstanding that all the parties are not signatories to the original
or same counterpart. Should a provision of this Agreement require judicial
interpretation, it is agreed that the judicial body interpreting or construing
the same shall not apply the assumption that the terms hereof shall be more
strictly construed against one party by reason of the rule of construction that
an instrument is to be more strictly construed against the party which itself,
or through its agent, prepared the same, it being agreed that the agents of all
parties have participated or had the opportunity to participate in the
preparation of this Agreement.
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SECTION 9.4 REMEDIES.
(A) If the Company or any party obtains a judgment against any
other party by reason of breach of this Agreement, a reasonable attorneys' fee
as fixed by the court shall be included in such judgment. Any Member shall be
entitled to maintain, on its own behalf or on behalf of the Company, any action
or proceeding against any other Member, Successor, or the Company (including,
any action for damages, specific performance, or declaratory relief) for or by
reason of breach by such party of this Agreement, notwithstanding the fact that
any or all of the parties to such proceeding may then be Members in the Company,
and without dissolving the Company as a limited liability company; provided,
however, that liability of any Member, successor or the Company for or by reason
of breach by such party of this Agreement, shall be limited as set forth herein.
(B) The remedies conferred upon the Company or any Member or
Successor in this Agreement are intended to be exclusive of any other remedy
herein or by law provided or permitted. No failure or delay on the part of a
Member or the Company to exercise any right it may have in the event of an act
or omission giving rise to a claim hereunder in accordance with the terms of
this Agreement by a Member shall prevent the exercise of such right by such
Member or the Company at any time such Member defaulting as provided for in this
Agreement, may continue to be so in default, and no such failure or delay shall
operate as a waiver of any default. Notwithstanding the limitations of liability
as provided for in this Agreement, each party to this Agreement agrees that the
Members would be irreparably damaged if any of the provisions of this Agreement
are not performed in accordance with their specific terms and that monetary
damages would not provide an adequate remedy in such event. Accordingly, it is
agreed that, in addition to the remedies to which the nonbreaching Members may
be entitled in accordance with the terms hereof the nonbreaching Members shall
be entitled to injunctive relief to prevent breaches of the provisions of this
Agreement and specifically to enforce the terms and provisions hereof in any
action instituted in any court of the United States or any state thereof having
subject matter jurisdiction thereof.
(C) No waiver by a Member or the Company of any breach of this
Agreement shall be deemed to be a waiver of any other breach of any kind or
nature and no acceptance of payment or performance by a Member or the Company
after any such breach shall be deemed to be a waiver of any breach of this
Agreement whether or not such Member or the company knows of such breach at the
time it accepts such payment or performance.
(D) The Members intend for the purpose and objectives of the
Company to be reached and to that extent, they shall not unreasonably withhold
their consent or approval.
(E) In the event of any dispute or disagreement between the
Members, such party shall give written notification of such dispute or
disagreement to, if such party is BCLLC or any their Affiliates, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
or the person then performing the duties at Bluegreen currently performed by
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("BXG, CEO") and if such party is Bluegreen, acting as Bluegreen,
Bluegreen Affiliates or the LLC, to ▇▇▇▇ ▇. ▇▇▇▇▇▇, or the person performing the
duties at BCLLC currently performed by ▇▇▇▇ ▇. ▇▇▇▇▇▇ ("Marketer, CEO"); and
(iii) the CEOs shall communicate with each other promptly with a view to
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resolving such dispute or disagreement within ninety (90) days of commencing any
negotiations (or such extended period as the CEOs agree is appropriate in any
such case). The foregoing shall be a condition precedent to applicability of the
Remedies section, as provided in this paragraph 9.4. During any period of such
communications, all services prior to any claimed default shall continue without
any alteration or modification, except as acceptable to the party receiving such
services.
SECTION 9.5 REPRESENTATIONS AND WARRANTIES. Each Member warrants,
represents, agrees and acknowledges: (1) that he or she has adequate means of
providing for his or her current needs and foreseeable future contingencies, and
anticipates no need now or in the foreseeable future to sell his or her
Interest; (2) that he or she is acquiring his or her Interest for his or her own
account as a long-term investment and without a present view to make any
distribution, resale or fractionalization thereof; (3) that he/she and his/her
independent counselors have such knowledge and experience in financial and
business matters that they are capable of evaluating the merits and risks of the
investment involved in his or her acquisition of his or her Interest and they
have evaluated the same; (4) that he or she is able to bear the economic risks
of such investment; (5) that he/she and his/her independent counselors have made
such investigation of the Company (including its business prospects and
financial condition) and the Members have had access to all information
regarding the Company and the Members, and have had an opportunity to ask all of
the questions regarding the Company and the Members as they deem necessary to
fully evaluate his or her investment therein; (6) that in connection with his or
her acquisition of an Interest, he or she has been fully informed by his or her
independent counsel as to the applicability of the requirements of the
Securities Act of 1933 and all applicable state securities or "blue-sky" laws to
his or her Interest; (7) that he or she understands that (a) his or her Interest
is not registered under the Securities Act or any state securities law; (b)
there is no market for his or her Interest and that he or she will be unable to
transfer his or her Interest unless such is so registered or unless the transfer
complies with an exemption from such registration (evidence of which must be
satisfactory to counsel for the Company); (c) such Interest cannot be expected
to be readily transferred or liquidated; and (d) his or her acquisition of an
Interest in the Company involves a high degree of risk; and (e) that no
representations are or have been made to him or her by the Management Committee,
any Member, or their respective representatives as to any tax advantages which
may inure to his or her benefit or as to the Company's status for tax purposes,
and that he or she has relied upon his or her independent counsel with respect
to such matters.
SECTION 9.6 POWER OF ATTORNEY.
(A) Each Member and Successor hereby irrevocably makes,
constitutes, and appoints the members of the Management Committee as his or her
true and lawful attorneys-in-fact to make, execute, sign, acknowledge and file
with respect to this or any successor Company;
(1) Such amendments to or restatements of the
Company's Articles of Organization as may be required or appropriate pursuant to
the provisions of this Agreement, or otherwise under the Act;
(2) Any and all amendments or changes to this
Agreement and the instruments described in subsection (1), as now or hereafter
amended, which the Management Committee may deem necessary or appropriate to (a)
effect a change or modification of the Company approved in accordance with the
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terms of this Agreement, as amended, or (b) reflect (i) the exercise by the
Management Committee of any power granted to them under this Agreement; (ii) any
amendments adopted by the Members in accordance with the terms of this
Agreement; (iii) the appointment of a successor member of the Management
Committee or General Manager under Section 6.1; (iv) the admission of any
substituted Member in accordance with Section 7.4; (v) the disposition by any
Member of its Interest in compliance herewith; and (vi) the occurrence of any
Dissociation Event or other event described in Section 347.123 of the Act if the
Company is not dissolved and the Business is continued;
(3) Any notice of winding up, articles of
termination, cancellation of foreign registration, or other documents or
instruments which may be deemed necessary or desirable by the Management
Committee to effect the dissolution and liquidation of the Company after its
termination as provided herein;
(4) All such other instruments, documents and
certificates which may from time to time be required by the laws of the State of
Delaware, the United States of America, or any political subdivision or agency
thereof, to effectuate, implement, continue and defend the valid and subsisting
existence of the Company and any other instruments, documents, or certificates
required to qualify the Company to do business in any other state where it is
required to so qualify;
(B) The parties hereto hereby agree that the grant of the
foregoing power of attorney is coupled with an interest and shall survive (1)
the death, disability, legal incapacity, bankruptcy, insolvency, dissolution or
cessation of existence of a Member or Successor; and (2) the delivery of an
assignment by any Member or Successor of the whole or any part of his or her
Interest in the Company, except that where an assignee of such Interest has been
admitted as a substitute Member, as provided in Section 7.2, then the foregoing
power of attorney of the assignor Member shall survive the delivery of such
assignment for the sole purpose of enabling the Management Committee to execute,
acknowledge and file any and all instruments necessary to effectuate such
substitution.
SECTION 9.7 FINANCIAL REPORTING. In addition to the requirements set
forth in Section 5.1(A), the Management Committee, at respective meetings
thereat, shall periodically, and at no time less than quarterly, establish
financial reporting in respect to the Company, which financial reporting shall
be delivered to Member BCLLC and Member Bluegreen, and which financial reporting
shall be a compilation of sales of timeshare interests, income arising
therefrom, and expenses of the Company, inclusive of marketing, sales and
operating expenses. Such financial reporting shall include an income statement,
balance sheet, financial statement or other information as may be reasonably
required.
ARTICLE 10. PUBLIC OFFERING
Section 10.1 Upon agreement of all Members, the Company may conduct a
public offering of all or part of its ownership Interests on such terms as they
may agree. If all the Members so agree, they may effect a conversion of
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ownership Interests from those of a limited liability company to ownership in a
corporation.
Section 10.2 This Section is severable from the balance of this
Agreement and shall be disregarded in construction of this Agreement.
ARTICLE 11. TRANSFER OF PROPERTY/CLUB ARRANGEMENT
(A) Notwithstanding any other provisions contained herein to
the contrary, Member Bluegreen, acting by and through any of its authorized
representatives, is expressly authorized to transfer and convey timeshare
interests as may exist in the Big Cedar Timeshare Project to purchasers thereof
and accept therefor instruments of indebtedness relating to the sale and
transfer of such timeshare interests, and is further authorized to sell or
pledge such instruments of indebtedness, including promissory notes, mortgages
or deeds of trust received from consumer purchasers of timeshare interests,
which sales or pledges may be to such third party entities as in the discretion,
from time to time, determined by Member Bluegreen. In furtherance thereof,
Member Bluegreen may transfer, whether by sale, pledge or otherwise, any and all
collateral related to the sale of such timeshare interests as such third party
may request, including but not limited to consumer transaction documents
relating to the sale of timeshare interests which accompany the deed of trust
and promissory note related thereto. In addition, Member Bluegreen, acting by
and through any of its authorized representatives, is expressly authorized to
arrange and implement the involvement or inclusion of the Big Cedar Timeshare
Project in the Bluegreen Vacation Club, and to provide for registration,
marketing and sale of the timeshare interests in the Big Cedar Timeshare Project
as a part of or otherwise affiliated with the Bluegreen Vacation Club.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
BLUEGREEN VACATIONS UNLIMITED, INC. A
FLORIDA CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Please Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: President
BIG CEDAR, L.L.C., a Missouri Limited
Liability Company
By: Three ▇▇▇▇▇ Company, a Missouri
corporation, its Sole Member
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Please Print Name:: ▇▇▇▇ ▇ ▇▇▇▇▇▇
Its: Vice President Finance
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EXHIBIT A
NAMES, ADDRESS, CONTRIBUTIONS AND DISTRIBUTION
PERCENTAGES OF MEMBERS
Member Name and
Address Contribution Distribution Percentage
Bluegreen Vacations Cash in the amount of $70,000.00 51%
Unlimited, Inc. multiplied by acreage shown on the
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Survey referred to herein,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ being $3,229,800.00
Big Cedar, L.L.C. The Property having an agreed capital 49%
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ contribution value of $70,000.00 multiplied
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ by acreage shown on the Survey referred to
herein, being a value of $3,229,800.00
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