LIMITED LIABILITY COMPANY AGREEMENT

OF

GLADES DEVELOPMENT LLC

LIMITED LIABILITY COMPANY AGREEMENT

OF

GLADES DEVELOPMENT LLC

TABLE OF CONTENTS

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LIMITED LIABILITY COMPANY AGREEMENT

FOR

GLADES DEVELOPMENT LLC

        THIS LIMITED LIABILITY COMPANY AGREEMENT OF GLADES DEVELOPMENT LLC (the “Company”) entered into as of the 4th day of April, 2003, by and between Hines Montana Development Limited Partnership, a Texas limited partnership (the “Hines Member”), and Big Mountain Development Corporation, a Montana corporation (“BMDC”).

W I T N E S S E T H:

ARTICLE I

DEFINITIONS

        1.1 Accumulated Preference Return. “Accumulated Preference Return” shall have the meaning set forth in the definition of Preference Return.

        1.2 Act. “Act” shall mean the Delaware Limited Liability Company Act, Del. Code ▇▇▇. tit. 6, ss. 18-101, et seq., as from time to time amended.

        1.3 Adjusted Capital Account Deficit. “Adjusted Capital Account Deficit” shall mean, with respect to any Member, the deficit balance, if any, in such Member’s Capital Account as of the end of the relevant fiscal year, after giving effect to the following adjustments: (i) crediting to such Capital Account any amounts that such Member is obligated to restore or is deemed to be obligated to restore pursuant to Regulations sections
1.704-1(b)(2)(ii)(b)(3), 1.704-1(b)(2)(ii)(c), 1.704-2(g)(1), and 1.704-2(i)(5), and (ii) debiting to such Capital Account the items described in Regulations section 1.704-1(b)(2)(ii)(d)(4), (5), and (6). The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the provisions of Regulations section
1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.

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        1.4 Adjustment Percentage. “Adjustment Percentage” shall mean, in the case of the reduction in the Defaulting Member’s interest in the Company pursuant to Section 3.5(a)(ii) of this Agreement, a fraction, expressed as a percentage, the numerator of which is the Defaulted Portion of the Defaulting Member’s Interest in the Company and the denominator of which is the Defaulting Member’s Horizontal Ownership Percentage (determined immediately prior to the Non-Defaulting Member’s purchase).

        1.5 Affiliate. “Affiliate” shall mean a BMDC Affiliate or a Hines Affiliate, as applicable.

        1.6 Agreement. “Agreement” shall mean this Limited Liability Company Agreement, as amended from time to time.

        1.7 Amenities. “Amenities” means the open areas, plazas, landscaped areas and other portions of the Village Core available for the common use and enjoyment of all owners and users of improvements that an Affiliate of the Hines Member or BMDC develops within the Village Core.

        1.8 Annual Plan. “Annual Plan” shall mean the annual plan for the Company proposed to the Members for approval pursuant to Section 8.4(b) of this Agreement.

        1.9 Approved Annual Plan. “Approved Annual Plan” shall mean the annual plan of the Company approved (or deemed to have been approved) by the Members pursuant to Section 8.4(b) of this Agreement, as the same may be amended from time to time as herein provided.

        1.10 Bankruptcy. “Bankruptcy” of a person shall be deemed to have occurred upon the happening of any of the following: (i) the filing by such person of an application for, or a consent to, the appointment of a trustee for such person’s assets; (ii) the filing by such person of a voluntary petition in bankruptcy or the filing of a pleading in any court of record admitting in writing its inability to pay its debts as they come due; (iii) the making by the person of a general assignment for the benefit of creditors; (iv) the filing by the person of an answer admitting the material allegations of, or its consenting to or defaulting in answering, a bankruptcy petition filed against it in any bankruptcy proceeding; (v) the entry of an order, judgment, or decree by any court of competent jurisdiction adjudicating the person a bankrupt or appointing a trustee of its assets, and such order, judgment, or decree continues unstayed and in effect for a period of 90 days; or (vi) if any petition for same shall be filed against a person and such petition is not dismissed within 120 days.

        1.11 BMDC Affiliate. “BMDC Affiliate” means WSI or any other entity owned or controlled, directly or indirectly, by WSI or BMDC.

        1.12 Buy-Sell Period. “Buy-Sell Period” shall mean the period commencing five (5) years after the date of this Agreement and ending two (2) years after such commencement date.

        1.13 Buy-Sell Right. “Buy-Sell Right” shall have the meaning set forth in Section 11.1 of this Agreement.

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        1.14 Capital Account. “Capital Account” shall mean a financial account to be established and maintained by the Company for each Member as computed from time to time in accordance with Section 6.1 hereof. A transferee of a Member’s Interest shall succeed to the transferor’s Capital Account with respect to the transferred Interest.

        1.15 Capital Contribution. “Capital Contribution” shall mean, with respect to any Member, any cash or property contribution (other than Project Land) made by the Member pursuant to this Agreement.

        1.16 Capital Return Percentages. “Capital Return Percentages” shall mean, at any point in time:

        1.17 Closing Date. “Closing Date” shall have the meaning set forth in Section 11.3 of this Agreement.

        1.18 Closing Sum. “Closing Sum” shall have the meaning set forth in Section 11.1 of this Agreement.

        1.19 Code. “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.

        1.20 Commencement of Construction. “Commencement of Construction” shall mean the date the notice (or other authorization) is given by the Company to the general contractor to commence construction of a Project.

        1.21 Company. “Company” is defined in the Preamble.

        1.22 Company Assets. “Company Assets” shall mean all interests, properties and rights of any kind owned by the Company.

        1.23 Company Available Cash Flow. “Company Available Cash Flow” shall mean, with respect to the Company, the excess of (i) all revenues and receipts of the Company from all sources for the period in question, determined in accordance with the cash receipts and disbursements method of accounting, including any amounts expended from the working capital reserve and replacement reserve accounts of the Company (whether utilized to pay costs and expenditures of the Company or distributed to the Members thereof), but excluding any Capital Contributions, over (ii) all expenditures for the period in question, determined in accordance with the cash receipts and disbursements method of accounting (including all cash operating expenses and capital expenditures) other than debt service payments and deposits to the Company’s reserve accounts (including reserves for taxes and insurance).

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        1.24 Completion Date. “Completion Date” shall mean the date (i) a Project architect certifies that the Construction Contractor has substantially completed all the construction work, including but not limited to satisfactory operation of all equipment, other than correction of all punch list items to the satisfaction of Owner, and (ii) to the extent required by applicable laws, occupancy or use of a Project is permitted pursuant to temporary certificates of occupancy or comparable approvals from the city and county governments, or other authority having jurisdiction for which the Construction Contractor is responsible.

        1.25 Conference Center Fee. “Conference Center Fee” shall mean an amount, for each Horizontal Development, equal to six percent (6.0%) of the following: the gross sales price actually received by the Company for each lot or townhome site actually sold by the Company, minus real estate commissions, title insurance premiums, transfer fees, recording costs, transaction legal fees, and other closing costs incurred by the Company in closing the sale of a lot or townhome site.

        1.26 Construction Contract. “Construction Contract” means the general construction contract entered into by the Company with a general contractor for construction of a Project.

        1.27 Construction Contractor. “Construction Contractor” means the general contractor under the Construction Contract.

        1.28 Construction Financing. “Construction Financing” means any loan or other borrowings by the Company, in accordance with the Development Plan, for the predevelopment and/or development of a Project, which is secured, in whole or in part, by Company Assets.

        1.29 Contribution Percentage. “Contribution Percentage” shall mean fifty percent (50.0%) as to BMDC and fifty percent (50.0%) as to the Hines Member.

        1.30 Cumulative Net Income. “Cumulative Net Income” shall mean the excess of (i) the Net Income (other than Net Income of the Company allocated pursuant to Section 6.2.1(a)(i) and (ii)) previously allocated to the Members, over (ii) the Net Loss previously allocated to the Members.

        1.31 Cumulative Net Loss. “Cumulative Net Loss” shall mean the excess of (i) the Net Loss previously allocated to the Members, over (ii) the Net Income previously allocated to the Members (other than Net Income of the Company allocated pursuant to Section 6.2.1(a)(i) and (ii)).

        1.32 Default Fraction. “Default Fraction” shall mean, in the case of the reduction in the Defaulting Member’s Interest in the Company pursuant to Section 3.5(a)(ii) of this Agreement, the lesser of (i) 1.0 or (ii) a fraction, the numerator of which is the product of 1.0 multiplied by the amount of the Monetary Default in question and the denominator of which is the sum of the Monetary Default in question and the Defaulting Member’s Capital Contributions which have theretofore been made to the Company.

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        1.33 Defaulted Portion. “Defaulted Portion” shall have the meaning set forth in Section 3.5(a)(ii) of this Agreement.

        1.34 Defaulting Event. “Defaulting Event” means (i) a Member’s withdrawal as a Member from the Company in willful and intentional breach of Section 9.1(b), (ii) the fraud, Gross Negligence or intentional or willful misconduct of either Member, (iii) the Transfer by a Member of all or any part of its Interest in willful and intentional breach of Sections 7.1 and 7.2, or (iv) a Member’s Bankruptcy.

        1.35 Defaulting Member. “Defaulting Member” shall mean a Member with respect to which a Defaulting Event occurs or which commits a Monetary Default.

        1.36 Defaulting Member Loan. “Defaulting Member Loan” shall have the meaning set forth in Section 3.5(a)(iv) of this Agreement.

        1.37 Defaulting Member Approval Rights. “Defaulting Member Approval Rights” shall have the meaning set forth in Section 3.5(a)(iii).

        1.38 Designated Representative(s). “Designated Representative(s)” shall have the meaning set forth in Section 5.3(b) of this Agreement.

        1.39 Development Budget. “Development Budget” means the Development Budget with respect to a Project included as part of the Development Plan approved as provided in Section 8.4, as such budget may, from time to time, be amended in accordance with this Agreement and the Development Management Agreement.

        1.40 Development Management Agreement. “Development Management Agreement” shall mean the Development Management Agreement entered into by Company and Development Manager pursuant to Section 10.1, as amended or supplemented from time to time.

        1.41 Development Manager. “Development Manager” shall mean HILP under the Development Management Agreement or any other Person retained in accordance with the terms of this Agreement to manage the development of a Project.

        1.42 Development Plan. “Development Plan” means the Development Plan for a Project approved in accordance with the Master Development Plan, as such plan is amended from time to time, in accordance with this Agreement.

        1.43 Disbursement Request. “Disbursement Request” means a requisition submitted from time to time to the Members by the Development Manager to fund costs incurred in connection with predevelopment, development, construction and marketing activities of a Project pursuant to the Development Plan and the Development Management Agreement and which shall state the date on which the funds requested are to be contributed (or loan proceeds drawn), which date shall not be less than five (5) business days following the receipt of such Disbursement Request by the Members.

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        1.44 Electing Member. “Electing Member” shall have the meaning set forth in Section 11.1 of this Agreement.

         1.45 Election. “Election” shall have the meaning set forth in Section 11.2(c) of this Agreement.

        1.46 Election Date. “Election Date” shall have the meaning set forth in Section 11.2(c) of this Agreement.

        1.47 Failure Notice. “Failure Notice” shall have the meaning set forth in Section 11.1(c) of this Agreement.

        1.48 FMV. “FMV” shall mean fair market value determined in accordance with the appraisal or arbitration procedure described in Exhibit B hereto.

        1.49 Forced Sale. “Forced Sale” shall have the meaning set forth in Section 11.2(a) of this Agreement.

        1.50 Forced Sale Notice. “Forced Sale Notice” shall have the meaning set forth in Section 11.2(a) of this Agreement.

        1.51 Forced Sale Price. “Forced Sale Price” shall have the meaning set forth in Section 11.2(b) of this Agreement.

        1.52 Forced Sale Right. “Forced Sale Right” shall have the meaning set forth in Section 11.2(a) of this Agreement.

        1.53 Forced Sale Value. “Forced Sale Value” shall have the meaning set forth in Section 11.2(e) of this Agreement.

        1.54 Gross Negligence. “Gross Negligence” shall mean a Member’s failure, through act or omission, to perform a material duty specifically set forth herein in reckless disregard of the consequences thereof.

        1.55 HILP. “HILP” shall mean ▇▇▇▇▇ Interests Limited Partnership, a Delaware limited partnership, or any successor to all or substantially all of the assets of such entity.

        1.56 Hines Member. “Hines Member” means Hines Montana Development Limited Partnership, or any other person or entity that succeeds such partnership in such capacity as a Member.

        1.57 Hines Affiliate. “Hines Affiliate” means any one or more of (i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, his spouse and his children (including, without limitation, children by adoption); (ii) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, his spouse and his children (including, without limitation, children by adoption); (iii) a trust, all the vested beneficiaries of which are persons described in (i) and (ii) of this definition; (iv) a general or limited partnership, in which the only general partners are ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, a trust described in (iii) or an entity or party described in one of the other items of this definition; (v) a limited liability company in which the only managing members are one or more of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, a trust described in (iii), or an entity described in one of the other items of this definition; (vi) a corporation all the stock of which is owned, directly or indirectly, by persons, entities or parties referred to in this definition; (vii) HILP; (viii) in the case of the deaths of both ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, the estate of either of them or the issue (including, without limitation, children by adoption and grandchildren), brothers, sisters and spouses of issue of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇; and (ix) any other entity owned or controlled, directly or indirectly, by an entity or person described in one of the other items of this definition.

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        1.58 Horizontal Development. “Horizontal Development” means the development of lots for homesites and townhomes or other residential development within the Non-Core Real Estate.

        1.59 Horizontal Ownership Percentage. “Horizontal Ownership Percentage” shall mean (i) in the case of BMDC, sixty-three percent (63.0%), and (ii) in the case of the Hines Member, thirty-seven percent (37.0%); provided, however, that the Members’ respective Horizontal Ownership Percentages may be adjusted as provided in Section 3.5(a)(ii) of this Agreement.

        1.60 Infrastructure Costs. “Infrastructure Costs” means the costs of installing streets, roads, utilities and other service facilities (e.g., parking, common garbage collection facilities) and common recreational facilities available for all users of the Village Core to provide utilities and services for improvements or users of improvements developed (or planned to be developed).

        1.61 Initiating Member. “Initiating Member” shall have the meaning set forth in Section 11.2(a) of this Agreement.

        1.62 Interest. “Interest” means, as to any Member, all of the Member’s interest in the Company, including any and all benefits to which the holder of an interest in the Company may be entitled as provided in this Agreement and under the Act, together with all obligations of the Member to comply with the terms and provisions of this Agreement (including the Member’s Project Capital Commitment).

        1.63 Land Agreement. “Land Agreement” shall mean, as to the initial land to be developed by the Company, that certain Agreement for Sale and Purchase of Land dated as of April 4, 2003, between HILP and WSI, as amended by mutual agreement of HILP and WSI from time to time. If the Company elects to develop additional land, the term “Land Agreement” shall in turn refer to such subsequent Agreement(s) for Sale and Purchase of Land as may be in effect for development of such additional land.

        1.64 Land Note. “Land Note” shall mean, as to the initial land to be developed by the Company, the Horizontal Land Note, in the original principal amount of $2,520,000.00, which is payable to WSI and given as consideration for the purchase of the initial Project Land. If the Company elects to develop additional land, the term “Land Note” shall in turn refer to such subsequent Horizontal Land Note(s) given as consideration for the purchase of the additional land to be developed.

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        1.65 Liquidating Member. “Liquidating Member” shall have the meaning set forth in Section 9.3 of this Agreement.

        1.66 Major Decision. “Major Decision” shall have the meaning set forth in Section 4.4 of this Agreement.

        1.67 Manager. “Manager” shall mean the Hines Member or any other Member that succeeds the Hines Member in such capacity pursuant to the terms hereof.

        1.68 Master Development Agreement. “Master Development Agreement” shall mean that certain Master Development Agreement dated as of March 12, 2001, by and among HILP, BMDC and WSI, as amended from time to time.

        1.69 Member Loan. “Member Loan” shall mean a loan made by a Member to the Company pursuant to the provisions of Section 3.6 hereof.

        1.70 Member Nonrecourse Debt. “Member Nonrecourse Debt” shall have the meaning ascribed to the term “partner nonrecourse debt” in Regulations section 1.704-2(b)(4).

        1.71 Member Nonrecourse Debt Minimum Gain. “Member Nonrecourse Debt Minimum Gain” shall have the meaning ascribed to the term “partner nonrecourse debt minimum gain” in Regulations section 1.704-2(i)(2).

        1.72 Member Nonrecourse Deductions. “Member Nonrecourse Deductions” shall mean any item of partnership loss, deduction, or expenditure under section 705(a)(2)(B) of the Code that is attributable to a Member Nonrecourse Debt, as determined pursuant to Regulations section 1.704-2(i)(2).

        1.73 Members. “Members” shall mean the Hines Member, BMDC, and their successors and assigns, any one of which may be referred to individually as a “Member.”

        1.74 Members’ Total Outstanding Capital Amount. “Members’ Total Outstanding Capital Amount” shall mean the sum of the Outstanding Capital Contributions, accrued unpaid Preference Returns and accrued unpaid Accumulated Preference Return of all the Members.

        1.75 Minimum Gain. “Minimum Gain” shall have the meaning set forth in Regulations section 1.704-2(d)(1) and shall mean the amount determined by (i) computing for each nonrecourse liability of the Company any gain the Company would realize if it disposed of the property subject to that liability for no consideration other than full satisfaction of the liability and (ii) aggregating the separately computed gains. If, pursuant to Regulations sections 1.704-1(b)(2)(iv)(d) or 1.704-1(b)(2)(iv)(f), Company property is properly reflected on the books of the Company at a book value that differs from the adjusted tax basis of such property, the calculation of Minimum Gain pursuant to the preceding sentence shall be made by reference to such book value. For purposes hereof, a liability of the Company is a nonrecourse liability to the extent that no Member or related person bears the economic risk of loss for that liability within the meaning of Regulations section 1.752-2.

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        1.76 Monetary Default. “Monetary Default” shall mean, with respect to the Company, the failure by any Member to make any Capital Contribution that such Member is required to make pursuant to Sections 3.2 or 3.3 of this Agreement, which failure is not cured within 10 business days of the actual receipt or refusal of service of written notice of demand from the Non-Defaulting Member for payment of such defaulted amount.

        1.77 Net Income. “Net Income” shall mean for a taxable year of the Company or other period the excess of (i) the income and gain of the Company for such year or period determined in accordance with the accounting principles described in Section 8.2, over (ii) the deductions and losses of the Company for such year or period determined in accordance with the accounting principles described in Section 8.2.

        1.78 Net Loss. “Net Loss” shall mean for a taxable year of the Company or other period the excess of (i) the deductions and losses of the Company for such year or period determined in accordance with the accounting principles described in Section 8.2, over (ii) the income and gain of the Company for such year or period determined in accordance with the accounting principles described in Section 8.2.

        1.79 Non-Core Real Estate. “Non-Core Real Estate” shall mean the developable portion of Big Mountain Resort located outside the Village Core, currently contemplated for development as single-family lots, townhome sites, apartments, condominiums or other residential uses.

        1.80 Non-Defaulting Member. “Non-Defaulting Member” shall mean a Member other than a Defaulting Member.

        1.81 Non-Electing Member. “Non-Electing Member” shall have the meaning set forth in Section 11.1 of this Agreement.

        1.82 Nonrecourse Deductions. “Nonrecourse Deductions” shall have the meaning ascribed to such term in Regulations section 1.704-2(b)(1).

        1.83 Operating Shortfall. “Operating Shortfall” shall have the meaning set forth in Section 3.3(a) of this Agreement.

        1.84 Outstanding Capital Contribution. “Outstanding Capital Contribution” shall mean the excess of (i) the aggregate amount of a Member’s Capital Contributions pursuant to Article III, over (ii) the aggregate amount previously distributed to such Member pursuant to Section 6.6(e).

        1.85 Person. “Person” shall mean an individual, a trust, an estate, a governmental entity or subdivision, a partnership, a corporation, a joint venture, a company, a firm or any other entity whatsoever.

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        1.86 Plans. “Plans” shall mean the plans, specifications, drawings and other materials which describe, in appropriate detail at the time, the improvements planned for a Project consistent with the Development Plan approved by the Members and any changes thereto approved by the Members to the extent such approval is required in this Agreement, including plans for any Infrastructure or Amenities associated with a Project.

        1.87 Pledge. “Pledge” shall mean any voluntary pledge, mortgage, deed of trust, security interest or other consensual lien or hypothecation of, in or on any Member’s Interest or right to receive distributions from the Company.

        1.88 Preference Return. “Preference Return” shall mean a return at a rate equal to eight percent (8.0%) per annum on the amount of each Member’s Outstanding Capital Contribution existing from time to time. To the extent that the Company has Company Available Cash Flow, the Preference Return shall be paid quarterly in cash. To the extent that the Company does not have Company Available Cash Flow sufficient to pay the Preference Return when due, the Preference Return shall compound annually at eight percent (8.0%) per annum and shall accumulate (the “Accumulated Preference Return”).

        1.89 Price. “Price” shall have the meaning set forth in Section 11.1(c) of this Agreement.

        1.90 Prime Rate. “Prime Rate” shall mean the prime lending rate in effect from time to time at ▇. ▇. ▇▇▇▇▇▇ Chase & Company in New York City, New York, or any successor thereto; provided, however, that in the event that no prime lending rate shall be in effect at ▇. ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ & Company in New York City, New York, or its successor, “Prime Rate” shall mean the highest domestic prime lending rate published from time to time in the Wall Street Journal.

        1.91 Project. “Project” shall mean the initial Project Land and the improvements to be constructed thereon, in accordance with the Development Plan approved as provided herein, including all buildings, structures and improvements (including the footings and foundations, columns, piles, improvements, fixtures, equipment and other installations of such buildings and structures) now or hereafter erected on, in, under or above the initial Project Land. If the Company elects to undertake development of additional land, the term “Project” shall in turn refer to such additional land to be developed and the improvements to be constructed thereon, in accordance with the Development Plan approved for such development, including all buildings, structures and improvements (including the footings and foundations, columns, piles, improvements, fixtures, equipment and other installations of such buildings and structures) now or hereafter erected on, in, under or above the additional land to be developed. The Project that will be developed on the initial Project Land is sometimes referred to as the initial Project.

        1.92 Project Capital Commitment. “Project Capital Commitment” shall mean the aggregate amount that each Member has agreed to contribute to the capital of the Company with respect to a Project pursuant to Section 3.2.

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        1.93 Project Costs. “Project Costs” means all costs and expenses incurred after the date of this Agreement in developing, constructing and repairing a Project, including: all costs and expenses of every kind incurred in connection with the construction, ownership, maintenance, repair and restoration of a Project at any time (including before the formation of the Company) except land acquisition costs, including, but not limited to, the following: demolition costs, construction costs of all improvements; costs of temporary facilities required for interim use pending final completion of improvements of a Project; operating costs of temporary facilities; governmentally imposed costs and burdens; a proportionate share (based on an allocation formula mutually approved by the Members) for professional fees and expenses of architectural and engineering firms employed in connection with land use approvals for the Village; professional fees and expenses of architectural and engineering firms for the design and construction of a Project; utility costs during construction of a Project; an allocation of off-site Infrastructure Costs and costs of Amenities properly attributable to the construction of a Project (based on an allocation formula mutually approved by the Members or otherwise as provided in a Project Budget) and the Conference Center Fee for Horizontal Developments; ad valorem taxes and other impositions and all amounts paid to governmental authorities to permit construction of a Project following contribution of Project Land to the Company; insurance during construction of a Project including owner’s and mortgagee’s title insurance, builders risk insurance and liability insurance; the cost of all bonds obtained in connection with the construction of a Project (including payment and performance bonds and bonds with respect to lien claims); interest charges, fees and costs, if any, incurred for borrowings of the Company; amounts paid all consultants retained in connection with the construction of a Project; costs of Project evaluation reports; marketing costs and sales costs and expenses; title insurance, transfer taxes and other transaction costs; leasing costs and expenses; all legal fees and expenses associated with acquisition of a Project (or interests therein) and zoning, development and land use approval activities with respect to a Project excluding legal costs of acquiring Project Land (other than additional property acquired after the date of this Agreement); all salaries, bonuses and benefits of Project development and clerical personnel and all reimbursable expenses paid under the Development Management Agreement with respect to a Project; accounting fees incurred in connection with a Project, including without limitation fees and expenses paid to Ernst & Young, LLP or such other accounting firm as the Company may employ to review and audit expenditures for Project Costs (including “soft” costs) which are properly allocable to a Project; an allocation of central accounting and general and administrative costs of the ▇▇▇▇▇ Member or BMDC attributable to the development of a Project which are reimbursable pursuant to the Development Management Agreement in the amount budgeted for such reimbursement(s) in the Development Budget; and travel costs incurred in development, marketing and sale of a Project.

        1.94 Project Land. “Project Land” shall mean, as to the initial development to be undertaken by the Company, the parcel or parcels of land situated in the County of Flathead, State of Montana, as more particularly described on Exhibit A hereto. If the Company elects to develop additional land, the term “Project Land” shall in turn refer to such additional land to be developed. The land described on Exhibit A is sometimes referred to as the initial Project Land.

        1.95 Project Partnership. “Project Partnership” means a partnership, limited liability company, corporation or other entity, if any, formed for the ownership and development of a Project and in which the Company is a partner, member or owner, as applicable to the particular type of entity.

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        1.96 Project Partnership Agreement. “Project Partnership Agreement” means the partnership, limited liability company or other entity formation documents for a Project Partnership.

        1.97 Receiving Member. “Receiving Member” shall have the meaning set forth in Section 12.2(a) of this Agreement.

        1.98 Regulations. “Regulations” shall mean the Treasury Regulations promulgated pursuant to the Code.

        1.99 Regulatory Allocations. “Regulatory Allocations” shall mean the allocations set forth in Section 6.3 of this Agreement, which allocations are intended to comply with certain requirements of Regulations sections 1.704-1(b) and 1.704-2.

        1.100 Special Party. “Special Party” shall have the meaning set forth in Section 13.21 of this Agreement.

        1.101 Transfer. “Transfer” shall mean any sale, assignment, transfer, gift, conveyance or other disposition, whether voluntary or involuntary (by operation of law or otherwise), of any Interest of a Member in the Company.

        1.102 Village Core. “Village Core” shall mean means the portion of the Big Mountain Resort containing approximately fifteen (15) acres, more or less, located within the Village, as more fully shown on the Approved Master Plan.

        1.103 WSI. “WSI” shall mean Winter Sports, Inc., a Montana corporation.

ARTICLE II

THE COMPANY

        2.1 Purpose of the Company. The purpose of the Company is, as to the initial Project Land and any additional land that the Company elects to develop, to (i) exercise predevelopment activities with respect to each Project and (ii) directly (or indirectly through ownership of an interest in a Project Partnership) acquire, obtain, own, manage, develop, operate, finance, sell and otherwise deal with each Project and in all respects act as owner (or as owner of ownership of an interest in a Project Partnership that is the owner) thereof, upon and subject to the terms and conditions of this Agreement and any Project Partnership Agreement.

        2.2 Company Name and Office. The name of the Company shall be “Glades Development LLC,” and the business of the Company shall be conducted under that name. The principal place of business of the Company shall be located at P. O. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇. The Company may maintain other offices as may be designated from time to time by Manager for the purpose of carrying out the business of the Company. Manager shall give BMDC written notice of any change in the principal place of business of the Company.

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        2.3 Manager. The initial Manager is the ▇▇▇▇▇ Member, and its principal office address is ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.

        2.4 BMDC. The name and address of BMDC are Big Mountain Development Corporation, The Big Mountain, P. O. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.

        2.5 Term of the Company. The term of the Company shall commence on the date of the filing of the Certificate of Formation creating the Company with the Secretary of State of the State of Delaware and shall continue until terminated as provided in Article IX; provided, however, that this Agreement shall not be effective until it is executed and delivered.

        2.6 Fictitious Name Certificates. Manager shall promptly execute and file with the proper offices in each county, or other appropriate subdivision in each jurisdiction in which the Company conducts business, one or more certificates as are required by any fictitious name act or assumed name act statute in effect as to each such jurisdiction.

        2.7 Title to Property. Legal title to all Company Assets shall be taken and at all times held in the name of the Company.

        2.8 Registered Office and Agent. The Company shall maintain a registered office and agent in Delaware, as may be designated from time to time by Manager. The address of the initial registered office of the Company in Delaware shall be ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The name and address of the initial registered agent of the Company for service of process are The Corporation Trust Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Manager shall provide prompt written notice to BMDC of any change in the registered office or registered agent.

        2.9 Qualification. Manager is authorized to do any and all acts necessary to authorize or qualify the Company to do business in the State of Montana and in each jurisdiction in which the Company conducts business.

ARTICLE III

CAPITALIZATION AND FINANCING

        3.1 Contribution of Certain Property; Assumption of Land Note.

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        3.2 Capital Contributions Incident to a Project.

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        3.4 Wire Transfer. The capital contributions required by Sections 3.2 and 3.3 above shall be made by wire transfer of funds to a Company account designated by Manager.

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        3.5 Failure of a Member to Satisfy Monetary Obligations.

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        3.6 Member Loans. Either Member, with the consent of the other Member, may elect under this Section 3.6 to loan funds to the Company or to cause such a loan to be made by an Affiliate of either Member. Any such loan by a Member or an Affiliate is herein called a “Member Loan”. Each Member Loan shall accrue interest on unpaid principal at a rate per annum equal to the lesser of (i) three percent (3.0%) above the Prime Rate and (ii) the maximum non-usurious rate allowed by applicable law. Member Loans shall not be considered Capital Contributions.

ARTICLE IV

RIGHTS AND OBLIGATIONS OF MANAGER;
MANAGEMENT OF THE COMPANY

        4.1 Management. Subject to the provisions and delegations herein set forth, the management and control of the Company shall be exclusively vested in Manager.

        4.2 Manager. The Members have designated and do hereby designate the Hines Member as the Manager of the Company, subject to the rights of the Members as provided herein. Except as otherwise provided in Section 4.4 with respect to Major Decisions, the management of the Company shall be the obligation and responsibility of and rest exclusively with Manager, who shall have all the rights and powers as are necessary or advisable to the management of the business and affairs of the Company. In this regard, Manager shall devote such time and talents to such management as shall be reasonably necessary from time to time to conduct the business of the Company in an efficient manner. In order to satisfy the duties and obligations imposed by the preceding two sentences, and subject to the limitations set forth in this Agreement and the Act, Manager shall carry out the objectives and purposes of the Company set forth in Section 2.1 and otherwise manage the business and affairs of the Company, in its own capacity, or in the Company’s capacity as the managing member or general partner of any Project Partnership, and perform all acts and enter into such contracts and other undertakings authorized hereunder, including, without limitation, the power:

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        Without limiting the foregoing, the Manager shall have the following powers:

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The Manager shall be reimbursed by the Company for all actual, reasonable and necessary out-of-pocket expenses incurred in connection with the discharge of its duties hereunder as Manager.

        4.3 Preparation and Filing of Tax Returns and Required Tax Elections. Manager shall cause the preparation of all Company tax returns so as to permit the timely filing thereof, shall make on behalf of the Company all tax elections and determinations, and shall timely file all other writings required by any governmental authority having jurisdiction to require such filing. Manager is hereby designated as the “tax matters partner” of the Company as defined in section 6231(a)(7) of the Code. The tax matters partner shall furnish written reports to all Members on a timely basis that detail the status of any administrative or judicial proceeding relating to the federal income tax treatment of “partnership items” (as defined in section 6231(a)(3) of the Code or Regulations promulgated thereunder). The tax matters partner shall also furnish written notice (including a copy of any written communication) to the Members of any written communication sent to or received from the Internal Revenue Service within 10 days of the date such communications are sent or received. The Members intend that the Company be treated as a partnership for federal income tax purposes, rather than an association taxable as a corporation.

        4.4 Specific Limitations on Manager. Notwithstanding anything to the contrary contained in this Agreement or the Act, other than as set forth in Section 3.5(a)(iii) hereof, without the prior written approval of the Members in their sole discretion, Manager shall have no right, power, or authority to do any of the following acts (each of which is herein called a “Major Decision”), except to the extent the matter or action is included or authorized by an Approved Annual Plan:

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        4.5 Safekeeping of Company Assets. Manager shall not employ Company funds or Company Assets in any manner except for the exclusive benefit of the Company. Manager shall at all times use commercially reasonable efforts at the Company’s expense to maintain the minimum insurance coverage on each Project approved by the Members from time to time in connection with the approval of the Development Plan or the Annual Plan with respect to the Project.

        4.6 Contracts with the Hines Member and Affiliates of the ▇▇▇▇▇ Member.

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        4.7 Permissible Activities of the Members. (a) Except as set forth in Section 4.7(b), the Members and their Affiliates may individually and/or with others (i.e., other than in their capacity as Members) engage in other activities for profit, whether in the real estate business or otherwise, including, without limitation, the ownership, operation, development (subject to the following provisions), leasing and management of other properties similar to a Project, and may in the future participate in partnerships or other ventures for such purposes. Neither the Company nor the Members shall have any right by virtue of this Agreement in or to such independent ventures or to the income or profits derived therefrom.

        4.8 Exculpation of Manager.

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        4.9 Approval of Members. Manager shall submit to the Members in writing for their approval each act, item or decision with respect to which Manager is required to obtain the approval of the Members pursuant to the terms of this Agreement, including each act, item or decision described in Section 4.4. Except where a different time period is established elsewhere in this Agreement, each Member shall then have a period of ten (10) business days from the date upon which it receives (or is deemed to have received) such written notice in which to approve or disapprove the act, item or decision in question. In the event that a Member fails to notify Manager of its approval or disapproval of the act, item or decision in question within the time period set forth in the preceding sentence, and such notice is not received for two (2) business days following receipt (or refusal of service) by such Member of an additional notice, such Member shall be deemed to have approved such act, item or decision. Notwithstanding the foregoing, however, in the event of any emergency posing an imminent threat to persons or property, Manager shall be required to provide only such notice as is practical under the circumstances before taking such action as Manager reasonably believes to be necessary in order to remove such imminent threat. Furthermore, all matters approved or provided for in the Development Plan or an Approved Annual Plan shall be deemed to have been approved by the Members.

ARTICLE V

RIGHTS AND OBLIGATIONS OF THE MEMBERS

        5.1 Limited Liability. The Members shall not be personally liable for any of the debts of the Company or any Project Partnership or any of the losses thereof.

        5.2 Examination of the Company Records. The Members or their representatives may, during regular business hours, examine the records (at a Project, at the regional office of HILP or at such other location approved by the Members where such records are maintained) or property of the Company or otherwise inquire as to Company affairs.

        5.3 Reliance on Authority of Person Signing Agreement; Designated Representatives.

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ARTICLE VI

MAINTENANCE OF CAPITAL ACCOUNTS;
ALLOCATION OF COMPANY NET INCOME,
NET GAIN AND NET LOSS;
DISTRIBUTION OF NET CASH FLOW

        6.1 Capital Accounts.

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        6.2 Allocation of Net Income and Net Loss

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        6.3 Limitations and Qualifications Regarding Special Allocations. Notwithstanding the provisions of Section 6.2, Net Income and Net Loss of the Company (or items of income, gain, loss, deduction or credit, as the case may be) shall be allocated in accordance with the following provisions of this Section 6.3 to the extent such provisions shall be applicable.

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        6.4 Contributed Property. In accordance with Section 704(c) of the Code and applicable Treasury Regulations, income, gain, loss and deduction with respect to any property contributed to the Company (or any predecessor thereto) shall, solely for tax purposes, be allocated among the Members so as to take account of any variation between the adjusted basis of such property to the Company (or any predecessor thereto) for federal income tax purposes and the fair market value of such property for federal income tax purposes at the time of contribution. In addition, in the event that any asset of the Company is revalued pursuant to the provisions of Section 704(b) of the Code and the Treasury Regulations thereunder, subsequent allocations of income, gain, loss and deduction for tax purposes with respect to such asset shall take account of any variation between the adjusted basis of such assets for federal income tax purposes and its adjusted value, in the same manner as under Section 704(c) of the Code and the applicable Treasury Regulations. In making the adjustments required by Section 704(c) of the Code and this Section 6.4, the Company shall elect to use the traditional method with curative allocations within the meaning of Treasury Regulations Section 1.704-3(c).

        6.5 Allocation of Items with Respect to Interests Transferred. If any Interest is transferred during any fiscal year, the Net Income and Net Loss attributable to such interest for such fiscal year will be divided and allocated proportionately between the transferor and the transferee by taking account of their varying interests in the Company during such fiscal year on a daily, monthly, or other basis, as determined by Manager, using any method permitted by section 706 of the Code and the Regulations promulgated thereunder.

        6.6 Distribution of Company Available Cash Flow. The Company Available Cash Flow shall be distributed (subject to any amounts reserved by the Manager) no less frequently than quarterly as follows:

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ARTICLE VII

ASSIGNABILITY

        7.1 Transfers and Pledges. Except as contemplated in this Section 7.1 or Article XI, no Member shall Transfer or Pledge all or any part of its Interest without the prior written consent of the other Member which approval may be given or withheld in the sole and absolute discretion of the other Member. Nothing herein shall prohibit the Transfer or Pledge of any limited partner interest in any Member of the Company.

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        7.2 Additional Covenants Concerning Transfers. In the event of any Transfer of an Interest in accordance with the provisions of this Article VII, the Members agree to cooperate fully in order to facilitate such Transfer, such cooperation to include without limitation the execution of all appropriate instruments or documents evidencing such Transfer or such Member’s consent thereto, provided that any reasonable expenses incurred by the non-transferring Member shall be reimbursed by the other Member and the non-transferring Member shall not be required to incur any additional risk, liability or obligation in connection therewith. In no event shall any Member be permitted to Transfer an Interest if such Transfer violates applicable laws, or any rule or regulation promulgated thereunder, or causes a termination of the Company for purposes of Section 708 of the Code, and, if required by the non-transferring Member, the transferring Member shall obtain and deliver to the non-transferring Member an opinion, in form and substance reasonably satisfactory to the non-transferring Member, of counsel reasonably acceptable to the non-transferring Member, to the effect that any such Transfer will not be in violation of such laws, rules or regulations and will not cause such a termination of the Company.

        7.3 Admission as Substituted Member. Any person acquiring an Interest in the Company shall have no right to participate in the management of the business and affairs of the Company except upon the approval of the other Members in their reasonable discretion; provided, however, that in the event the ▇▇▇▇▇ Member Transfers its Interest to an entity controlled, directly or indirectly, by a ▇▇▇▇▇ Affiliate for purposes of providing an Investor (as defined in the Master Development Agreement) with an economic interest in the Company, such transferee shall be admitted as a Member and as Manager of the Company. It is the intent of the parties that at all times there shall be a single decision making entity for each of the ▇▇▇▇▇ Member and BMDC and in the event of a partial Transfer by either, the original Member shall be designated as such single decision making entity for all purposes hereof and such original Member’s successors shall be bound by such decision of its transferor for all purposes, including, without limitation, any course of action taken by such original Member pursuant to Article XI. Any Member Interest transferred pursuant to any provision of this Article VII shall thereafter remain subject to all the provisions of this Article VII and this Agreement.

ARTICLE VIII

ACCOUNTING PROCEDURE

        8.1 Fiscal Year. The fiscal year of the Company shall begin on January 1 and shall end on December 31 of each year.

        8.2 Books of Account. There shall be kept books of account at the offices of the Company in which shall be entered fully and accurately each and every transaction of the Company. The books shall be kept using the accrual method of accounting. Each Member shall have unrestricted access to and the right to inspect the books and records of the Company and the right to consult with and advise those persons carrying out the business of the Company upon reasonable notice during business hours.

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        8.3 Annual Reports.

        8.4 The Development Budget, the Development Plan and the Annual Plan.

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        8.5 Multiple Projects. If the Company undertakes more than one Project, the budgeting and reporting for each Project shall be maintained separately for each Project.

ARTICLE IX

DURATION AND DISSOLUTION

        9.1 Dissolution.

        9.2 Liquidation.

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        9.3 Liquidation of a Member’s Interest. Notwithstanding anything herein to the contrary, in the event of the liquidation of an Interest other than in connection with the liquidation of the Company, the Company shall distribute to such Member (the “Liquidating Member”) in liquidation of its interest cash or other assets with an aggregate value equal to the positive balance in the Liquidating Member’s Capital Account, as adjusted to reflect all allocations to the Liquidating Member as provided in this Section 9.3 and in Article VI hereof. Immediately prior to the distribution described in the preceding sentence, a liquidating trustee, appointed as provided in Section 9.2, shall determine the fair market value of the Company Assets by such reasonable methods of valuation as it may adopt, and all Members’ Capital Accounts shall be charged or credited, as the case may be, as if such assets had been sold at such fair market value and the net gain or net loss recognized thereby had been allocated to and among the Members in accordance with Section 6.2 above. The adjustment described in this Section 9.3 shall take place on or before the later of (i) the end of the taxable year of the Company in which the liquidation occurs or (ii) 90 days after the date of such liquidation.

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ARTICLE X

COMPENSATION AND FEES

        10.1 Management Fee. The Company shall retain the Development Manager to perform the services of development manager under the Development Management Agreement and shall pay to Development Manager the fees provided therein.

        10.2 Reimbursement of Expenses. The Company shall pay to the Manager, as and when requested, the amounts necessary to reimburse the Manager for the direct third-party out-of-pocket expenses actually incurred by it in administering the Company hereunder as set forth in the Development Plan or Approved Annual Plan.

ARTICLE XI

BUY-SELL PROCEDURES/FORCED SALE

        11.1 Buy-Sell Right. (a) At any time during the Buy-Sell Period, either the ▇▇▇▇▇ Member, on the one hand, or BMDC, on the other hand (the actual Member giving such notice being herein called the “Electing Member”), shall have the option (“Buy-Sell Right”) to cause to occur the buy-sell rights under this Article XI by giving written notice thereof to the other Member (the Member receiving such notice being herein called the “Non-Electing Member”).

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        11.2 Forced Sale.

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In the event the Receiving Member fails to give the Initiating Member written notice of the Receiving Member’s Election on or before the Election Date, the Initiating Member may either withdraw its Forced Sale Notice or shall give the Receiving Member a final written notice stating that the Election Date has occurred. In the event the Receiving Member fails to give the Initiating Member written notice of the Receiving Member’s Election within ten (10) days following the Receiving Member’s receipt of such final notice, the Receiving Member shall be deemed to have made an Election to agree to sell under Section 11.2(c)(i) above.

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        11.3 Closing. The closing of the purchasing Member’s purchase of the other Member’s Interest pursuant to Section 11.1 or Section 11.2(c)(ii), as applicable, shall be held at the principal office of the Company, at 10 a.m., local time, on such business day within the applicable period for completing the purchase and sale referred to in Section 11.1 or 11.2 hereof as the purchasing Member may select (provided that the purchasing Member shall give to the Company and to the non-purchasing Member notice of such selected date at least ten (10) days prior thereto), or if the purchasing Member shall not select a date for such closing, then on the last day for closing under Section 11.1 or 11.2 (or if such last day shall not be a regular business day, then on the next business day following such last day) (the “Closing Date”). Notwithstanding the foregoing, the purchasing Member may at any time upon not less than ten (10) days’ written notice set a revised Closing Date so long as it is earlier than the original Closing Date. Pending the closing, Manager shall cause the business of the Company to be conducted in the ordinary course and shall not pay or incur any costs, expenses or obligations or accelerate or defer the receipt of any revenues in such a way as to cause the Company Available Cash Flow that is to be distributed on the Closing Date as provided in clause (iii) below or the operating expenses or Company liabilities as of the Closing Date to be materially different from what such would have been as of such date in the absence of the purchase and sale pursuant to this Article XI. At the closing,

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        11.4 Default by Purchasing Member. In the event that the purchasing Member shall default in its obligation to consummate the purchase contemplated by Section 11.1 or Section 12.2(c)(ii) and such failure continues for more than five business days following written notice thereof, then the non-purchasing Member shall, at its option, have the right to (i) (x) in the case of a Buy-Sell pursuant to Section 11.1, become the purchasing Member on the same terms and provisions as were applicable to the purchase that the Defaulting Member failed to close with a ten percent (10.0%) discount on the amount payable or (y) in the case of an election pursuant to Section 11.2(c)(ii), elect to acquire the Defaulting Member’s Interest for an amount equal to ninety percent (90.0%) of the Defaulting Member’s Forced Sale Value (taking into account the adjustments set forth in the first partial sentence of Section 11.3(i)); or (ii) abandon the purchase and sale contemplated by this Article XI and carry forward as if the Buy-Sell Right or Forced Sale Right had not been exercised; or (iii) if it had not been the Electing Member with respect to the Buy-Sell Right or Forced Sale Right that the purchasing Member failed to consummate, then institute the Buy-Sell Right or Forced Sale Right itself; or (iv) pursue any other right or remedy at law or in equity (it being agreed the non-purchasing Member shall have the right to compel specific performance) against the purchasing Member. If the non-purchasing Member shall not have used one or more of the options described in the preceding clauses (i) through (iv) of this Section 11.4 within six (6) months after the default by the purchasing Member, then the non-purchasing Member shall be deemed to have elected option (ii); provided, however, that either Member shall thereafter be entitled to exercise a new Buy-Sell Right or Forced Sale Right, subject to the provisions of Section 11.1 or 11.2, as applicable. Except as provided in the preceding two sentences, the rights and remedies provided herein are cumulative, and the use of any one right or remedy by a Member shall not preclude or waive its right to use any or all of the other rights or remedies available to it.

        11.5 Default by Non-purchasing Member. In the event the non-purchasing Member shall default in its or their obligations to consummate the purchase contemplated by this Article XI, then the purchasing Member may (i) abandon the purchase and sale contemplated by this Article XI and proceed as if the Buy-Sell Right or Forced Sale Right or Put Right had not been exercised, (ii) enforce specific performance of the sale contemplated by this Article XI or (iii) exercise any remedy to which it may be entitled at law or in equity.

        11.6 Liability After Closing. From and after the consummation of any purchase and sale pursuant to this Article XI, (i) the non-purchasing Member or its Affiliates shall have no obligation or liability (except for title warranties) with respect to matters pertaining to the Company arising on and after the Closing Date, and the purchasing Member shall assume and be responsible for any such liabilities or obligations arising on and after the Closing Date as well as any obligations of the non-purchasing Member’s Affiliate under any indemnity or guaranty relating to the Projects as to which the purchasing Member had written notice at the time of its decision to purchase, and (ii) the purchasing Member shall have no obligation or liability with respect to matters pertaining to the Interest so purchased arising prior to the Closing Date. The non-purchasing Member shall indemnify the purchasing Member from and against all of the non-purchasing Member’s obligations under this Agreement arising prior to the Closing with respect to the Interests being conveyed. The purchasing Member shall indemnify the non-purchasing Member from and against all such obligations arising on and after the Closing with respect to the Interests being conveyed.

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        11.7 Limitation on Exercise. Notwithstanding anything herein to the contrary, no Forced Sale Right may be exercised until all periods for making elections and performing obligations under any previous Buy-Sell Right pursuant to Section 11.1 have elapsed (except for remedies described in Sections 11.4 and 11.5 above in the event of a default). In addition, no Buy-Sell Right may be exercised for a period of 90 days after the date a Forced Sale Notice is given pursuant to Section 11.2. Following the expiration of such 90-day period, either Member may exercise a Buy-Sell Right, provided, however, that no such exercise shall be permitted (i) if prior to such exercise of a Buy-Sell Right, a bona fide offer to purchase the Projects on terms at least as favorable as contained in the Forced Sale Notice has been delivered to the Members and thereafter a contract is produced within 60 days from the date of such bona fide offer or (ii) following the Election by a Receiving Member under Section 11.2(c)(ii) (except as provided in Section 11.4).

        11.8 No Assignment. Neither Member may assign its rights and obligations under Section 11.1 or Section 11.2 to any third party (other than a successor to such Member’s interest), provided, however, that a Member may freely assign its right to receive a conveyance of all or part of an Interest by delivering notice of such assignment to the other Member.

        11.9 Release of Liability. Subject to Section 7.1 of this Agreement, in the event any Member shall sell its entire Interest (other than in a sale of the Projects or the entire Interests of all Members), in compliance with the provisions of this Agreement without retaining any interest therein, directly or indirectly (unless such sale was made pursuant to Article VII), then the Selling Member shall be relieved of any further liability arising hereunder for events occurring from and after the date of such Transfer, and such Member and its Affiliates, as applicable, shall be released from any written indemnity or guaranty obligations relating to the Projects as to which the purchasing Member had notice at the time of its decision to purchase.

ARTICLE XII

DEFAULTING EVENT REMEDIES

        12.1 Election to Purchase Defaulting Member’s Interest. In the event that a Member becomes a Defaulting Member (or purposes of this Article XII only, the term “Defaulting Member” shall refer only to a Member who committed a Defaulting Event or a Monetary Default under Article III) the non-defaulting Member shall have the option to purchase the Interest of the Defaulting Member in the Company, with any such election to be made by the non-defaulting Member giving notice of such election to the Defaulting Member within 30 days after the non-defaulting Member first discovers that the other Member has become a Defaulting Member (and so notifies the Defaulting Member in writing).

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        12.2 Purchase Price of Defaulting Member’s Interest. If either Member becomes a Defaulting Member, in the event that the non-defaulting Member elects under Section 12.1 to purchase the Defaulting Member’s Interest, the purchase price of such Interest shall be ninety percent (90.0%) of the amount that the Defaulting Member would have received under Section 11.1 if the Price equaled the fair market value of the Projects (taking into account the adjustments set forth in the first partial sentence of Section 11.3(i)); provided, however, that the non-defaulting Member shall receive a credit against such purchase price in the amount of any delinquent Capital Contributions due from the Defaulting Member and any expenses of closing such purchase. In the event that the non-defaulting Member elects under Section 12.1 to purchase the Defaulting Member’s Interest, then the Company shall not make any distributions on or before the closing of the purchase of such Interest, and any such distributions which would have been made to the Defaulting Member shall be distributed to the non-defaulting Member on or after the closing. In the event the Members are unable to agree upon the fair market value of the Projects within thirty (30) days following the notice given by the non-defaulting Member pursuant to Section 12.1, then FMV of the Projects shall be determined. The closing shall be held on a date selected by the non-defaulting Member within 10 business days after the purchase price of the Defaulting Member’s Interest has been determined.

        12.3 Suspension of Rights. In addition to all other remedies provided hereunder, except as expressly provided in the Act and except for the Defaulting Member Approval Rights, whenever the vote, consent or decision of the taking of any action of a Member or of the Members is required or permitted pursuant to this Agreement, any Defaulting Member (and its successors) shall not be entitled to participate in such vote or consent, or to make such decision or take such action, and such vote, consent or decision shall be tabulated or made as if such Defaulting Member (and its successors) were not a Member.

        12.4 Grant of Security Interest.

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        12.5 Remedies Exclusive. The option of the non-defaulting Member to purchase the Interest of the Defaulting Member under Section 12.1 and any rights or remedies which the non-defaulting Member or the Company may have under Section 3.5, Section 12.3 and Section 12.4 hereof against or with respect to such Defaulting Member shall be the exclusive remedy of the non-defaulting Member under this Article XII.

ARTICLE XIII

MISCELLANEOUS PROVISIONS

        13.1 Entire Contract. This Agreement and its exhibits shall constitute the entire contract between the parties and shall supersede all prior agreements and understandings, and there are no other or further agreements outstanding not specifically mentioned herein; provided, however, that the parties may by agreement amend and supplement this Agreement in writing from time to time pursuant to Section 13.6 hereof.

        13.2 Notices. Any notice or demand provided for in or permitted under this Agreement shall be made in writing, and may be given or served by (i) delivering the same in person or by facsimile transmission to the party to be notified, or (ii) by depositing same with a reputable overnight courier service. Notice given in any manner shall be effective only if and when received by the party to be notified (or service is refused), but if notice is not received by 5:00 p.m. local time on a business day, such notice will be effective the next business day. For the purpose of notice, the address of the Members shall be, until changed as hereinafter provided, as follows:

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or to such other address as each Member may specify in a written notice to the other Member in accordance with this Section 13.2.

        Each Member shall have the right from time to time and at any time to change its respective address and each shall have the right to specify as its address any other address by at least fifteen (15) days’ written notice to the other Member. Each Member shall have the right from time to time to specify an additional party to whom notice hereunder must be given by delivering to the other party fifteen (15) days’ written notice thereof setting forth the address of such additional party; provided, however, that no Member shall have the right to designate more than one (1) such additional party. Notice required to be delivered hereunder to either Member shall not be deemed to be effective until the additional parties, if any, designated by such Member have been given notice in a manner deemed effective pursuant to the terms of this Section 13.2.

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        13.3 Nature of Interest. The Interest of the Members in the Company is personal property.

        13.4 Execution in Counterparts. This Agreement may be executed in multiple counterparts, each to constitute an original, but all in the aggregate to constitute one agreement as executed.

        13.5 Severability. In case any one or more of the provisions contained in this Agreement shall be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.

        13.6 Modification, Termination and Waiver. This Agreement may be modified, terminated or waived only by a writing signed by all of the Members.

        13.7 Waivers. The failure of any party to seek redress for violation of or to insist upon the strict performance of any covenant or condition of this Agreement shall not prevent a subsequent act, which would have originally constituted a violation, from having the effect of an original violation.

        13.8 Headings. The headings in this Agreement are inserted for convenience only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Agreement or any provision hereof.

        13.9 Rights and Remedies Cumulative. The rights and remedies provided by this Agreement are cumulative and, except as otherwise provided herein, the use of any one right or remedy by any party shall not preclude or waive its right to use any or all other remedies. Except as otherwise provided herein, said rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance, or otherwise.

        13.10 Waiver of Right to Partition. Each of the parties hereto irrevocably waives during the term of the Company any right that it may have to maintain any action for partition with respect to Company property.

        13.11 Heirs, Successors, and Assigns. Each and all of the covenants, terms, provisions, and agreements herein contained shall be binding upon and inure to the benefit of the parties hereto and, to the extent permitted by this Agreement, their respective heirs, legal representatives, successors, and assigns.

        13.12 Governing Law. THIS AGREEMENT AND THE RIGHTS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.

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        13.13 Estoppel Certificates. Within fifteen (15) days following the request of any Member, each of the other Members shall execute estoppel certificates addressed to such parties as the requesting Member may specify, certifying to such Member’s actual knowledge without inquiry as to such facts, if true, with respect to this Agreement and the Company as the requesting Member may reasonably request.

        13.14 Further Assurances. Each Member agrees to execute, acknowledge, deliver, file, record and publish such further instruments and documents, and do all such other acts and things as may be required by law or as may be required to carry out the intent and purposes of this Agreement.

        13.15 Attorneys’ Fees. If the Company or any Member commences an action against any Member by reason of the breach of this Agreement or the failure to comply with the terms hereof, the prevailing party shall be entitled to reimbursement for its reasonable attorneys’ fees and costs as fixed by the court.

        13.16 Captions. All titles or captions contained in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit, extend, or describe the scope of this Agreement or the intent of any provision in this Agreement.

        13.17 Pronouns. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, and neuter, singular and plural, as the identity of the party or parties may require.

        13.18 Recalculation of Interest. If any applicable law is ever judicially interpreted so as to deem any distribution, contribution, payment or other amount received by a Member or the Company under this Agreement as interest and so as to render any such amount in excess of the maximum rate or amount of interest permitted by applicable law, then it is the express intent of the Members and the Company that all amounts in excess of the highest lawful rate or amount theretofore collected be credited against any other distributions, contributions, payments or other amounts to be paid by the recipient of the excess amount or refunded to the appropriate Person, and the provisions of this Agreement immediately be deemed reformed, without the necessity of the execution of any new document, so as to comply with the applicable law, but so as to permit the payment of the fullest amount otherwise required hereunder. All sums paid or agreed to be paid that are judicially determined to be interest shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread throughout the term of such obligation so that the rate or amount of interest on account of such obligation does not exceed the maximum rate or amount of interest permitted under applicable law.

        13.19 Confidentiality; Publicity. The Members agree that no Member shall issue any press release concerning formation of the Company or otherwise publicize the terms of this Agreement or the proposed terms of the acquisition by the Company of any assets, without the approval of the Members except as such publicity may be made in the course of normal reporting practices by a Member to its partners, shareholders or members or as otherwise required by law. Furthermore, the Members acknowledge their mutual desire to limit disclosure of the terms of this Agreement, any other agreements entered into in connection with the transactions contemplated hereby, and the parties shall use their good faith efforts to prevent disclosure thereof absent a reasonable business purpose for doing so (such as, by way of example and not by limitation, to demonstrate the financial strength of the Members to potential tenants); provided, however, that any Member may make disclosures if required to do so by applicable law or court order and to such parties attorneys, accountants and other professionals and to potential purchasers and lenders, who have a reasonable need to know such information. Neither Member shall at any time, either during or after the term of this Agreement, use for its own benefit and account (except as provided herein) or for the benefit and account of any other person or entity any tenant lists or financial information relating to the Projects.

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        13.20 Waiver of Jury Trial. EACH OF THE MEMBERS HEREBY WAIVES TRIAL BY JURY IN ANY ACTION ARISING OUT OF MATTERS RELATED TO THIS AGREEMENT, WHICH WAIVER IS INFORMED AND VOLUNTARY.

        13.21 General Exculpation. Notwithstanding any provision hereof to the contrary, in no circumstances shall a member, shareholder, limited partner, director, officer, employee or agent (“Special Party”) of a Member or of a Special Party of a Member hereto be personally liable for any of the obligations of Member under this Agreement except to the extent, if any, provided in any separate agreement now or hereafter executed and delivered by such Special Party nor shall any Special Party of a Member be liable to any other Member (the other Members herein agreeing to indemnify such Special Party from and against any such liability) for any act or omission, negligent, tortious or otherwise, of such Special Party unless, in each case, the same results from fraud, Gross Negligence or willful or intentional misconduct by such Special Party.

        13.22 No Third-Party Beneficiaries. The provisions of this Agreement are for the exclusive benefit of the Members and their respective successors and permitted assigns and are not for the benefit of any other person or entity (including, without limitation, any tenants or purchasers of interests in the Projects).

        13.23 No Consequential Damages. Notwithstanding anything herein to the contrary, in no event shall any Member be liable to any other Member for any special, consequential or punitive damages, other than those damages payable or paid to third parties.

        13.24 Exhibits. All Exhibits attached hereto are made a part hereof by this reference.

        13.25 Days. Unless otherwise stated, a day shall be deemed to mean a calendar day and a “business day” shall mean a day which is not a Saturday, Sunday or a holiday on which national banks in Montana, are closed for business. In the event the date for performance of any obligation hereunder falls on a day which is not a business day, then the date for performance hereunder shall be extended until the next business day.

        13.26 Dispute Resolution. The Members agree to follow the dispute resolution procedures set forth in Schedule 13.26 attached hereto when applicable.

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        IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and year first above written.

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EXHIBIT A

INITIAL PROJECT LAND DESCRIPTION - 20.372 Acre Parcel

A TRACT OF LAND, SITUATED, LYING, AND BEING IN THE SOUTH HALF OF THE NORTHWEST QUARTER AND IN THE NORTH HALF OF THE SOUTHWEST QUARTER OF SECTION 1, TOWNSHIP 31 NORTH, RANGE 22 WEST, P.M.,M., FLATHEAD COUNTY, MONTANA, AND MORE PARTICULARLY DESCRIBED AS FOLLOWS TO WIT:

Commencing at the northeast corner of the Northwest Quarter of the Southwest Quarter of Section 1, Township 31 North, Range 22 West, P.M.,M., Flathead County, Montana; Thence along the east boundary of said NW1/4SW1/4 S00°41’04”W 751.59 feet to a found iron pin and THE TRUE POINT OF BEGINNING OF THE TRACT OF LAND HEREIN DESCRIBED: Thence N56°54’13”W 188.45 feet to a set iron pin; Thence N21°24’36”W 63.70 feet to a set iron pin; Thence N05°35’57”W 441.07 feet to a set iron pin; Thence N14°50’11”E 175.14 feet to a set iron pin; Thence N09°42’30”W 224.62 feet to a found iron pin; Thence N36°34’23”E 60.00 feet to a found iron pin on a 210.00 foot radius curve, concave southwesterly (radial bearing S36°34’23”W); Thence southeasterly along said curve through a central angle of 22°41’32” an arc length of 83.17 feet to a set iron pin and the P.R.C. of a 100.00 foot radius curve, concave northwesterly (radial bearing N59°15’55”E); Thence southeasterly and northeasterly along said curve through a central angle of 138°45’55” an arc length of 242.19 feet to a set iron pin; Thence N10°30’00”E 39.47 feet to a set iron pin and the P.C. of a 330.00 foot radius curve, concave southeasterly, having a central angle of 29°50’00”; Thence along an arc length of 171.83 feet to a set iron pin; Thence N40°20’00”E 73.57 feet to a set iron pin and the P.C. of a 470.00 foot radius curve, concave northwesterly, having a central angle of 30°50’00”; Thence along an arc length of 252.93 feet to a set iron pin; Thence N09°30’00”E 89.75 feet to a set iron pin; Thence N87°24’47”E 347.58 feet to a set iron pin on a 190.00 foot radius curve, concave southeasterly (radial bearing S49°47’49”E); Thence southwesterly along said curve through a central angle of 34°40’57” an arc length of 115.01 feet to a set iron pin and the P.R.C. of a 135.00 foot radius reverse curve, concave northwesterly (radial bearing N84°28’46”W); Thence southwesterly along said curve through a central angle of 55°20’14” an arc length of 130.39 feet to a set iron pin and the P.R.C. of a 240.00 foot radius reverse curve, concave southeasterly (radial bearing S29°08’32”E); Thence southwesterly along said curve through a central angle of 56°16’02” an arc length of 235.69 feet to a set iron pin and the P.R.C. of a 260.00 foot radius reverse curve, concave northwesterly (radial bearing N85°24’35”W); Thence southwesterly along said curve through a central angle of 29°24’35” an arc length of 133.46 feet to a set iron pin; Thence S34°00’00”W 178.77 feet to a set iron pin and the P.C. of a 130.00 foot radius curve, concave southeasterly, having a central angle of 35°48’52”; Thence along an arc length of 81.26 feet to a set iron pin; Thence S74°49’15”E 369.78 feet to a found iron pin; Thence S00°42’50”W 752.01 feet to a found iron pin; Thence N89°18’14”W 600.07 feet to the point of beginning and containing approximately 20.372 ACRES.

Tract 1, Certificate of Survey No. _____________, records of Flathead County, Montana.

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EXHIBIT B

FAIR MARKET VALUE PROCEDURE

        ”Fair Market Value” or FMV shall mean the fair market value of the Projects determined pursuant to the following appraisal or arbitration procedure:

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B-2

Schedule 13.26

Limited Liability Company Agreement
(Big Mountain)
Dispute Resolution Procedures

        1. Conference. Any party may from time to time call a special meeting (which may be conducted by telephone) for the resolution of disputes pursuant to the foregoing Agreement. Such meeting shall be held at the offices of BMDC in Flathead County, Montana within fifteen (15) business days of a written request therefor, which request shall specify in reasonable detail the nature of the dispute to be resolved at such meeting. The meeting shall be attended by representatives of the parties and may be attended by any other person that may be affected in any material respect by the resolution of such disputes.

        2. Mediation. If the dispute has not been resolved within five (5) Business Days after the special meeting has been held, a mediator, mutually acceptable to the parties and experienced in development and project operations matters shall be appointed. The cost of the mediator shall be shared by the parties. The mediator shall be given any written statements of the parties and may review the site and any relevant documents. The mediator shall call a meeting in Flathead County, Montana of the parties affected by such dispute within ten (10) Business Days after his/her appointment, which meeting shall be attended (in person or by telephone) by representatives of such parties to settle such dispute. During such ten (10) Business Days period, the mediator may meet with the representatives of the affected parties separately.

        3. Mediation Process. No minutes shall be kept and the comments and/or findings of the mediator, together with any written statements prepared, shall be non-binding, confidential and without prejudice to the rights of and remedies of any party. The entire mediation process shall be completed within twenty (20) Business Days of the date upon which the special meeting referred to in paragraph 2 is held, unless all of the parties involved in the dispute agree otherwise in writing. If the dispute is settled through the mediation process, the decision will be implemented by written agreement signed by all the parties involved.

        4. Arbitration. Any controversy or dispute not resolved through non-binding mediation shall be settled by binding arbitration. Either party may initiate arbitration by giving written notice to the other party after exhausting the mediation procedures referred to above, or if the parties in general do not mutually agree on a mediator as provided in paragraph 2 above. The notice shall state the nature of the claim or dispute, the amount involved, if any, and the remedy sought.

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        5. Arbitrators.

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        6. Discovery.

        7. The Proceedings.

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        8. The Award.

        9. Communication with Arbitrators; Service.

        10. Fees and Expenses.

        The parties shall share equally the cost of the arbitration proceedings, including the fees and expenses of the arbitrators including, without limitation, any attorneys’ fees incurred by the Board and the cost of the stenographic record.

        11. Confidentiality, Protective Orders.

        To the extent reasonably possible under the applicable circumstances, all aspects of the arbitration shall be confidential, and the parties and arbitrators shall not disclose to others, or permit disclosure of, any information related to the proceedings, including but not limited to discovery, testimony and other evidence, briefs and the award.

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