OPERATING AGREEMENT
OF
VILLAGE AT OAKWOOD L.L.C.
(February 17,2000)
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TABLE OF CONTENTS
Page
ARTICLE I - Organizational Matters .......................... 1
1.1 Formation ........................................... 1
1.2 Name ................................................ 1
1.3 Principal Office .................................... 1
1.4 Resident Agent ...................................... 1
1.5 Term ................................................ 1
ARTICLE 2 - Definitions ..................................... 1
ARTICLE 3 - Purpose of the Company .......................... 4
ARTICLE 4 - Capital Contributions ........................... 4
4.1 Units ............................................... 4
4.2 Capital Contributions ............................... 4
4.3 Capital Accounts .................................... 4
4.3.1 Calculation ................................... 4
4.3.2 In-Kind Contributions ......................... 4
4.3.3 Assignee's Capital Account .................... 4
4.4 Interest ............................................ 4
4.5 No Withdrawal ....................................... 4
4.6 Loans ............................................... 4
4.7 Additional Capital Contributions .................... 4
ARTICLE 5 - Distributions and Allocations ................... 5
5.1 Distribution of Cash Available for Distribution ..... 5
5.2 Allocation of Income and Loss ....................... 5
5.2.1 Pro Rata .................................... 5
5.2.2 Contributed Property ........................ 5
5.2.3 Section 754 Election ........................ 5
5.2.4 Mid-Year Transfers .......................... 5
5.2.5 Related Party Transactions .................. 5
5.2.6 Tax Credits ................................. 6
ARTICLE 6 - Management by Managers .......................... 6
6.1 Managers ............................................ 6
6.2 Initial Number of Managers; Initial Manager ......... 6
6.3 Powers and Authority of Manager ..................... 6
6.4 Restrictions on Manager ............................. 6
6.5 Number, Term and Qualifications; Removal ............ 7
6.6 Manner of Acting .................................... 7
6.7 Manager's Permissible Business Activities ........... 7
6.8 Company Funds ....................................... 7
6.9 Limitation on Liability of Manager .................. 7
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Page
6.10 Manager's Compensation ................................. 7
ARTICLE 7 - Rights and Obligations of the Members ........... 7
7.1 Limitation of Liability ............................. 7
7.2 Rights of Member Relating to the Company ............ 7
7.3 Restrictions on Powers .............................. 8
7.4 Indemnification ..................................... 8
7.4.1 Company Indemnity ............................. 8
7.4.2 Advancement of Expenses ....................... 8
7.4.3 Non-Exclusivity ............................... 9
7.4.4 Insurance ..................................... 9
7.5 Member's Permissible Business Activities ............ 9
ARTICLE 8 - Books, Records, Accounting and Reports .......... 9
8.1 Books and Records ................................... 9
8.2 Accounting .......................................... 9
8.3 Fiscal Year ......................................... 9
ARTICLE 9 - Tax Matters .................................... 10
9.1 Taxable Year ....................................... 10
9.2 Tax Controversies .................................. 10
9.3 Financial Statements and Tax Return Information .... 10
9.4 Tax Returns ........................................ 10
9.5 Taxation as a Partnership .......................... 10
9.6 Tax Elections ...................................... 10
ARTICLE 10 - Transfer of Units ............................. 10
10.1 Transfer Defined ................................... 10
10.2 Transfer Prohibited ................................ 10
10.3 Requirements for Transfers ......................... 11
10.3.1 Conditions Precedent to Transfers to
Non-Members ................................ 11
10.3.2 Legend ..................................... 11
10.3.3 Minors; Incompetents ....................... 11
10.3.4 Assignee's Acceptance and Agreement ........ 11
10.3.5 Deemed Agreement ........................... 11
10.3.6 Absolute Restrictions ...................... 11
10.4 Permitted Sale ..................................... 11
10.4.1 Notice ...................................... 12
10.4.2 Option to Purchase .......................... 12
10.4.3 Right to Sell ............................... 12
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Page
10.5 Purchase Price .................................... 12
10.6 Manner of Payment ................................. 13
10.7 Exception for Transfer to Immediate Family ........ 13
10.8 Exception for Transfer to Revocable Trust ......... 13
10.9 Certificates of Agreed Value ...................... 13
10.10 Closing Procedures ................................ 13
10.11 Buy-Sell Offer .................................... 14
10.11.1 Notice ................................. 14
10.11.2 Option of Remaining Members ............ 14
10.12 Death of a Member; Option to Purchase ............. 14
10.13 Priority As to Procedures ......................... 14
ARTICLE 11 - Admission of Substitute and Additional Members. 15
11.1 Admission of Substitute Members ................... 15
11.2 Issuance of Additional Units ...................... 15
ARTICLE 12 - Dissolution and Liquidation ................... 16
12.1 Dissolution and Liquidation ....................... 16
12.2 Method of Winding Up .............................. 16
12.3 Filing Articles of Dissolution .................... 16
12.4 Return of Capital ................................. 16
ARTICLE 13 - Amendment of Agreement; Meetings; Record Date . 16
13.1 Amendments ........................................ 16
13.2 Limitations on Amendments ......................... 16
13.3 Meetings .......................................... 16
13.4 Waiver of Notice; Consent to Meeting; Approval
of Minutes ........................................ 16
13.5 Quorum ............................................ 17
13.6 Action Without a Meeting .......................... 17
ARTICLE 14 - Certificates .................................. 17
14.1 Issuance of Certificates .......................... 17
14.2 Legend on Certificates ............................ 17
14.3 Lost, Stolen or Destroyed Certificates ............ 17
ARTICLE 15 - General Provisions ............................ 18
15.1 Notices ........................................... 18
15.2 Further Action .................................... 18
15.3 Binding Effect .................................... 18
15.4 Integration ....................................... 18
15.5 Waiver ............................................ 18
15.6 Counterparts ...................................... 18
15.7 Applicable Law; Construction ...................... 18
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Page
15.8 Invalidity of Provisions .......................... 19
15.9 Conveyances ....................................... 19
15.10 Specific Performance .............................. 19
15.11 Power of Attorney ................................. 19
15.11.1 Managers as Attorneys-in-Fact .......... 19
15.11.2 Nature of Special Power ................ 19
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OPERATING AGREEMENT
OF
VILLAGE AT OAKWOOD L.L.C.
This Operating Agreement (this "Agreement") is entered into as of
February 17, 2000, by and among the Members who execute this Agreement on the
signature pages hereto (the "Members") of Village at Oakwood L.L.C., an
Oklahoma limited liability company (the "Company"). In consideration of the
mutual promises contained herein, the Members agree as follows:
ARTICLE 1
Organizational Matters
1.1 Formation. The Company shall be formed as a limited
liability company pursuant to the provisions of the Act.
1.2 Name. The name of the Company shall be "Village at
Oakwood L.L.C."
1.3 Principal Office. The principal office (the "Principal
Office") of the Company in the State of Oklahoma shall be located at ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Company may change the location
of the Principal Office and may also maintain offices at such other place or
places as determined by the Majority Vote of the Members.
1.4 Resident Agent. The name and address of the resident agent
of the Company in the State of Oklahoma are:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
1.5 Term. The term of the Company shall commence upon the
filing of the Company's Articles of Organization with the Oklahoma Secretary
of State, and shall continue until terminated as herein provided or by
operation of law.
ARTICLE 2
Definitions
For purposes of this Agreement, the following terms shall have the
following meanings:
"Act" means the Oklahoma Limited Liability Company Act, codified
at 18 Okla. Stat. Sec 2000, et seq., as it may be amended from time to time,
and any successor to such act.
"Affiliate" means any Person that directly or indirectly controls,
is controlled by, or is under common control with, such Person. As used
in this definition of "Affiliate," the term 4 & control" means either:
(a) the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person, whether
through ownership of voting
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securities, by contract or otherwise; or (b) a direct or indirect equity
interest of ten percent (10%) or more in the entity.
"Agreement" means this Operating Agreement, as it may be amended,
supplemented and/or restated from time to time.
"Articles of Organization" means the Articles of Organization, as
amended, supplemented and/or restated from time to time, filed by the Company
with the Oklahoma Secretary of State under the Act.
"Assignee" means a Person to whom one or more Units have been
transferred, by transfer, assignment or otherwise, in a manner permitted
under this Agreement, and who has agreed to be bound by the terms of this
Agreement but who has not become a Substitute Member.
"Business Day" means Monday through Friday of each week, except
legal holidays recognized as such by either the United States Govenunent or
the State of Oklahoma.
"Capital Account" means each capital account maintained for a Member
pursuant to Section 4.3.
"Capital Contributions" means the sum of the cash and the value of
property contributed or services rendered, or a promissory note or other
binding obligation to contribute cash or property or to perform services
contributed to the Company by all Members, or any one Member, as the case may
be (or the predecessor holders of any Units of any such Members).
"Capital Gain" means the Company's allocable share of gain from the
disposition by the Company of a capital asset as defined in the Code
(including any portion of such gain treated as ordinary income).
"Cash Available for Distribution" means, with respect to any period,
the excess of all cash receipts (except for Capital Contributions) over
(a) all cash disbursements and (b) the amount of the reserve fund for
working capital, replacement, maintenance and repair of Company Property
and other contingencies or other reserves as determined by the unanimous
vote of the Members.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Company" means the limited liability company formed by the filing
of the Company's Articles of Organization with the Oklahoma Secretary of
State.
"Company Property" means all property owned, leased or otherwise
acquired by the Company from time to time.
"Income" or "Loss" mean an amount equal to the Company's taxable
income or loss (including capital loss), as the case may be, for each taxable
year, determined in accordance with Code Section 703(a) [for this purpose,
all items of income, gain, loss, or deduction required to be stated separately
pursuant to Code Section 703(a)(1) shall be included in taxable income
or loss], with the following adjustments:
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(a) any income of the Company that is exempt from federal
income tax and not otherwise taken into account in computing Income or Loss
shall be added to such Income or Loss;
(b) any expenditures of the Company described in Code
Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures
pursuant to Reg. Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into
account in computing Income or Loss, shall be subtracted from such Income or
Loss; and
(c) upon the distribution of property by the Company to.
a Member, gain or loss attributable to the difference between the fair market
value of the property and its basis shall be treated as recognized.
"Majority Vote of the Members" means the affirmative vote of the
holders of a majority of the Outstanding Units held by the Members, which may
be evidenced by the written consent of such Members.
"Manager" means the Person or Persons appointed as manager or
managers of the Company pursuant to Article 6.
"Mandatory Provisions of the Act" means those provisions of the Act
which may not be waived by the Members acting unanimously or otherwise.
"Member" means each Person executing this Agreement as a Member of
the Company.
"Opinion of Counsel" means a written opinion of counsel (who shall
be regular counsel to the Company).
"Outstanding" means the number of Units issued by the Company as
shown on the Company's books and records, minus any Units held by the Company.
"Person" means a natural person, partnership, domestic or foreign
limited partnership, domestic or foreign limited liability company, trust,
estate, association or corporation.
"Prime Rate" means the lowest prime rate as published in the "Money
Rates" section of The Wall Street Journal, from time to time.
"Record Holder" means the Person in whose name such Unit is
registered on the books and records of the Company as of the close of
business on a particular Business Day.
"Reg." means Treasury Regulations.
"Substitute Member" means a transferee of a Unit who is admitted as
a Member to the Company pursuant to Section 11.1 in place of and with
all the rights of a Member.
"Tax Item" means each item of income, gain, loss, deduction or
credit of the Company for federal tax purposes, as separately stated and
calculated pursuant to the Code.
"Tax Matters Partner" means the Person designated pursuant to
Section 9.2.
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"Unit" means a Unit representing an interest in the Company.
ARTICLE 3
Purpose of the Company
The purpose of the Company shall be as stated in the Articles of
Organization, as amended, supplemented and/or restated from time to time.
ARTICLE 4
Capital Contributions
4.1 Units. There shall be an aggregate of 1,000 Units in the
Company.
4.2 Capital Contributions. Upon execution of this Agreement,
each Member shall contribute cash or other property to the Company as capital
having a value equal to $ 1.00 in exchange for each Unit to be owned by such
Member as reflected on Exhibit A attached hereto.
4.3 Capital Accounts.
4.3.1 Calculation. The Company shall maintain for each
Member a separate Capital Account. The term "Capital Account" means as to
any Member and as to any Units held by such Member the amount of the initial
Capital Contribution attributable to the Units held by such Member, which
amount shall be: (a) increased by subsequent Capital Contributions by such
Member and Capital Gain and Income allocated to such Member pursuant to
Section 5.2; and (b) decreased by distributions to such Member pursuant to
Section 5.1 and Losses allocated to such Member pursuant to Section 5.2.
4.3.2 In-Kind Contributions. If in-kind contributions
or contributions in the form of property or services are made, the Capital
Account of the Member shall be increased by an amount equal to the fair
market value of the property or services contributed by such Member.
4.3.3 Assignee's Capital Account. An Assignee of a
Unit will succeed to the Capital Account relating to the Unit transferred.
4.4 Interest. No interest shall be paid by the Company on
Capital Contributions, on balances in a Member's Capital Account or on any
other funds distributed or distributable under this Agreement.
4.5 No Withdrawal. Except as otherwise required under any
Mandatory Provisions of the Act, without the written consent of all other
Members of the Company, no Member shall have: (a) any night to resign
voluntarily or otherwise to withdraw from the Company; or (b) any right to
the withdrawal or reduction of any part of his Capital Contribution.
4.6 Loans. Loans by a Member to the Company shall not be
considered Capital Contributions. The Company shall not make any loans to
any Member or any Affiliate of any Member.
4.7 Additional Capital Contributions. If the Members determine
unanimously that additional Capital Contributions by the Members are required
to pay current operating expenses, current indebtedness or current installments
of long-term indebtedness of the Company when due and in adequate time
to obtain all discounts available by reason of prompt payment,
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each Member shall contribute in cash to the capital of the Company an
amount equal to such Member's pro rata share of the aggregate additional
Capital Contribution called for (according to the number of Units held
by each, with all Outstanding Units being treated alike), in the time
and manner and for the number of additional Units as shall be determined
unanimously. If a Member shall fail to make the required additional Capital
Contribution, the other Members shall have the right, but not the obligation,
to make the contribution which would otherwise have been made by the
non-contributing Member. The amount of any additional Capital Contribution
shall be added to the Capital Account of the contributing Member or Members
and the Outstanding Units held by Member shall be adjusted to be in the
proportion that such Member's Capital Account balance bears to the total
Capital Account balances of all Members.
ARTICLE 5
Distributions and Allocations
5.1 Distribution of Cash Available for Distribution.
Distributions of all Cash Available for Distribution shall be made at such
times as determined by the unanimous vote of the Members. Any distribution
of property shall be treated as a distribution of cash equal in amount to the
fair market value of such property. Distributions shall be made to all
Members and Assignees pro rata in accordance with the number of Units held by
each.
5.2 Allocation of Income and Loss.
5.2.1 Pro Rata. All Tax Items shall be allocated to
all Members and Assignees pro rata in accordance with the number of Units held
by each.
5.2.2 Contributed Property. Under Code Section 704(c)
and the Reg. promulgated thereunder, items of Capital Gain, Income and Loss
with respect to property contributed to the Company by a Member shall be
shared among Members so as to take account of the variation between the basis
of the property to the Company and its fair market value at the time of
contribution. The Members shall have the power to make such elections, adopt
such con-ventions, and allocate Capital Gain, Income and Loss as each of them
deems appropriate to comply with Code Section 704(c) and the Reg. promulgated
thereunder and to preserve, to the extent possible, uniformity of the Units.
Any items allocated under this Section 5.2.2 shall not be debited or credited
to Capital Accounts to the extent that item is already taken into account
(upon formation or otherwise) in determining a Member's Capital Account.
5.2.3 Section 754 Election. Upon a transfer of a Unit
or distribution of Company Property to a Member, the Company may, in the
discretion of the Manager, file an election pursuant to Code Section 754 and
the Reg. promulgated thereunder, to cause the basis of Company Property to
be adjusted for federal income tax purposes as provided by Code Sections 734
and 743; provided that the transferee Member shall reimburse the Company for
all accounting expenses incurred by the Company as a result of such election.
5.2.4 Mid-Year Transfers. Upon the transfer of a Unit,
Income, Capital Gain and Loss attributable to the transferred Unit shall, for
federal income tax purposes, be allocated to the owners of such Unit on the
basis of the Income or Loss for each month that such Person was the owner of
such Units, determined on an interim closing of the books method. The
Members may revise, alter or otherwise modify the method of allocation
as they determine necessary to comply with Code Section 706 and the Reg.
promulgated thereunder.
5.2.5 Related Party Transactions. If, and to the extent
that, any Member is deemed to recognize Income as a result of any transaction
between the Member and the
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Company pursuant to Code Sections 482, 483, 1272-1274, or 7872, or any
similar provision now or hereafter in effect, any corresponding resulting
Loss or deduction of the Company shall be allocated to the Member who
was charged with that Income.
5.2.6 Tax Credits. All tax credits for federal or
state income tax purposes shall be allocated in the same manner as Income.
ARTICLE 6
Management by Managers
6.1 Managers. Management of the Company shall be vested in one
or more Managers, as are elected by the Members from time to time pursuant to
this Agreement. If no Managers are elected, or all Managers have been
removed from office, management of the Company shall be vested in the
Members, and in such case, all decisions affecting the Company shall be
determined by the unanimous vote of the Members.
6.2 Initial Number of Managers, Initial Manager. The initial
number of Managers shall be one (1) and the initial Manager shall be ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇. If ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. is unable to serve as Manager
at any time hereafter, he shall be succeeded by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
6.3 Powers and Authority of Manager. A Manager may exercise all
the powers of the Company whether derived from law, the Articles of
Organization or this Agreement, except such powers as are by statute, by the
Articles of Organization or by this Agreement vested solely in the Members.
Subject to Section 6.4, the Members hereby confer on the Manager such powers
and authority as may be required for the Manager to conduct the daily affairs
and business of the Company. All other decisions shall be made only with
the unanimous vote of the Members.
6.4 Restrictions on Manager. Notwithstanding any other provision
hereof, no Manager shall except with the unanimous vote of the Members:
(a) borrow money in excess of $10,000.00;
(b) sell any Company Property (or assets, in related
transactions) having a fair market value over $10,000.00;
(c) enter into any contract which is not terminable at
will involving an anticipated total expenditure of over $10,000.00;
(d) do any act which would make it impossible to carry
on the ordinary business of the Company;
(e) compromise any claim over $10,000.00;
(f) admit a Person as a Member, except as provided in
this Agreement; or
(g) knowingly perform any act that would subject a
Member to personal liability.
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6.5 Number. Term and Qualifications: Removal. The Company may
have one (1) or more Managers. Election of a Manager or increases or decreases
in the number of Managers may be made as the Members shall from time to
time determine by the unanimous vote of the Members. Each Manager shall
hold office until his successor shall have been elected. A Manager may
be removed, with or without cause, upon the unanimous vote of the Members.
Managers need not be Members of the Company.
6.6 Manner of Action. The unanimous agreement of all Managers,
if more than one, shall be necessary for all decisions affecting the Company.
6.7 Manager's Permissible Business Activities. Each Manager and
such Manager's Affiliates may have business interests and engage in business
activities in addition to those relating to the Company, including, without
limitation, business interests and activities in direct competition with
the Company for such Manager's or such Manager's Affiliates' own account
or for the account of others, and no provision of this Agreement shall
be deemed to prohibit such Manager or such Manager's Affiliates from
conducting such businesses and activities. Neither the Company, the Members
nor any other Manager shall have any rights by virtue of this Agreement or
the relationship contemplated herein in any business ventures of such
Manager or such Manager's Affiliates.
6.8 Company Funds. The funds of the Company shall be deposited
in an account or accounts designated by the Manager and shall not be
commingled with any other funds.
6.9 Limitation on Liability of Manager. No Manager of the
Company shall be liable to the Company or its Members for monetary damages
for breach of fiduciary duty as a Manager; provided that nothing contained
herein shall eliminate or limit the liability of a Manager: (a) for any
breach of the Manager's duty of loyalty to the Company or its Members;
(b) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of the law; and (c) for any transaction
from which the Manager derived an improper personal benefit.
6.10 Manager's Compensation. The Manager shall receive such
compensation as may be determined by the unanimous vote of the Members.
ARTICLE 7
Rights and Obligations of the Members
7.1 Limitation of Liability. Notwithstanding anything herein
to the contrary, except as otherwise expressly provided herein or in the Act,
a Member shall not be personally liable for any debts, liabilities or
obligations of the Company, whether to the Company, to any of the other
Members, or to creditors of the Company, beyond the Capital Account of
the Member, together with the Member's share of the assets and undistributed
profits of the Company.
7.2 Rights of Member Relating to the Company. In addition to
other rights provided by this Agreement or by applicable law, a Member shall
have the right, upon demand and at such Member's own expense, to:
(a) obtain any and all information regarding the status
of the business and financial condition of the Company;
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(b) to obtain a copy of the Company's federal, state
and local income tax returns for each year promptly after becoming available;
(c) have fumished to the Member a current list of the
name and last known business, residence or mailing address of each Member;
(d) obtain information regarding the Capital Contributions
made by each Member;
(e) have furnished to the Member a copy of this
Agreement and the Articles of Organization and all amendments hereto and
thereto, together with copies of any powers of attorney pursuant to which this
Agreement, the Articles of Organization, and all amendments hereto and thereto
have been executed; and
(f) inspect and copy any of the Company's books and
records and obtain such other information regarding the affairs of the Company.
7.3 Restrictions on Powers. Except as otherwise provided herein
or by the Mandatory Provisions of the Act, a Member shall not have the
authority or power to act on behalf of, or to bind, the Company, or any other
Member, and a Member shall not have the right or power to take any action
which would change the Company to a general partnership, change the
limited liability of a Member, or affect the status of the Company for
federal income tax purposes.
7.4 Indemnification.
7.4.1 Company Indemnity. To the maximum extent
permitted by law, the Company shall indemnify and hold harmless each Manager,
such Manager's Affiliates, and the employees and agents of the Company (each,
an "Indemnitee") from and against any and all losses, claims, demands, costs,
damages, liabilities, joint and several, expenses of any nature (including
attorneys' fees and disbursements), judgments, fines, settlements, penalties
and other expenses actually and reasonably incurred by the Indemnitee in
connection with any and all claims, demands, actions, suits, or proceedings,
civil, criminal, administrative or investigative, in which the Indemnitee
may be involved, or threatened to be involved, as a party or other-wise, by
reason of the fact that the Indemnitee is or was a Manager of the Company or
is or was an employee or agent of the Company, including Affiliates of the
foregoing, arising out of or incidental to the business of the Company,
provided: (a) the Indemnitee's conduct did not constitute willful misconduct
or recklessness; (b) the action is not based on breach of this Agreement;
(c) the Indemnitee acted in good faith and in a manner he reasonably believed
to be in, or not opposed to, the best interests of the Company and within the
scope of such Indemnitee's authority; and (d) with respect to a criminal
action or proceeding, the Indemnitee had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit, or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contenders,
or its equivalent, shall not, in and of itself, create a presumption or
otherwise constitute evidence that the Indemnitee acted in a manner contrary
to that specified above.
7.4.2 Advancement of Expenses. Expenses incurred by an
Indemnitee in defending any claim, demand, action, suit or proceeding subject
to this Section 7.4 may, from time to time, be advanced by the Company prior
to the final disposition of such claim, demand, action, suit or proceeding
upon receipt by the Company of an undertaking by or on behalf of the
Indemnitee to repay such amount if it shall ultimately be determined that
such person is not entitled to be indemnified as authorized in this Section
7.4.
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7.4.3 Non-Exclusivity. The indemnification provided by
this Section 7.4 shall be in addition to any other rights to which the
Indemnitee may be entitled under any agreement, vote of the Members, as a
matter of law or equity, or otherwise, and shall inure to the benefit of the
successors, assignees, heirs, personal representatives and administrators of
the Indemnitee.
7.4.4 Insurance. The Company may purchase and maintain
insurance, at the Company's expense, on behalf of any Indemnitees against any
liability that may be asserted against or expense that may be incurred by an
Indemnitee in connection with the activities of the Company regardless of
whether the Company would have the power to indemnify such Indemnitee against
such liability under the provisions of this Agreement.
7.5 Member's Permissible Business Activities. Each Member and
such Member's Affiliates may have business interests and engage in business
activities in addition to those relating to the Company, including, without
limitation, business interests and activities in direct competition with the
Company for such Member's or such Member's Affiliates' own account or for the
account of others, and no provision of this Agreement shall be deemed
to prohibit such Member or such Member's Affiliates from conducting such
businesses and activities. Neither the Company, the Members nor any other
Member shall have any rights by virtue of this Agreement or the relationship
contemplated herein in any business ventures of such Member or such Member's
Affiliates.
ARTICLE 8
Books, Records, Accounting and Reports
8.1 Books. and Records. Appropriate books and records with
respect to the Company's business, including, without limitation, all books
and records necessary to provide to the Member any information, lists and
copies of documents required to be provided pursuant to Section 7.2, shall at
all times be kept at the Principal Office or at such other places as
determined by the unanimous vote of the Members. Without limiting the
foregoing, the following shall be maintained at the Principal Office: (a) a
current list of the full name and last known business address of each Manager;
(b) copies of records that would enable a Member to determine the relative
voting rights of the Members; (c) a copy of the Articles of Organization,
and any amendments thereto; (d) copies of the Company's federal, state
and local income tax returns and reports, if any, for the three (3) most
recent years; and (e) copies of any financial statements of the Company
for the three (3) most recent fiscal years. Any records maintained by
the Company in the regular course of its business may be kept on, or be
in the form of, magnetic tape, photographs or any other information storage
device, provided that the records so kept are convertible into clearly
legible written form within a reasonable period of time.
8.2 Accounting. The books of the Company: (a) for regulatory
and financial reporting purposes, shall be maintained on the cash receipts and
disbursement method of accounting except otherwise as determined by the
Majority Vote of the Members; and (b) for purposes of maintaining and
determining Capital Accounts, shall be maintained in accordance with the
provisions of this Agreement and Code Section 704.
8.3 Fiscal Year. The fiscal year of the Company shall be the
calendar year, unless otherwise determined by the Majority Vote of the
Members.
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ARTICLE 9
Tax Matters
9.1 Taxable Year. The taxable year of the Company shall be the
calendar year, unless otherwise Determined by the Majority Vote of the
Members.
9.2 Tax Controversies. The Manager is designated the "Tax
Matters Partner" (as defined in Code Section 6231), and is authorized and
required to represent the Company, at the Company's expense, in connection
with all examinations of the Company's affairs by tax authorities, including
resulting administrative and judicial proceedings. Each Member agrees to
cooperate with the Tax Matters Partner, and to do or refrain from doing any
or all things reasonably required by the Tax Matters Partner to conduct such
proceedings.
9.3 Financial Statements and Tax Return Information. The
Manager shall use its best efforts to cause to be prepared and furnished to
each of the Members by March 15 after the close of each calendar year an
unaudited income statement for such calendar year and a balance sheet as of
the end of such calendar year, a copy of the Company's federal and state
income tax returns and all other information reasonably requested by a Member.
9.4 Tax Retums. The Manager shall file on behalf of the
Company all required federal and state income tax returns.
9.5 Taxation as a Partnership. No election shall be made by the
Company or any Member for the Company to be excluded from the application of
any provision of Subchapter K, Chapter 1 of Subtitle A of the Code or from any
similar provisions of any state tax laws.
9.6 Tax Elections. All income and other tax elections required
or permitted to be made by the Company shall be made by the Manager in such
manner as will, in the opinion of the Manager, be most advantageous to a
majority in interest of the Members.
ARTICLE 10
Transfer of Units
10.1 Transfer Defined. The term "transfer," when used in this
Article 10 with respect to a Unit, shall be deemed to refer to a transaction
by which the Member assigns all or a portion of the Member's Units, or any
interest therein, to another Person, or by which the holder of a Unit
assigns the Unit to another Person as Assignee, and includes a sale,
assignment, gift, pledge, encumbrance, hypothecation, mortgage, transfer by
will or intestate succession, exchange, or any other disposition.
10.2 Transfer Prohibited. No Units shall be transferred, in
whole or in part, in except in accordance with the terms and conditions set
forth in this Article 10. Any transfer or purported transfer of any Units
not made in accordance with this Article 10 shall be null and void. If for
any reason any such transfer is not null and void, then the Assignee shall
not be a Substitute Member, and shall have no right to participate in the
Company's affairs as a Member thereof, but instead shall be entitled to
receive only the share of profits or other compensation by way of income and
the return of contributions to which the transferring Member would otherwise
be entitled at the time such transferring Member would be entitled to
receive the same.
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10.3 Requirements for Transfers.
10.3.1 Conditions Precedent to Transfers to Non-Members.
No Units may be transferred by a Member to a Person other than another Member
unless the following conditions are first satisfied:
(a) the consent of all other Members has
been obtained, which may be granted or withheld in each Member's sole
discretion, such consent to be evidenced by a written instrument, dated and
signed by each other Member, provided that this clause (a) shall not apply
if the transferor complies with Section 10.4 or if the transfer is permitted
by Section 10.7 or 10.8;
(b) the transferee and each Member execute
and file all documents as may be reasonably requested by the Manager for the
transferee to be a Substitute Member and to be bound by the terms hereof and
such transferee is admitted as a Substitute
Member; and
(c) unless waived in writing by the Manager or a
Majority Vote of the Members, the Company receives an Opinion of Counsel that
such transfer would not materially and adversely affect the classification of
the Company as a partnership for federal and state income tax purposes.
10.3.2 Legend. The transfer restrictions on Company
Units shall be conspicuously noted in an appropriate legend on any Unit
certificates issued.
10.3.3 Minors; Incompetents. A Unit may not be
transferred to a minor or any incompetent except by will or intestate
succession.
10.3.4 Assignee's Acceptance and Agreement. The
Company need not recognize, for any purpose, any transfer of all or any
fraction of a Unit unless there shall have been filed with the Company and
recorded on the Company's books a duly executed counterpart of the instrument
of assignment and such instrument evidences the written acceptance by the
Assignee of and the Assignee's agreement to be bound by all of the terms and
provisions of this Agreement.
10.3.5 Deemed Agreement. Any holder of a Unit
(including a transferee thereof) shall be deemed conclusively to have agreed
to comply with and be bound by all terms and conditions of this Agreement,
with the same effect as if such holder had executed an express acknowledgment
thereof, whether or not such holder in fact has executed such an express
acknowledgment.
10.3.6 Absolute Restrictions. Notwithstanding the
other provisions of this Article 10, no transfer of any Unit by any Member
shall be made if the transfer: (a) would violate applicable federal and/or
state securities laws or rules and regulations of the Securities and Exchange
Commission, any state securities commission or any other govenunental
authority with jurisdiction over the transfer; (b) would materially and
adversely affect the classification of the Company as a partnership for
federal or state income tax purposes; or (c) would affect the Company's
qualification as a limited liability company under the Act.
10.4 Permitted Sale. Notwithstanding clause (a) of Section
10.3.1, a Member may sell such Member's Units after complying with the
procedures set forth in this Section 10.4.
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10.4.1 Notice. If any Member ("Selling Member")
desires to sell such Member's Units, such Member shall first deliver to all
other Members ("Non-Selling Members") a written notice of the proposed
sale ("Sale Notice") setting forth the name and address of the proposed
purchaser, the purchase price (which must be an amount specified in dollars,
but which may be paid either in a lump sum or in installments over an
extended period of time) and all other ten-ns of the proposed sale.
10.4.2 Option to Purchase. The Non-Selling Members
shall have the option, which may be exercised by delivering to the Selling
Member of a written notice of exercise at any time within thirty (30) days
after the delivery of the Sale Notice, to purchase, in proportion to the
Units then owned by each of them or as they may otherwise agree, the Selling
Member's Units in the Company, at the purchase price and pursuant to the
terms set forth in the Sale Notice. If a Non-Selling Member does not elect
to purchase such Member's share of a Selling Member's Units, the other
Non-Selling Members may purchase such Units in proportion to the Units then
owned by each of them or as they may otherwise agree. If such option is
exercised, the purchase price shall be paid in accordance with the terms of
the Sale Notice, and within ten (10) days after delivery of the notice of
exercise, an appropriate assignment of the Units being sold (together with
the Certificate evidencing such Units, if any) shall be executed and
delivered by the Selling Member to the purchasing Members, free and clear of
all encumbrances.
10.4.3 Right to Sell. If the Non-Selling Members fail
to exercise such option. the Selling Member shall have the right to sell
such Member's Units to the person named in the Sale Notice at the price and
pursuant to the terms set forth therein. However, if the Selling Member
fails to exercise such right within sixty (60) days after delivery of the
Sale Notice, such right shall terminate, and the Selling Member shall not
thereafter sell such Member's Units to any person without again complying
with the foregoing procedure.
10.5 Purchase Price. The purchase price at which the Units
shall be purchased and sold shall be the @ook value ("Book Value") of the
Units as of the last day of the month ("Appraisal Date") immediately
preceding the Notice Date (as defined in Section 10.12). "Book Value" shall
be calculated by the accounting firm then engaged by the Company and such
calculation when made and delivered to the Company shall be binding upon the
Company and upon all parties bound by the terms of this Agreement. The
calculation of "Book Value" shall be made in accordance with accounting
principles applied on a basis consistent with those of the preceding years,
subject to the following provisions:
(a) all accounts payable shall be taken into account at
face amount less discounts deductible therefrom;
(b) all accounts receivable or other realized income
not theretofore reflected on the books of the Company shall be taken into
account at face amount less discounts deductible therefrom and a reasonable
reserve for bad debts;
(c) no allowance shall be made for the goodwill or
trade name of the Company; and
(d) the value of all other real and personal (tangible
or intangible) property owned by the Company shall be the fair market value
of such property as agreed upon by the selling and purchasing parties;
provided that: (i) in the event of disagreement as to the fair market value,
the value shall be determined as of the Appraisal Date and shall be made by
three appraisers; (ii) the option holding Member(s) as identified in Section
10.12, shall select one (1)
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appraiser and the other Members shall select one (1) appraiser and the
two (2) appraisers so chosen shall select a third appraiser; (iii) the
decision of a majority of the appraisers shall be binding; and (iv) the
expense of such appraisal shall be bome by the Company.
If a Member or Members may exercise an option granted pursuant to Section
10.12, such Member(s) may initiate the procedures to determine the purchase
price described in this Section 10.5 and, in such event, all Members shall
cooperate and use their best efforts to complete the procedures within
ninety (90) days after such procedures have been initiated.
10.6 Manner of Payment. Payment of the purchase price shall be
made by delivering cash equal to twenty-five percent (25%) of the purchase
price at the Closing with interest at the Prime Rate from the Appraisal
Date to the date of Closing, which shall not be more than ninety (90)
days after the Appraisal Date and the balance in three (3) equal annual
installments of principal commencing one (1) year after the Appraisal
Date, together with interest on the outstanding principal balance at the
Prime Rate from the Appraisal Date.
10.7 Exception for Transfer to Immediate Family.
Notwithstanding anything contained herein to the contrary, but subject to
Section 10.3.4, during the term of this Agreement, each Member shall be
permitted at any time and from time to time to transfer all or any portion of
such Member's Units to any member of such Member's immediate family or to
the trustee of a trust created for the benefit of a member of such Member's
immediate family. For this purpose, the "immediate family" of a Member shall
mean such Member's spouse, lineal descendants, the spouse of a lineal
descendant, ancestors and the spouse of an ancestor, brothers and sisters.
10.8 Exception for Transfer to Revocable Trust.
Notwithstanding anything contained herein to the contrary, but subject to
Section 10.3.4, during the term of this Agreement, each Member shall be
permitted at any time and from time to time to transfer all or any portion of
such Member's Units to the Trustee of any trust created by such Member during
such Member's lifetime, provided that: (a) both such trust and the transfer
of such Units are revocable by such Member during such Member's lifetime;
(b) the beneficiaries of such trust who are to receive the Units held by such
trust upon the settlor's death are Persons to whom transfers may be made
pursuant to Section 10.7; and (c) upon the death of such Member/Settlor,
the provisions contained herein otherwise applicable to a deceased Member,
if any, shall apply to the Units held by such trust as if such Units were
then owned by such deceased settlor.
10.9 Certificates of Agreed Value. Notwithstanding Section
10.5, the Members may at any time fix the Agreed Value (the "Agreed Value")
of the Units by a Certificate of Agreed Value signed or initialed by each
Member and filed with the Company. Any such certificate shall be valid only
for a period of fifteen (15) months from the date of execution. If at
any time when it becomes necessary to determine the Book Value of the
Units, a Certificate of Agreed Value is in existence and such certificate
is dated less than fifteen (15) months before the date as of which the
Book Value is to be determined, then the Agreed Value set forth in such
certificate shall be conclusive as to the Book Value and shall be accepted
as the Book Value as of the date on which Book Value is to be determined,
and no accountant's determination of Book Value shall be required or made.
To be effective any such certificate must be signed or initialed by all
Members. The Members may at any time execute a new Certificate of Agreed
Value which shall automatically replace all prior certificates and only
the last certificate shall be effective for the purpose herein specified.
10.10 Closing Procedures. The closing of any purchase and sale
of Units pursuant to this Agreement shall be held at the principal place of
business of the Company or at such other place as the parties to such closing
may agree upon. The certificates representing the
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Units, if any, duly endorsed (or if none, appropriate assignments, duly
executed), free and clear of all liens and encumbrances, shall be delivered
to the purchasing party by the selling party at the time the purchase
price is paid by delivery of the payment therefor as provided in this
Agreement.
10.11 Buy-Sell Offer.
10.11.1 Notice. A Member ("Withdrawing Member") may
terminate the Company upon giving thirty (30) days' prior written notice of
such Member's intention to terminate to the other Members ("Remaining
Members"). Such notice of termination shall include an offer by the
Withdrawing Member to purchase all the Units owned by the Remaining
Members ("Purchase Offer") on cash terms and for a stated price and, in
the alternative, to sell all of the Units owned by the Withdrawing Member
("Sale Offer") on pro rata identical terms.
10.11.2 Option of Remaining Members. For thirty (30)
days after the receipt of such notice of termination, the Remaining Members
shall have the option to accept the Purchase Offer or the Sale Offer.
Failure by the Remaining Members to serve notice of acceptance of the
Purchase Offer or Sale Offer within such thirty (30) day period shall be
deemed an affirmative acceptance of the Purchase Offer, and the Withdrawing
Members shall purchase the Units owned by the Remaining Members as stated in
the Purchase Offer. If there are two (2) or more Remaining Members and
one (1) or more Remaining Member desires to accept the Sale Offer and the
other Remaining Member desires to accept the Purchase Offer, then the
Remaining Member or Members who desire to accept the Sale Offer shall have
the right to accept the Sale Offer (in proportion to the number of Units
owned by each or as they may otherwise agree) provided such Remaining Member
or Members purchase all of the Units of the Withdrawing Member. The Company
shall not terminate if the Sale Offer is accepted by two (2) or more
Remaining Members.
10.12 Death of a Member; Option to Purchase. On the death of
an individual Member or the death of the settlor of a revocable trust which
is a Member, if the successor to such deceased Member is not a member of
such deceased Member's immediate family (as defined in Section 10.7) or a
trust created for the benefit of a member of such deceased Member's or
deceased settlor's immediate family, the surviving Members shall have the
option to purchase, in proportion to the Units then owned by each of them
or as they may otherwise agree, the Units owned by such deceased Member at
the purchase price and upon the terms specified in Sections 10.5 and 10.6,
respectively. Such option shall be exercisable by the surviving Members by
serving written notice of the exercise of such option, within ninety (90)
days after the purchase price has been determined pursuant to Section 10.5,
upon the personal representative of the deceased Member, or, if a personal
representative has not then been appointed, upon the heirs of the deceased
Member at the deceased Member's address as shown on the records of the
Company or upon the trustee of the deceased Settlor's revocable trust, as
the case may be. Such option to purchase shall terminate if the surviving
Members have not initiated the procedures to determine the purchase price
pursuant to Section 10.5 within ninety (90) days after the date of the
death of the deceased Member or the death of the settlor of a revocable
trust which is a Member. For the purposes of Sections 10.5 and 10.6 and
the option to purchase granted by this section, the term "Notice Date" means
the date of the death of the deceased Member or the settlor of a revocable
trust which is a Member.
10.13 Prioritv As to Procedures. If a notice has been given by a
Member with respect to a Permitted Sale described in Section 10.4 or a
Buy-Sell Offer described in Section 1O.11, then the procedures contained in
Section 10.4 shall be completed before the other Member may commence
independent procedures with respect to a Permitted Sale or a Buy-Sell Offer.
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ARTICLE 11
Admission of Substitute and Additional Members
11.1 Admission of Substitute Members. Upon a transfer of a Unit
by a Member in accordance with Article 1O (but not otherwise), the transferor
shall have the power to give, and by transfer of any Certificate issued shall
be deemed to have given, the transferee the right to apply to become a
Substitute Member with respect to the Unit acquired, subject to the conditions
of and in the manner permitted under this Agreement. A transferee of
a Certificate representing a Unit shall be an Assignee with respect to
the transferred Unit (whether or not such transferee is a Member or Substitute
Member with respect to other previously acquired Units) and shall not
become a Substitute Member unless and until all of the following conditions
are satisfied:
(a) the instrument of assignment sets forth the
intentions of the assignor that the Assignee succeed to the assignor's
interest as a Substitute Member in the Assignor's place;
(b) the assignor and Assignee shall have fulfilled all
other requirements of this Agreement;
(c) the Assignee shall have paid all reasonable legal
fees and filing costs incurred by the Company in connection with his
substitution as a Member; and
(d) the Members shall have unanimously approved such
substitution in writing, which approval may be granted or withheld by each
Member in each Member's sole discretion and may be arbitrarily withheld, and
the books and records of the Company have been modified to reflect the
admission.
The admission of an Assignee as a Substitute Member with respect to
a transferred Unit shall become effective on the date the Members give their
unanimous written consent to the admission and the books and records of
the Company have been modified to reflect such admission. Any Member
who transfers all of his Units with respect to which the Member had been
admitted as a Member shall cease to be a Member of the Company upon a
transfer of such Units in accordance with Article 10 and the execution
of a counterpart of this Agreement by the transferee and shall have no
further rights as a Member in or with respect to the Company (whether
or not the Assignee of such former Member is admitted to the Company as
a Substitute Member).
11.2 Issuance of Additional Units. Additional Units may be
authorized and issued by the Company upon such terms and conditions as may be
approved by the unanimous vote of the Members. Upon the proposed issuance of
any such additional Units, each existing Member shall have the preemptive
right, but not the obligation, to purchase such portion of the newly issued
Units as the ratio of the number of Units then held by such Member bears
to the total number of Units held by Members and outstanding before the
issuance of the new Units, together with such Member's proportionate share
of the other newly issued Units as to which other Members fail to exercise
their preemptive rights. Each such new Member shall, as a condition
precedent to admission to the Company as a Member, execute a counterpart of
this Agreement and execute all necessary certificates and other documents and
perform all acts in accordance with the Act to the full extent necessary
to constitute such persons a Member and to preserve the status of the
Company as a partnership for income tax purposes upon completion of such
person's admission.
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ARTICLE 12
Dissolution and Liquidation
12.1 Dissolution and Liquidation. The Company shall be dissolved
and its affairs shall be wound up upon the written consent of all Members.
12.2 Method of Winding Up. Upon dissolution of the Company
pursuant to Section 12.1, the Company shall immediately commence to liquidate
its assets and wind up its affairs. The Members shall continue to share
Income, Capital Gain and Loss during the period of liquidation and winding
up in the same proportion as before commencement of winding up and
dissolution. The proceeds from the liquidation and winding up shall be
applied in the following order of priority:
(a) to creditors, including Members who are creditors,
to the extent permitted by law, in satisfaction of liabilities of the Company
other than liabilities to Members on account of their Capital Contributions
or on account of a Member's withdrawal from the Company or pursuant to
a withdrawal of capital; and
(b) the balance, to the Members in accordance with
their Capital Accounts after they have been adjusted to reflect the fair
market value of any then remaining Company Property as if such Company
Property had been sold.
Unless the Members shall unanimously determine otherwise, all distributions
will be made in cash, and none of the Company Property will be distributed
in kind to the Members.
12.3 Filing Articles of Dissolution. Upon completion of the
distribution of Company Property as provided in this Article 12, Articles of
Dissolution shall be filed as required by the Act, and each Member agrees to
take such action may be advisable or proper to carry out the provisions of
this Article 12.
12.4 Return of Capital. The return of Capital Contributions
shall be made solely from Company Property.
ARTICLE 13
Amendment of Agreement, Meetings, Record Date
13.1 Amendments. All amendments to this Agreement shall
require a Majority Vote of the Members.
13.2 Limitations on Amendments. Notwithstanding any other
provision of this Agreement, no amendment to this Agreement may, without the
unanimous approval of the Members: (a) enlarge the obligations of any Member
under this Agreement or (b) amend this Section 13.2 or Sections 13.1, 7.3
and 7.5.
13.3 Meetings. Meetings may be called by any Member, by giving
at least ten (10) days' prior notice of the time, place and purpose of the
meeting to all Members.
13.4 Waiver of Notice; Consent to Meeting, Approval of Minutes.
The transactions of any meeting of the Company, however called and noticed,
and whenever held, are as valid as though had at a meeting duly held after
regular call and notice, if a quorum is present either in person or by
proxy, and if, either before or after the meeting, each of the Members
entitled to vote, but not present in person or by proxy, approves by signing,
a written waiver of
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notice or an approval to the holding of the meeting or an approval of
the minutes thereof All waivers, consents, and approvals shall be filed
with the Company records or made a part of the minutes of the meeting.
Attendance of a Member at a meeting shall constitute a waiver of notice
of the meeting, except when such Member objects, at the beginning of the
meeting, to the transaction of any business because the meeting is not
lawfully called or convened; and except that attendance at a meeting is
not a waiver of any right to object to the consideration of matters required
to be included in the notice of the meeting, but not so included, if the
objection is expressly made at the meeting.
13.5 Quorum. The holders of more than fifty percent (50%) of
the Units entitled to vote represented in person or by proxy, shall
constitute a quorum at a meeting of Members. The Members present at a duly
called or held meeting at which a quorum is present may continue to
participate at such meeting until adjournment, notwithstanding the withdrawal
of enough Members to leave less than a quorum, if any action taken (other
than adjoununent) is approved by the requisite percentage of Units of Members
specified in this Agreement. In the absence of a quorum, any meeting
of Members may be adjourned from time to time by a Majority Vote of the
Members represented either in person or by proxy entitled to vote, but
no other matters may be proposed, approved or disapproved.
13.6 Action Without a Meeting. Any action that may be taken by
any vote of the Members may be taken without a meeting if a consent to such
action is signed by Members holding Units representing not less than the
minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all Units entitled to vote thereon were present
and voted. Prompt notice of the taking of any action without a meeting
shall be given to those Members who have not consented in writing.
ARTICLE 14
Certificates
14.1 Issuance of Certificates. The Company may issue one or
more Certificates in the name of the Member evidencing the number of Units
issued. Upon the transfer of a Unit in accordance with Article 10, the
Company shall, if certificates have been issued, issue replacement
Certificates. All Certificates shall contain legends required by this
Agreement or otherwise required by law.
14.2 Legend on Certificates. The Company shall endorse on each
certificate representing Units owned by a Member a legend reading
substantially as follows:
The Units represented by this Certificate are subject to the terms
of an Operating Agreement dated February 17, 2000, among Village
at Oakwood L.L.C. and all of its Members, a copy of which is on
file at the principal office of the Company.
A copy of this Agreement shall be filed with the Manager of the Company.
During the term of this Agreement, the foregoing legend shall be endorsed
on each certificate representing Units hereafter issued by the Company
to any Member and to any transferee of a Member whose Units are subject
to the terms of this Agreement. No Member shall cause or permit the removal
of the legend from the certificates representing the Units owned by such
Member.
14.3 Lost, Stolen or Destroyed Certificates. The Company shall
issue a new Certificate in place any Certificate previously issued if the
Record Holder of the Certificate: (a) makes proof by affidavit that a
previously issued Certificate has been lost, stolen, or
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destroyed; (b) requests the issuance of a new Certificate before the
Company has notice that the Units evidenced by such Certificate have been
acquired by a purchaser for value in good faith and without notice of
an adverse claim; and (c) if required by the Company, delivers to the
Company a bond with surety or sureties acceptable to the Company, to indemnify
the Company against any claim that may be made on account of the alleged
loss, destruction or theft of the Certificate. The Company shall be entitled
to treat each Record Holder as the Member or Assignee in fact of any Units
and, accordingly, shall not be required to recognize any equitable or
other claim or interest in or with respect to the Units on the part of
any other Person, regardless of whether it has actual or other notice
thereof.
ARTICLE 15
General Provisions
15.1 Notices. Any notice, demand, request or report required or
permitted to be given or made to a Member under this Agreement shall be in
writing and shall be deemed given or made when delivered in person or when
transmitted postage prepaid by first-class certified mail, return receipt
requested, to the Member at the address set forth on Exhibit A attached
hereto. Any notice, payment, or report to be given to a Member hereunder
shall be deemed conclusively to have been given, upon mailing of such notice,
payment, or report to the address shown on the records of the Company,
regardless of any claim of any Person who may have an interest in the Unit by
reason of an assignment or otherwise.
15.2 Further Action. The parties to this Agreement shall
execute and deliver all documents, provide all information and take or
refrain from taking action as may be necessary or appropriate to achieve
the purposes of this Agreement.
15.3 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and each party's heirs, successors,
personal or legal representatives and permitted assignees.
15.4 Integration. This Agreement constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof
and supersedes all prior agreements and understandings pertaining thereto.
15.5 Waiver. No failure by any party to insist upon the strict
performance of any covenant, duty, agreement or condition of this Agreement or
to exercise any right or remedy consequent upon a breach thereof shall
constitute waiver of any such breach or any other covenant, duty, agreement
or condition.
15.6 Counterparts. This Agreement may be executed in
counterparts, all of which together shall constitute an agreement binding
on all the parties hereto, notwithstanding that all such parties are not
signatories to the original or the same counterpart. Each party shall
become bound by this Agreement immediately upon affixing its signature
hereto, independently of the signature of any other party.
15.7 Applicable Law, Construction. This Agreement shall be
construed in accordance with and governed by the laws of the State of
Oklahoma, without regard to its principles of conflict of laws. The rights
and obligations of the Members and the affairs of the Company shall be
governed first by the mandatory provisions of the Act, second by the
Company's Articles of Organization, third by this Agreement and fourth by the
optional provisions of the Act. In the event of any conflict among the
foregoing, the conflict shall be resolved in the order of priority set forth
in the preceding sentence. All article and section
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captions in this Agreement are for convenience only. They shall not
be deemed part of this Agreement and in no way define, limit, extend or
describe the scope or intent of any provisions hereof. Except as specifically
provided otherwise, references to "Articles" and "Sections" are to Articles
and Sections of this Agreement. Whenever the context may require, any
pronoun used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns, pronouns and
verbs shall include the plural and vice versa.
15.8 Invalidity of Provisions. If any provision of this
Agreement is or becomes invalid, illegal, or unenforceable in any respect,
the validity, legality, and enforceability of the remaining provisions
contained herein shall not be affected thereby.
15.9 Conveyances. All of the assets of the Company shall be
held in the name of the Company, unless the Members shall determine that a
Manager or a Manager's designee may hold title to any property as nominee for
the Company. Any deed, ▇▇▇▇ of sale, mortgage, lease, contract of sale or
other intstrument purporting to convey or encumber the interest of the Company
of all or any portion of the assets of the Company shall be sufficient if
signed on behalf of the Company by one (1) or more Managers. No person shall
be required to inquire into the authoity of any individual to sign any
instrument which is executed pursuant to the provisions of the Section 15.9.
15.10 Specific Performance. The parties acknowledge that is is
impossible to measure in moeny the damages which will accure to a party
hereto or to a successor in interest to a Member by reason of a failure to
perform any of the obligations under this Agreement. Therefore, if any
party hereto or any successor in interest to a Member shall institute any
action or proceeding to enforce the provisions hereof, any person (including
the Company) against whom such action or proceeding is brought hereby waives
the claim of defense therein that such party or such succssor has an
adequate remedy at law, and such person shall not urge in any such action or
proceeding the claim or defense that such remedy at law exists.
15.11 Power of Attorney.
15.11.1 Managers as Attorneys-in-Fact. By the
execution of this Agreement, or a counterpart hereof, each Member irrevocably
constitutes and appoints the Manager as the Member's true and lawful
attornys-in-fact and agent to effectuate, with full power and authority
to act in such Member's name, place, and stead in effectuating, the purposes
of the Company pursuant to the terms and conditions of this Agreement,
including the execution, acknowledgment, delivery, filing, and recording of
all certificates, documents, contracts, loan documents, or counterparts
thereof, and all other documents which the Managers deem necessary or
reasonably appropriate to do any of the following: (a) organize, qualify, or
continue the Company as a limited liability company, including qualification
of the Company in such other jurisdictions as the Company's activities may
require; (b) reflect an amendment to this Agreement or the Company's Articles
of Organization required by a change in the name of the Company, a change in
the principal place of business of the Company or, subject to the provisions
of this Agreement, the admission of a new Member to the Company, if such
admission is in compliance with the applicable provisions hereof; (c)
accomplish the purposes and carry out the powers of the Company as set forth
herein; and (d) subject to the provisions of this Agreement, effect the
dissolution and termination of the Company.
15.11.2 Nature of Special Power. The power of attorney
granted herein: (a) shall be deemed to be coupled with an interest, shall be
irrevocable and shall survive the death, incompetency, or legal disability
of a Member; (b) may be exercised only by the Manager (and his successors
and assigns), for each Member, or any or all of them, by listing all,
G:\DOCS\JCE\Shavers\VAO-OA.wpd -19-
or any, of the Members required to execute any such instrument and executing
such instrument as attomey-in-fact for all, or any one, of such Members;
and (c) shall be binding upon any transferee of a membership interest
of a Member hereunder, or any portion thereof, except that where such
transferee is qualified as a Substitute Member under this Agreement, the
power of attorney shall survive the delivery of such Units for the sole
purpose of enabling the Manager to execute, acknowledge and file any
instrument on behalf of the transferor of the Umts necessary to effect such
substitution.
In Witness Whereof, the parties hereto have executed this Agreement as
of the date first above set forth.
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THE MEMBER INTEREST DESCRIBED HEREIN HAVE
NOT BEEN-REGISTERED UNDER THE SECURITIES ACT OF
1933 OR ANY APPLICABLE STATE SECURITIES ACTS, AND
MAY NOT BE TRANSFERRED UNLESS THE
CONDITIONS OF ARTICLE 10 OF THE AGREEMENT ARE
SATISFIED.
MEMBERS' SIGNATURE PAGE
ATTACHED TO AND MADE A PART OF
THE OPERATING AGREEMENT OF
VILLAGE AT OAKWOOD L.L.C.
EFFECTIVE FEBRUARY 17,2000
Each of the undersigned hereby: (a) acknowledges receipt of a copy
of the Operating Agreement of Village at Oakwood L.L.C. ("Agreement"); and
(b) executes and swears to the Agreement, as a Member, thereby agreeing
and consenting to all the terms and provisions thereof
/s/▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
/s/▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
/s/▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/▇▇▇▇ ▇ ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
G:\DOCS\JCE\Shavers\VAO-OA.wpd -21-
MANAGER'S SIGNATURE PAGE
ATTACHED TO AND MADE A PART OF
THE OPERATING AGREEMENT OF
VILLAGE AT OAKWOOD L.L.C.
EFFECTIVE FEBRUARY 17,2000
The undersigned hereby: (a) acknowledges receipt of a copy of the
Operating Agreement of Village at Oakwood L.L.C. ("Agreement"); and
(b) executes and swears to the Agreement, as Manager, thereby agreeing
and consenting to all the terms and provisions thereof.
/s/▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
G:\DOCS\JCE\Shavers\VAO-OA.wpd -22-
EXHIBIT A
TO
OPERATING AGREEMENT
OF
VILLAGE AT OAKWOOD L.L.C.
February 17,2000
Capital Number Percentage Date of
Name and Address of Member Contribution of Units of Units Contribution
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. $250.00 250 25% February 17, 2000
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SSAN ▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. 250.00 250 25% February 17, 2000
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SSAN ▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 250.00 250 25% February 17, 2000
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SSAN ▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 250.00 250 25% February 17, 2000
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SSAN ▇▇▇ ▇▇ ▇▇▇▇
TOTALS $1,000.00 1,000 100%
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