EXHIBIT 10.13
=================================================================
FORM OF
AMENDED AND RESTATED REGULATIONS AND
OPERATING AGREEMENT
OF
------------
=================================================================
Pursuant to the provisions of the Limited
-----
Liability Company Act, (the "Company"), a limited
-----------
liability company which is subject to the provisions of the
aforesaid Limited Liability Company Act, hereby adopts the
hereinafter Amended and Restated Regulations and
------
Operating Agreement of its Operating Agreement dated as of
(the "Agreement"). Although this writing amends in
----------
its entirety the Agreement, it is not intended by the parties to
create a new limited liability company, but rather to confirm the
continuation of existence of the existing Company, without
interruption, while providing for (i) the transfer by Grand Court
Lifestyles, Inc. a Delaware corporation ("Grand Court"), the sole
member and the sole manager of the Company, of a portion of its
interest in the Company to (" ") and (iii) other
-------- ---
various amendments to the Agreement in the manner hereinafter
provided.
THE AMENDED AND RESTATED REGULATIONS AND OPERATING
AGREEMENT OF is made and entered as of by and
---- -----,
among Grand Court, and
----.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Sale and Assignment Agreement
dated as of 1999, a copy of the form of which is attached
----,
hereto as Exhibit A, by and among Grand Court, and Grand
------,
Court transferred to fifty percent (50%) of its interest
------
in the Company; and
WHEREAS, the parties hereto desire that be
-----
admitted into the Company as a Member (as such term is
hereinafter defined) of the Company; and
WHEREAS, the parties hereto, each intending to be
legally bound hereby under the laws of the State of Texas, desire
to amend in the manner hereinafter set forth, and to redefine and
restate in its entirety, the Agreement, while continuing the
Company heretofore formed, without interruption (hereinafter the
Agreement as amended and restated by this Amended and
-----
Restated Regulations and Operating Agreement shall be called the
"Agreement"); and
NOW, THEREFORE, in consideration of the mutual promises
of the parties hereto and of other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties do hereby covenant and agree as
follows:
1. Grand Court assigns fifty percent (50%) of its interest
as a member of the Company to .
----
2. desires to, and hereby does, accept the
------
assignment by Grand Court of fifty percent (50%) of Grand
Court's interest as a member of the Company.
3. All of the actions described in paragraphs 1 and 2
above shall be deemed to have occurred simultaneously.
4. By this writing, the parties hereto hereby amend,
redefine and restate, in its entirety, the Agreement, so that
said document shall for all purposes hereafter read as
hereinafter set forth.
ARTICLE I
DEFINED TERMS
-------------
1.1 Defined Terms. Capitalized words and phrases used
-------------
in this Agreement have the following meanings:
"Act" means the Texas Limited Liability Company Act, as
---
currently in effect and as may be amended from time to time.
"Capital Account" means an account established and
---------------
maintained for each Member pursuant to Section 5.1 hereof. The
initial Capital Account Balances shall be based upon the Capital
Accounts of the Members as reflected on Schedule A attached
hereto.
"Capital Transaction" shall mean (i) a sale or other
-------------------
disposition by the Company of all or any part of its assets
(other than sales in the ordinary course of business), (ii)
refinancing or recasting of any mortgage loan or secondary
financing of the Company, (iii) advances or additional advances
under any mortgage loan to the Partnership or the Operating
Partnership, (iv) any sale-leaseback of the Company's property,
(v) the taking or condemnation by any right of eminent domain of
any part of the Company's property, or (vi) the destruction, in
whole or in part, of the Company's property whether by fire,
other casualty, or any other cause.
"Capital Transaction Gain" or "Capital Transaction
----------------------- -------------------
Loss" shall mean the Company's taxable gain or loss,
----
respectively, with respect to a Capital Transaction.
"Cash from Capital Items" shall mean the net cash
-----------------------
proceeds from any Capital Transaction received by the Company,
after deducting (a) an amount sufficient to satisfy any unpaid
principal and interest on loans from third parties, (b) an amount
sufficient to satisfy any advances to the Company by the members,
and (c) funds used, or applied for the establishment of any
reasonable reserves, for working capital, or for alterations,
repairs of capital improvements or other uses deemed advisable by
the members whether or not for the foregoing purposes, provided
--------
that as the unused balance of such reserves are no longer needed
to be reserved, the same shall thereupon be deemed Cash from
Capital Items (such reserves to be deemed to include, without
limitation, accruals for all management and other fees payable
under any agreements with any member or any affiliate of any
member).
"Code" means the Internal Revenue Code of 1986 of the
----
United States of America, as amended, or any corresponding
provision or provisions of any succeeding law.
"Company" means
------- ------------.
"Fiscal Year" means for both accounting and U.S. income
-----------
tax purposes the calendar year, except that the first Fiscal Year
of the Company shall be the period from the formation of the
Company to December 31 of the same calendar year, and upon any
termination of the Company on a date other than December 31, the
final Fiscal Year of the Company shall be the period from the end
of the immediately preceding Fiscal Year to the date of such
termination.
"Liquidation" has the meaning ascribed thereto in
-----------
Section 11.3 hereof.
"Liquidation Proceeds" has the meaning ascribed thereto
--------------------
in Section 11.3 hereof.
"Liquidating Member" means Grand Court. If there shall
------------------
be more than one Member, it shall mean the Member selected for
such position by the vote of a majority of the Members.
"Loss(es)" means net losses other than Capital
--------
Transaction Loss as determined under U.S. income tax accounting
principles.
"Manager" means Grand Court and each of the parties who
-------
may hereafter become an additional or substitute Manager.
"Members" means Grand Court and and each of the
------- ------
parties who may hereafter become an additional or substitute
Member.
"Net Cash Flow" means, for each Fiscal Year or other
-------------
period, an amount equal to the excess, if any, of (a) the gross
receipts from operations of the Company from all sources, over
(b) all cash expenditures of the Company due to operations,
including (i) debt service under any indebtedness incurred by the
Company, (ii) taxes and governmental fees, and (iii) reserves
established from time to time in such amounts, at such times and
for such purposes as the Members shall, in their reasonable
discretion, determine. Net Cash Flow shall not be reduced by
depreciation, amortization, cost recovery deductions, or similar
allowances, but shall be increased by any reductions of reserves
previously established pursuant to this Agreement.
"Person" means any individual, partnership, joint
------
venture, association, corporation, trust or other entity.
"Profit(s)" mean net profits other than Capital
---------
Transaction Gain as determined under U.S. income tax accounting
principles.
"Treasury Regulations" mean the regulations promulgated
--------------------
by the U.S. Treasury Department with respect to the Code, as such
regulations are amended from time to time, or corresponding
provisions of future regulations.
ARTICLE II
ORGANIZATION
------------
2.1 Formation. The Members hereby forms, pursuant to
---------
the Act, a limited liability company for the purposes and upon
the terms and conditions hereinafter set forth.
2.2 Name. The name of the Company shall be
---- --------.
All business of the Company shall be conducted under such name.
The Members may change the name of the Company in accordance with
the provisions of the Act.
2.3 Registered Office; Registered Agent; Principal
----------------------------------------------
Place of Business. The location of the registered office of the
-----------------
Company shall be The Company's registered agent at
--------.
such address shall be Capitol Commerce Reporter, Inc. The
Company's principal place of business shall be at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.
2.4 Purpose. The Company's business and purpose shall
-------
consist solely of the construction, ownership, operation and
management of an adult living center to be constructed in
and such activities as are necessary, incidental or
---------
appropriate in connection therewith.
2.5 Term. The Company shall continue in existence
----
from the date hereof until December 31, 2020, or until terminated
in accordance with the provisions of this Agreement, whichever
shall occur earlier.
2.6 Meetings. All meetings of the Members shall be as
--------
set forth in the Act.
2.7 Member Determinations. Except as otherwise
---------------------
provided herein, all actions by the Members may be approved by a
majority in interest of the Members voting on such matter.
Except as otherwise provided herein, Grand Court and are
-------
each 50% members of the Company.
ARTICLE III
MANAGEMENT
----------
3.1 Management. (a) The management of the Company
----------
shall be vested in Grand Court and such officers to whom it
delegates authority. If there shall be more than one Manager,
any Manager shall have the authority to sign agreements and other
instruments on behalf of the Company in the ordinary course of
business without the joinder of any other Manager.
(b) The Manager may engage in other business
activities and shall be obliged to devote only as much of its
time to the Company's business as shall be reasonably required
for the efficient operation of the Company's business and
objectives. The Manager shall perform its duties as a manager in
good faith, in a manner it reasonably believes to be in the best
interest of the Company, and with such care as an ordinarily
prudent person in a like position would use under similar
circumstances. A person or corporate entity who so performs his
or its duties shall not have any liability by reason of being or
having been a Manager of the Company.
(c) The Manager is an agent of the Company for
the purpose of its business, and the acts of the Manager,
including the execution in the Company name of any instrument for
apparently carrying on in the usual way the business of the
Company, binds the Company, unless such act is in contravention
of this Agreement or unless the Manager so acting otherwise lacks
the authority to act for the Company and the person with whom it
is dealing has knowledge of the fact that he has no such
authority.
3.2 Powers of the Manager. The Manager shall have the
---------------------
right and authority to take all actions which it deems necessary,
useful or appropriate for the day-to-day management and conduct
of the Company's business. In particular, the Manager shall:
(a) Assist the Company in the preparation and
filing with relevant authorities various returns, reports or
other documents required by the laws and regulations of the
United States and the State of
-------;
(b) Review the appropriateness, and arrange for
payments, of the expenses incurred in connection with the
operations of the Company;
(c) Pay all expenses of the Company, (including
any organizational expenses, legal fees, and administrative
expenses; and
(d) Perform such other services as may be deemed
necessary for the operation of the Company.
(e) Borrow money for the Company's business,
execute any and all agreements or documents required for such
borrowing and pledge the Company's assets to secure such
borrowing.
3.3 Compensation of the Manager. The Manager shall be
---------------------------
paid a fee by the Company for its services. Such fee shall be
set forth in a management agreement between Grand Court and the
Company.
3.4 Termination of the Manager. shall have
-------------------------- --------
the right to terminate Grand Court as the manager of the
Company's property for cause upon 30 days written notice to Grand
Court.
ARTICLE IV
CAPITAL CONTRIBUTIONS
---------------------
4.1 Capital Contributions. As of the date hereof, the
---------------------
Members have made, will be treated as having made, or will make,
as the case may be, the Capital Contributions set forth in
Schedule A attached hereto. The Members are not obligated to
make any additional contributions to the Company.
4.2 Return of Capital. Except as specifically
-----------------
provided in this Agreement, the Members shall not have the right
to withdraw from the Company all or any part of their Capital
Contributions, nor shall any Member have any right to demand and
receive property or cash of the Company in return of its Capital
Contribution.
ARTICLE V
CAPITAL ACCOUNTS
----------------
5.1 Capital Accounts. (a) A separate Capital Account
----------------
shall be established and maintained for each Member.
(b) Each Capital Account shall be maintained and
adjusted in accordance with the applicable requirements of the
Code and the applicable provisions of the Treasury Regulations
promulgated thereunder. Each Member's Capital Account shall be
increased by (i) the amount of cash and the fair market value of
property (net of liabilities that the Company is considered to
assume or take such property subject to) contributed by such
Member to the capital of the Company, and (ii) allocations to
such member of Profits (or items thereof) and Capital Transaction
Gain (or items thereof) pursuant to Article V. Each Member's
Capital Account shall be decreased by (i) the amount of cash and
the fair market value of property (net of liabilities that such
Member is considered to assume or take such property subject to)
distributed to such Member, and (ii) allocation to such Member of
Losses (or items thereof), Capital Transaction Loss (or items
thereof) and deductions pursuant to Article V.
(c) The provisions of this Agreement relating to the
maintenance of Capital Accounts are intended to comply with
Treasury Regulations Sections 1.704-1(b) and 1.704-2 and shall be
interpreted and applied in a manner consistent with such Treasury
Regulations. In the event that the Members shall determine that
it is prudent to modify the manner in which the Capital Accounts
are computed in order to comply with such Treasury Regulations,
the Members may make such modification, provided that such
modification is not likely to have a material effect on the
amounts distributable to any Member pursuant to this Agreement.
5.2 Negative Capital Accounts. At no time during the
-------------------------
term of the Company or upon the dissolution and liquidation
thereof shall a Member with a negative balance in his Capital
Account have any obligation to the Company or the other Member to
restore such negative balance, except as required by law.
ARTICLE VII
ALLOCATIONS
-----------
6.1 Determination of Gains and Losses. As of the
---------------------------------
close of business on the last day of each Fiscal Year, Profits,
Capital Transaction Gain, Losses and Capital Transaction Loss of
the Company shall be determined and shall be allocated as
provided in this Article VI.
6.2 Allocation of Profits. Profits shall be allocated
---------------------
to the Members 50% to and 50% to Grand Court.
----------
6.3 Allocation of Capital Transaction Gain. Except as
--------------------------------------
otherwise required by Section 6.8 hereof, Capital Transaction
Gain of the Partnership for each Fiscal Period shall be allocated
in the following priority:
(a) To until the cumulative amount
--------
of Capital Transaction Gain allocated to
is equal to the cumulative Losses
----------
allocated to pursuant to Section
----------
6.4 hereof.; and, thereafter
(b) To until the cumulative Capital
-------
Transaction Gain allocated to
--------
pursuant to this Section 6.3(b) is equal to
and, thereafter
$---------;
(c) To in an amount equal to the Priority
-------
Return, to the extent such amount has not
previously been distributed to him; and,
thereafter
(d) To each Member having a negative Capital
Account, pro rata in accordance with the
ratio that his negative Capital Account bears
to the sum of all negative Capital Accounts
until there shall have been allocated an
amount equal to the sum of all negative
Capital Accounts; and, thereafter
(e) 50% to Grand Court and 50% to
-------.
6.4 Allocation of Losses and Capital Transaction Loss.
-------------------------------------------------
Losses and Capital Transaction Loss shall be allocated 99% to
and 1% to Grand Court.
--------
6.5 Qualified Income Offset. Notwithstanding any
-----------------------
other provision of this Agreement except as required by the
Treasury Regulations, if any member has a deficit balance in his
Capital Account from an unexpected adjustment, allocation, or
distribution described in Treasury Regulations section 1.704-
1(b)(2)(ii)(d)(4), (5), or (6), there shall be specially
allocated to such Member such items of Company income and gain in
an amount and manner sufficient to eliminate as quickly as
possible the deficit balance, to the extent required by the
Treasury Regulations, without creating or increasing a deficit
balance in the Capital Account of any other Partner. This
Section 6.5 is intended to be a qualified income offset, as such
term is used in the Treasury Regulations.
6.6 Nonrecourse Deductions. Nonrecourse Deductions
----------------------
for any Fiscal Year shall be allocated 99% to and 1% to
-------
Grand Court.
6.7 Tax Allocations: Code Section 704(c). Income,
-------------------------------------
gain, loss and deduction with respect to any property
contributed, or deemed to be contributed to the capital of the
Company shall, solely for tax purposes, be allocated among the
Members in accordance with Code section 704(c) and the Treasury
Regulations thereunder. Any elections or other decisions
relating to such allocations shall be made by the Members in any
manner that reasonably reflects the purpose and intention of this
Operating Agreement. Allocations pursuant to this Section 6.7
are solely for purposes of Federal, state and local taxes and
shall not affect, or in any way be taken into account in
computing, any Member's Capital Account or share of Profits,
Losses, other items or distributions pursuant to any provision of
this Partnership Agreement.
6.8 Compliance with Code. Notwithstanding any
--------------------
contrary statement or provision herein, the profits and losses of
the Company for U.S. Federal income tax purposes will be
calculated and allocated as required under the Code and Treasury
Regulations thereunder.
INTENTIONALLY LEFT BLANK
ARTICLE VII
DISTRIBUTIONS
-------------
7.1 Distributions of Net Cash Flow. The Net Cash Flow
------------------------------
of the Company shall be distributed at such times as the Company
shall determine. The Net Cash Flow of the Company shall be
allocated among and distributed to the Members in the following
priority:
(a) To until the cumulative amount of
--------
Net Cash Flow allocated to him for the Fiscal
Year equals $ (the "Priority Return");
------
and, thereafter
(b) To the Members, 50% to Grand Court and
50% to
-------.
7.2 Distributions of Cash from Capital Items. Cash
----------------------------------------
from Capital Items occurring at times other than dissolution
shall be allocated among and distributed to the Members in the
following priority:
(a) To until the cumulative amount of
--------
Cash from Capital Items distributed to
equals $ ; and, thereafter
---------- --------
(b) To in an amount equal to unpaid
--------
Priority Return; and, thereafter
(c) To the Members, 50% to Grand Court and 50% to
-------.
7.3 Withholding. The Company shall comply with all
-----------
withholding requirements under Federal, state and local law. The
Company shall request, and the Members shall provide to the
Company, such forms or certificates as are necessary to establish
an exemption from withholding with respect to the Members, and
any representations and forms as shall reasonably be requested by
the Company to assist it in determining the extent of and in
fulfilling, its withholding obligations. The Company shall file
required forms with applicable jurisdictions and, unless an
exemption from withholding is properly established by the
Members, shall remit amounts withheld with respect to the Member
to applicable jurisdictions. To the extent the Company is
required to withhold and pay over any amounts to any authority
with respect to any distributions or allocations hereunder, the
amount withheld shall be deemed to be a distribution in the
amount of such withholding. In the event of any claimed over
withholding, the distributee shall be limited to an action
against the applicable jurisdiction. If the amount withheld was
not withheld from actual distributions, the Company may reduce
subsequent distributions by the amount of such withholding.
ARTICLE VIII
INDEMNIFICATION
---------------
8.1 Indemnification. (a) The Company shall, to the
---------------
fullest extent permitted by the Act, indemnify and hold harmless
the Members from and against any and all liabilities, losses,
damages and expenses arising out of or relating to the business
of the Company (including without limitation (i) legal fees and
expenses, (provided, that if a Member retains more than one legal
counsel in any jurisdiction in connection with any claim, the
indemnification provided by this Section 8.1(a) shall be limited
to an amount equal to the aggregate of such legal fees and
expenses divided by the number of such legal counsel), and (ii)
any amounts paid in respect of any resulting judgments, finds or
settlements) suffered or incurred in any actual or threatened
claim, action, or proceeding as a result or by reason of (i) the
fact that it is or was a Member, or (ii) any alleged action or
inaction as a Member; provided, that the forgoing indemnity shall
not apply to the extent that any action or inaction by a Member
is determined by a final judgment to have constituted gross
negligence, willful misfeasance, or bad faith, it being
understood that included, without limitation, in the concept of
"willful misfeasance or bad faith" is any action or inaction by a
Member which is not authorized by or is inconsistent with the
authorization of such Member pursuant to the Articles, By-laws
and other agreements among the parties hereto.
(b) A Member may consult with legal counsel or
accountants for the Company selected by the Member and any action
or omission suffered or taken in good faith or reliance and
accordance with the opinion or advice of any such counsel or
accountants (provided that such counsel has been selected with
reasonable care) shall be full protection and justification with
respect to the action or omission so suffered or taken.
ARTICLE IX
BOOKS, RECORDS AND BANK ACCOUNTS
--------------------------------
9.1 Books and Records. Grand Court shall cause the
-----------------
Company to keep proper and complete records and books of account
of the Company's business, including all such transactions and
other matters as are usually entered into records and books of
account maintained by Persons engaged in businesses of like
character or as are required by law and including, but not
limited to, the following:
(a) if there shall be more than one Member, a
current list of the full name and last known business or
residence address of each Member set forth in alphabetical order,
together with the Capital Contributions and the share in Profits
and Losses of each Member;
(b) a copy of the certificate of formation of the
Company and all certificates of amendment, together with executed
copies of any powers of attorney pursuant to which any
certificate has been executed;
(c) copies of the Company's income tax or
information returns and reports, if any, for the six most recent
taxable years;
(d) a copy of this Agreement, and all amendments
thereto;
(e) financial statements of the Company for the
six most recent Fiscal Years; and
(f) the Company's books and records as they
relate to the internal affairs of the Company for the current and
past three Fiscal Years.
9.2 Inspection and Copying. All records and books of
----------------------
account maintained in accordance with Section 9.1 shall be open
to inspection and copying upon at least two (2) days' prior
written notice by a Member or its authorized representatives at
any reasonable time during business hours.
9.3 Accounting Basis and Fiscal Year. The Company's
--------------------------------
books and records (a) shall be kept on an accrual basis in
accordance with the accounting methods followed by the Company
for U.S. income tax purposes, (b) shall reflect all Company
transactions, (c) shall be appropriate and adequate for the
Company's business and for the carrying out of all provisions of
this Agreement, and (d) shall be closed and balanced at the end
of each Fiscal Year.
9.4 Tax Elections.
-------------
(a) The Company, at the request of a Member or a
transferee Member, shall elect where applicable, pursuant to
Section 754 of the Code, to adjust the bases of the Company
property. The Member will furnish to the Company all information
necessary to give effect to such election.
ARTICLE X
TRANSFERS
---------
10.1 Transfers. A Member may not sell, assign,
---------
transfer, exchange, charge, pledge, give, hypothecate, or
otherwise convey or encumber (any such sale, assignment,
transfer, exchange, charge, pledge, gift, hypothecation,
conveyance or encumbrance being hereinafter referred to as a
"Transfer"), directly or indirectly, voluntarily or
involuntarily, its interest in the Company without the unanimous
consent of the Members which consent may be withheld within the
sole discretion of the Members. Any Transfer of any Member's
interest without such consent shall be null and void and of no
force whatsoever.
ARTICLE XI
DISSOLUTION AND LIQUIDATION
---------------------------
11.1 Events of Dissolution. The Company may be
---------------------
dissolved, liquidated, and terminated pursuant to the provisions
of this Article XI and in accordance with the Act. The Company
shall be terminated and dissolved upon the earlier to occur of
the following events:
(a) the withdrawal, resignation, bankruptcy, or
dissolution of any Member, unless the remaining Members, if any,
unanimously elect to continue the Company within 90 days of such
event;
(b) The sale, exchange, or other disposition by
the Company of all or substantially all of the Company's
property;
(c) The expiration of the term of the Company;
(d) The election to do so by the Member; or
(e) The occurrence of any other event that would
dissolve and terminate the Company under the Act.
11.2 Liquidation. In all cases of dissolution of the
-----------
Company, the business of the Company shall be continued to the
extent necessary to allow an orderly winding up of its affairs,
including the liquidation and termination of the Company pursuant
to the provisions of Section 11.1 and this Section 11.2, as
promptly as practicable thereafter, and each of the following
shall be accomplished:
(a) The Liquidating Member shall cause to be
prepared a statement setting forth the assets and liabilities of
the Company as of the date of dissolution, a copy of which shall
be furnished to the other Members, if any.
(b) The property of the Company shall be
liquidated by the Liquidating Member as promptly as possible, but
in an orderly, businesslike and commercially reasonable manner.
The Liquidating Member may, in the exercise of its business
judgment and if commercially reasonable, determine (i) to sell
all or any portion of the property of the Company to another
Member, if any, after using best efforts to sell such property to
a person unrelated to any Member, provided that the purchase
price is not less than the fair market value of such property, or
to any other Person, or (ii) after using best efforts to sell
such property to a person unrelated to any Member, not to sell
all or any portion of the property of the Company, in which event
such property and assets shall be distributed in kind pursuant to
Section 11.3.
(c) Any Capital Transaction Gain or Capital
Transaction Loss realized by the Company upon the sale of its
property shall be recognized and allocated to the Members in the
manner set forth in Article V of this Agreement. To the extent
that an asset is to be distributed in kind, such asset shall be
deemed to have been sold at its fair market value on the date of
distribution, the profits or loss deemed recognized upon such
deemed sale shall be allocated in accordance with Article V, and
the amount of the distribution shall be considered to be such
fair market value of the asset.
11.3 Distributions Upon Dissolution. Upon dissolution
------------------------------
of the Company and the liquidation of its assets (the
"Liquidation"), the Liquidating Member shall cause the remaining
assets, including proceeds of sales or other dispositions in
liquidation of assets of the Company ("Liquidation Proceeds"), to
be distributed in accordance with the following priorities:
(a) First, to the payment of the debts and
obligations of the Company (including advances and loans by a
Member), including sales commissions, taxes, and other expenses
incident to any sale of the assets of the Company;
(b) Second, establishment of such reserves as the
Liquidating Member may deem reasonably necessary for any
contingent or unforeseen liabilities or obligations of the
Company. Such reserves may be paid over by the Liquidating
Member to a bank or other financial institution, to be held in
escrow for the purpose of paying any such contingent or
unforeseen liabilities or obligations and, at the expiration of
such period as the Liquidating deems advisable, any remaining
balance shall be distributed as provided in subsection (c) of
this Section 11.3; and
(c) The balance, if any, to the Members pro rata
in accordance with their relative positive Capital Accounts
(after giving effect to all contributions, distributions and
allocations for all periods).
INTENTIONALLY LEFT BLANK
ARTICLE XII
MISCELLANEOUS
-------------
12.1 Notices. Any notice, demand, request or report
-------
required or permitted to be given or made to the Members under
this Agreement shall be in writing and shall be deemed given or
made when delivered in person or when sent by first class mail or
by other means of written communication to the Members at the
address set forth opposite their names on Schedule A, or at such
other address as the Members may from time to time designate to
the others. Facsimile notice shall be deemed to have been
received twenty-four (24) hours after dispatch, but nevertheless
is shall be confirmed by registered airmail within ten (10) days
of dispatch.
A Member may designate another address (and/or change
its address) for Notices hereunder by a Notice given pursuant to
this Section 12.1. Unless otherwise provided herein, a Notice
sent in compliance with the provisions of this Section 12.1 shall
be deemed delivered when actually received by the party to whom
sent. Rejection or other refusal to accept or the inability to
deliver because of a changed address or addressee of which no
Notice was given as provided in this Section shall be deemed
receipt of the Notice sent.
12.2 Amendments. Amendments may be made to this
----------
Agreement only with the written consent of all Members.
12.3 No Waiver. The failure of any Member to insist
---------
upon strict performance of a covenant hereunder or of any
obligation hereunder, irrespective of the length of time for
which such failure continues, shall not be a waiver of such
Member's right to demand strict compliance in the future. No
consent or waiver, express or implied, to or of any breach or
default in the performance of any obligation hereunder shall
constitute a consent or waiver to or of any other breach or
default in the performance of the same or any other obligation
hereunder.
12.4 Entire Agreement. This Agreement (including the
----------------
Schedules attached hereto and all amendments and supplements)
contains the full and complete understanding of the parties
hereto with respect to the subject matter hereof, and supersedes
any and all prior and contemporaneous agreements, understandings
and negotiations between and among the parties concerning the
subject matter hereof.
12.5 Captions. The captions in this Agreement are
--------
inserted only for convenience, form no part of this Agreement and
shall not affect its interpretation.
12.6 Counterparts. This Agreement may be executed in a
------------
number of counterparts, any one of which need not contain the
signature of more than one party, and all of which together shall
for all purposes constitute one and the same Agreement.
12.7 Severability. In the event that any of the
------------
provisions, or any portion or application thereof, of this
Agreement is held to be unenforceable or invalid by any court of
competent jurisdiction, the Members shall devise an equitable
adjustment in the provisions of this Agreement with a view toward
effecting the purpose and intent of this Agreement, and the
validity and enforceability of the remaining provisions, or
portions or applications thereof, shall not be affected thereby.
12.8 Applicable Law. The validity of this Agreement
--------------
and all rights, duties and obligations arising herefrom shall be
governed by, and interpreted, construed and enforced in
accordance with, the laws of the State of Texas.
12.9 Forum Selection. The locale of any judicial
---------------
proceedings hereunder shall be under State court in the State of
New Jersey or in the courts located in the State of New Jersey
and not in any other Federal court in the United States or any
court in any other country.
12.10 Binding Effect. Subject to the limitations
--------------
on transferability contained herein, each and all of the
covenants, terms, provisions, and agreements contained herein
shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, assigns, successors, and legal
representatives.
12.11 Identification. Whenever the singular is
--------------
used in this Agreement and when required by the context, the same
shall include the plural, and the neuter gender shall include the
feminine and masculine genders.
[INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first above written.
-----------------------------
GRAND COURT LIFESTYLES, INC.
BY:
-------------------------
Name:
-----------------
Title:
-----------------
SCHEDULE A
----------
MEMBER'S CAPITAL CONTRIBUTIONS
------------------------------
Name and Address Capital
Of Member Contribution
---------------- ------------
Grand Court Lifestyles, Inc. $
------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
$
------------------ -------------
EXHIBIT A
FORM OF
-------
SALE AND ASSIGNMENT
-------------------
Grand Court Lifestyles, Inc., (hereinafter called "Seller")
hereby sells, assigns, transfers and sets over to
---------
("Buyer") fifty percent (50%) of Seller's right, title and
interest in (the "LLC") as more particularly
-------------------
set forth in the Amended and Restated Regulations and Operating
Agreement of the LLC dated as of 1999 (the "LLC
-------------,
Interest"). The total purchase price for the LLC Interest shall
be Dollars ($ .00).
------------------ ------------- ------------
is the owner of the adult living property located in
--------.
Seller hereby declares its intention that Buyer succeeds to
fifty percent (50%) of Seller's interest in the LLC and that
Buyer be admitted to the LLC as a member. Buyer declares his
intention to succeed to fifty percent of Seller's interest in the
LLC and be admitted to the LLC as a member and agrees to be bound
by all of the terms and provisions of the LLC Agreement, as
amended.
IN WITNESS WHEREOF, Seller and Buyer, intending to be
legally bound hereby, have each duly executed this Sale and
Assignment effective as of 1999.
-----------,
Seller:
GRAND COURT LIFESTYLES, INC.
By:
----------------------------
Buyer:
------------------------------