OPERATING AGREEMENT
OF
MOULIN A VENT, LLC
Amended as of January 15, 2007
TABLE OF CONTENTS:
OPERATING AGREEMENT –
EXHIBIT A – Membership Register
EXHBIT B – House Rules
OPERATING AGREEMENT
OF
Moulin a Vent, L.L.C.
an Oregon Limited Liability Company
THIS OPERATING AGREEMENT of Moulin a Vent LLC is made and
entered into effective as of this 16th day of March 2006, by and among
the Members, with names and addresses set forth on Exhibit A
attached to this Operating Agreement, and supercedes the prior
Operating Agreement dated June 2005
WHEREAS, Moulin a Vent LLC was formed as an Oregon limited
liability company under the Oregon Limited Liability Company Act (as
amended from time to time) by filing the Articles of Organization with
the Oregon Secretary of State on June 10, 2004; and,
WHEREAS, the Members formed the Company to serve as a vehicle
for a joint venture by and among the Members to own and manage real
property in accordance with the terms and conditions of the Agreement;
and
WHEREAS, the Members desire to set out fully their respective rights,
obligations and duties regarding the Company and its assets and
liabilities;
NOW, THEREFORE, in consideration of the mutual covenants
expressed herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties
hereby covenant and agree as follows:
ARTICLE 1
DEFINITIONS
When used in this Agreement, capitalized terms not otherwise defined
will have the meanings stated below; further, to the extent such
definitions may differ from those contained in the Oregon Limited
Liability Company Act, the definitions contained herein will control:
Agreement. This Operating Agreement as originally executed and as
amended from time to time.
Allocations. The allocations of the Company’s Net Income, Net Loss
and other items of income loss, gain or credit made for federal income
tax purposes and shown in the Company’s federal income tax return.
Annual Operating Dues. Each Member will be responsible for the
payment of Annual Operating Dues, which will be in an amount
determined necessary to provide the proposed Operating Budget as
presented at each annual meeting pursuant to Article 5 herein or at the
beginning of each calendar year.
Articles. The Articles of Organization of the Company as filed with the
Secretary of the State of Oregon as the same may be amended or
restated from time to time.
Bankruptcy. Institution of any proceedings under federal or state laws
for relief of debtors, including: the filing of a voluntary or involuntary
petition under the federal bankruptcy law; an adjudication as insolvent
or bankrupt; an assignment of property for the benefit of creditors; the
appointment of a receiver, trustee or conservator of any substantial
portion of assets; or the seizure by a sheriff, receiver, trustee or
conservator of any substantial portion of assets, accompanied, in the
case of involuntary actions, by failure to obtain the dismissal of the
proceedings or the removal of a conservator, receiver or trustee within
60 days.
Booking Deadline. The deadline for booking a Member’s upcoming
Non-Prime Time is 11:59 p.m. Pacific Standard Time (PST) on July 1st.;
The deadline for booking a Member’s upcoming Prime Time is 11:59
pm PST on December 15 .
Booking Week. A seven day period commencing on a Thursday at
3:00 pm and ending the next Wednesday at 10:00 am.
Calendar Coordinator. A Person designated by the Members or the
Manager(s) to manage the allocation of time between the Members.
Capital Account. As defined in Section 3.9 of this Agreement.
Code.
The Internal Revenue Code of 1986, as amended, or
corresponding provisions of subsequent revenue laws.
Company. Moulin a Vent, LLC, the limited liability company formed
under the Oregon Limited Liability Company Act.
Company Property. Any property owned by the Company.
Contribution. Cash or property contributed to the capital of the
Company and credited to the Capital Account of a Person who is or
who becomes a Member or Transferee.
Controlling Interest. An individual who owns or controls directly or
indirectly a controlling interest in the Company.
Moulin a Vent. The residence located at 13 Rue Moulin a Vent,
Quarante France that the Company currently owns, operates and
manages, or any replacement residence.
Distributions. Cash or property distributed to Members arising from
their interests in the Company, other than payments to Members for
services or as repayment of loans.
Economic Rights The right of the holder thereof to share in the profits,
losses, capital, and in the distribution and use of Company property
pursuant to the Act, the Articles, and this agreement.
Event of Dissolution. As defined in Section 9.2 of this Agreement.
French Property Manager. A Person designated by the Manager(s)
to assist the Managers with the day-to-day operation and maintenance
of the Quarante House.
Guardian. The Person(s) who has the legal right to manage the
money and business affairs of an incapacitated Member. If there has
been no court appointment of a Person to manage the money and legal
affairs of an incapacitated Member, the Guardian shall be deemed to
be (i) the spouse of the incapacitated Member, or, if there is no spouse
or if the spouse is unwilling or unable to act in such capacity, then (ii) a
court-appointed guardian of the Member, or (iii) the primary caregiver
of such incapacitated Member, or, if there is no primary caregiver or
such caregiver is unwilling or unable to act in such capacity, then (iv)
such member as legal counsel to the Company may deem appropriate
in light of all existing facts and circumstances.
Incapacity. “Incapacity means the inability of a member to manage
effectively his or her own financial affairs, whether by reason of illness,
age, disappearance, or any other cause. Such inability will be deemed
to exist if a Guardian of such person or a Conservator of the estate of
such person is appointed. A determination that a member is
incapacitated may be made by any means deemed by the family
members or other person or persons (but not members or managers of
the LLC) making the determination to be adequate for this member,
including but not limited to consultation with the family members, the
professional advisors, and the personal physicians of the person with
respect to whom the determination is being made.
The determination that a person is incapacitated will be in writing
and signed by the person or persons making the determination.
No member or manager who in good faith relies on such a
determination will be liable for any acts or omissions resulting from the
determination.
Invested Capital. The money and property contributed to the
Company as capital including both initial Contribution and later
Contribution.
Manager. The person or persons named or selected as the manager
or managers of the Company in accordance with the Article in this
Agreement entitled “Management” and those persons who succeed to
the position of manager of the Company, who shall be referred to
collectively as the “Manager.”
Majority. More than fifty percent (50%) of the Units owned by
Members.
Management Rights. The right of a Member to participate in the
management of the Company, including the right to information, the
right to vote, and the right to consent to or approve actions of the
Members. Each Unit owned by an individual Member or by a Family
carries with it one vote.
Member. Each Individual or Individuals that: (a) acquires a Unit or
Units from the Company and executes this Agreement, or a
counterpart; or (b) acquires a Unit or Units directly from a Member and
who is subsequently admitted as a Member as provided herein.
Members Action A written action submitted by the Managers to the
members for review and approval without a formal meeting. Reference
Article 3.13.
Membership Interest. A Member’s entire interest in the Company,
including such Member’s Economic Rights and Management Rights.
Member Use Rights. The right of an individual Member or a Family
Member to use Moulin a Vent in accordance with the provisions of this
Agreement.
Member Use Year. The twelve month period beginning November 1st
of a calendar year and ending October 31st of the following calendar
year. The first full Member Use Year will begin November 1, 2005 and
end October 31, 2006. The first six months are defined as “Non-Prime
Time”(Low Season), and the second six months are defined as “Prime
Time” (High Season).
Minimum Gain. The “partnership minimum gain” as defined in
Treasury Regulation section 1.704-1(b) and 1.704-2(d).
Net Book Value. The fair market value of the assets on the date of
contribution less any associated debt assumed by the Company,
reduced by any amounts allowable as depreciation, amortization or
other reserves as the Manager may determine.
Net Income and Net Loss. The net income or net loss of the
Company for federal income tax purposes, as determined by sound
principles of tax accounting as applied by the Company’s accountants.
Net Cash from Operations. Gross revenues generated by the
Company’s property and business operations and miscellaneous
sources (other than Net Proceeds From Sales or refinancings), less
cash expenditures, fees for services to the Manager or any affiliate of
the Manager, debt service, operating expenses and amounts set aside
for reserves.
Net Cash from Sales or Refinancing. Proceeds from: a) a sale or
refinancing of the Company’s assets after deducting expenses relating
to the transaction and retention of reasonable reserves; or b) net
condemnation proceeds or insurance proceeds not used to rebuild or
replace the affected property.
Percentage Interest. That ratio which a Person’s individual Capital
Account bears to the total of all Capital Accounts as shown on the
books and records of the Company, and as modified from time to time
under provisions of this Agreement.
Person. Any individual or entity (as entity is defined in Section 63.001
of the Oregon Limited liability Company Act), and the heirs, executors,
administrators, legal representatives, successors and assigns of such
“Person” where the context so permits.
Successor. A successor to or holder of a Member’s interest after the
Member’s death or incapacity.
Transferee. A Transferee is the successor in interest to a Member’s
interest due to the death of the member or the incapacity of the
Member. A Transferee will succeed to a Member’s interest if the
transfer occurred by reason of the death or incapacity of the member. A
bankruptcy trustee is not a transferee for purposes of this Operating
Agreement.
Treasury Reg.
The proposed, temporary and final regulations
promulgated under the Code in effect as of the date of filing the Articles
and the corresponding sections of any regulations subsequently issued
that amend or supersede such regulations.
ARTICLE 2
FORMATION
2.1
Nature of Business. The Company has been formed to own,
manage and operate Moulin a Vent, LLC, together with all other
property contributed to or acquired by the Company. To this end, the
Company will: a) provide a means for centralized management of
Moulin a Vent, LLC; b) provide a mechanism for the resolution of
disputes other than by way of litigation; and c) provide a mechanism for
the sale or exchange of Moulin a Vent shares or interests in the
company. In addition, the Company may engage in any lawful
business permitted by the Act or the laws of any jurisdiction in which
the Company may do business and will have the authority to do all
things necessary and/or convenient to accomplish its purpose and
operate its business.
2.2 Defects as to Formalities. A failure to observe any formalities or
requirements of this Agreement, the Articles or the Act will not be
grounds for imposing personal liability on the Members for liabilities of
the Company.
2.3 No Partnership Intended for Non-Tax Purposes. The Members
have formed the Company as a Limited Liability Company under the
Act, and expressly do not intend hereby to form: a) a partnership under
either the Oregon Uniform Partnership Act or the Oregon Uniform
Limited Partnership Act: or b) a corporation under the Oregon Business
Corporation Act. The Members do not intend to be partners one to
another, or partners as to any third party.
2.4
Title to Property. All of the Company’s property shall be owned
by the Company as an entity, and no Member shall have any
ownership interest in such property in the Member’s Individual name or
right, and each Member’s interest in the Company shall be personal
property for all purposes. Except as otherwise provided in this
Agreement, the Company shall hold all of the Company’s property in
the name of the Company and not in the name or names of any
Member or Members. A copy of the LLC ownership documentation
shall be provided to all members.
ARTICLE 3
MEMBERS
3.1 Member Reports. The initial value of the Contribution to capital
and initial percentage interest in the Company with respect to each
Member or Transferee will be determined at the time such Person was
admitted and shall be recorded in the permanent books and records of
the Company. Upon the request of any Member or Transferee, the
Company will supply a report showing: a) such initial value(s) together
with any and all subsequent Contributions, adjustments and all other
credits and debits to such Person’s account as of the close of the fiscal
year immediately preceding such request; and b) the calculation of
such Person’s Percentage Interest in the Company at the close of such
fiscal year.
3.2 No Authority to Act. No Member shall have the power or
authority to bind the Company, unless such Member is a Manager and
is acting in the capacity of Manager.
3.3
Limitation Of Liability. Each Member’s liability will be limited as
set forth in this Agreement, the Act and other applicable law. A Member
will not be personally liable, merely as a Member, for any debts or
losses of the Company beyond the Member’s respective contribution.
3.4
Other Business of Members.
Any Member may engage
independently or with others in other business and investment ventures
of every nature and description and will have no obligation to account
to the Company for such business or investments or for a Member’s
business or investment opportunities.
3.5
Additional Members. A Person will be admitted as an Additional
Member only upon satisfaction of all the following requirements:
(a)
No current Member having purchased the available share
under the Right of First Refusal provision Article 10.3 contained in this
Agreement.
(b)
A Member’s Action recommending the Person for
admission as an Additional Member.
(c)
Consent of the Members to the Person’s admission by
the favorable Majority vote.
(d) Payment in full of the agreed upon share price.
3.6
Additional Contributions.
a. (a) $10,000.00 or less:
Upon the call of the Manager for additional Capital
Contributions totaling $10,000.00 or less, each of the Members
and Transferees will make an additional Capital Contribution to
the Company on a pro rata basis in accordance with such
Person’s Percentage Interest relative to the aggregate of all
Percentage Interests in the Company.
(b)
Over $10,000.00:
Upon the call of the Manager for additional capital Contributions
totaling more than $10,000.00, each of the Members and Transferees
will have the opportunity, but not the obligation, to make an additional
capital Contribution to the Company on a pro rata basis in accordance
with such Person’s Percentage Interest relative to the aggregate of all
Percentage Interests. If any Person elects to not contribute or
contributes less than such Person’s pro rata share, any or all of the
Person(s) who did elect to contribute their full pro rata share may also
elect to contribute the remaining portion of the capital Contribution
called for by the Manager. If more than one so elects, each will
contribute a pro rata share based on the Percentage Interest of each
compared to the aggregate of the Percentage Interests of all Persons so
electing or upon any other basis upon which they may unanimously
agree.
(c)
The Percentage Interests of all Members and
Transferees will be adjusted accordingly for such additional
Contributions.
(d)
At any meeting held as provided in Section 3.10 of
this Agreement, or by written action without a meeting as provided in
Section 3.13 of this Agreement, the Members may, by majority vote,
reject any call for additional Contributions by the Manager or reduce
the amount called for.
3.7
Loans. Any Member may at any time make or cause a
loan to be made to the Company in any amount and on those terms on
which the Company and the Members agree.
3.8
No Interest on Capital Contributions. No interest will be
paid on capital contributions.
3.9
Capital Accounts.
An individual Capital Account will be
established and maintained with respect to each Member’s interest.
The initial Capital Account balance for each Member will be the amount
of initial capital contributions made by each Member under Section 3.1
above.
The Capital Account of each Member will be increased to reflect:
(i) such Member’s cash contributions; and (ii) such Member’s share of
all profits of the Company, including any income exempt from federal
income tax.
The Capital Account of each Member will be reduced to reflect:
(i) the amount of money and the fair market value of property
distributed to such Member (net of liabilities secured by distributed
property that the Member is considered to assume or take subject to
under the Internal Revenue Code Section 752); (ii) such Member’s
share of non-capitalized expenditures not deductible by the Company
in computing its taxable income as determined under the Internal
Revenue Code Section 705(a)(2)(B); and (iii) such Member’s share of
losses of the Company.
Capital Accounts will be maintained in accordance with federal
income tax accounting principles as set forth in Treasury Reg. Section
1.704-a(b)(2)(iv) or any successor provision.
3.10 Meeting. A Meeting of the Members, for any purpose or
purposes, including but not limited to the Members’ Annual Meeting,
may be called by a minimum of two Members. A quorum at a meeting
(which includes but is not limited to meetings where Members are
personally present or a Member’s participation pursuant to Section 3.14
below) consists of a Majority of the current Members. Unless a greater
vote is required by the Act or this Agreement, any action taken by a
Majority on any proper business matter brought before the meeting is
the act of the Members.
3.11 Notice of Meetings. Written notice of a Meeting of the
Members stating the place, day and hour of the meeting will be given to
each Member no less than 60 days before the date of the meeting.
Prior to setting the date, time and place of the meeting, the Member
calling the meeting will give consideration to the travel needs of the
other Members and will make their best efforts to accommodate
various travel needs. This notice shall be given as provided by Section
13.4 of this Agreement and notice will be given by or at the direction of
the Members calling the meeting. The record date and time for
determining those Members entitled to have notice of and participate in
the meeting will be 12:01 a.m. on the last day on which notice could be
given hereunder. The notice will set forth in general terms the
purpose(s) for which the meeting is being called. All meetings will be a
general meetings and action may be taken on any proper business
matter brought before the Members at a meeting.
3.12 Meeting of All Members. Regardless of whether a
meeting may have been properly called and the Members properly
notified, if all the Members are in attendance and no Member raises an
objection to the conduct of business at the meeting immediately upon
its being called to order, any objection is waived and action may be
taken by the Members on any proper business matter brought before
the Members at the meeting.
3.13 Action without Meeting. Any action required or permitted
to be taken at a meeting of Members may be taken without a meeting if
the action is stated in a written “Members’ Action” upon which each of
the Members will have marked their votes “for” or “against” the action
and will have dated and signed the Members’ Action. All Members
must sign a Members’ Action in order for a Members’ Action to be
effective. The record date for determining those Members entitled to
participate in a Members’ Action will be the date the first Member signs
the Members’ Action. Unless it specifies a different date, the effective
date of a Members’ Action will be the date on which the last Member
signs. The signed copy of the Members’ Action will be delivered to the
Company, filed with the minutes of Members’ meetings and copies sent
to each Member. A Members’ Action may be signed in two or more
counterparts; in which event each signed counterpart will be filed with
the minutes of Members’ meetings and together they will constituent a
single Members’ Action. Unless a greater vote is required by the act or
this Agreement, any Members’ Action approved by a Majority is the act
of the members.
3.14 Member Meetings by Telephone and Other Forms of
Electronic Communication Meetings of the Members may be held by,
or may include participants using, conference telephone calls, or by
any other means of communication by which all participants can hear
or e-mail each other simultaneously during the meeting, and such
participation will constitute presence in person at the meeting.
3.15 Voting. Action by the Members will require the favorable
vote of the holders of a Majority of the Percentage Interests in the
company except when a greater number is required for the adoption of
a particular action by the Act, the Articles, or another provision of this
Agreement. A Percentage Interest of a Member must be voted as a
whole and may not be divided. If there is a Member with a Controlling
Interest, an action by the Members will require the vote of at least 50%
of the aggregate of those Percentage Interests not held by the Member
with the Controlling Interest.
3.16 Member Management Rights. Each Member will be
entitled to vote on or consent to any matter submitted to a vote or for
the consent of the Members.
3.17 Required Member Approvals. In addition to matters,
which, by virtue of the Act, the Articles, or other provisions of this
Agreement, may require action by the Members, the following
matters shall also be submitted for action by the Members.
(a)
Fixing the number of Managers and electing Managers
(including the filling of any vacancy).
(b) Setting or adjusting the compensation or benefits of the
Manager;
(c)
Hiring a French Property Manager and setting their
compensation and responsibilities.
(d)
Changing the nature of the business of the Company;
(e)
Extending the statute of limitations for the assessment of
tax deficiencies against Members with respect to adjustments to the
Company’s federal, state, or local tax returns;
(f)
Loaning money or other assets to Managers or Members;
(g)
Admission of Additional and Substitute Members;
(h)
Taking or approving any action or transaction which is
reserved to the Members by the Act, the Articles or this Agreement;
(i)
Amending or restating the Articles;
(j)
Merging the Company with another Entity;
(k)
Dissolving the Company pursuant to this Agreement; or
(l)
Requesting additional capital.
3.18 Membership Register. A current Membership Register
will show the name, address, and Percentage Interest of each Member
and Transferee as reflected by the books. The Manager will maintain
records of the Company. A copy of the Membership Register will be
provided to any Member or Transferee upon request.
Article 4
Village House
4.1
Purpose. For the personal and recreational use of its
Members and Transferees, their families and their invited guest(s), the
Company owns and maintains a village house at 13 Rue Moulin a Vent,
Quarante, France (also referred to as “Moulin a Vent” or the “House”).
4.2
Fiduciaries, Partnerships & Other Entities. If the Member
or Transferee, by virtue of his or her incapacity or death, has a
personal representative, guardian, conservator or other fiduciary, the
member or his or her heirs, or the Transferee, shall be deemed to be
the Member or Transferee for the purposes of this Article 4 in the
absence of specific written instructions to the contrary. If the Member is
a partnership, Limited Liability Company, corporation, or other entity,
the chief executive officer (by whatever title) shall be the individual
person who shall be deemed to be the Member or Transferee for the
purposes of this Article 4.
4.3
Use of the House. Each member shall be entitled to six
(6) free weeks of house time per Member Use Year at such times as
set forth in this Article 4.
4.3.1 Division of Time. Each Unit owned by a Member shall
carry with it the right to use Moulin a Vent (the “House”) free of charge
for three weeks (twenty-one days) during the period from November 1st
through April 30th (“Non-Prime Time”) and three weeks (twenty-one
days) during the period from May 1st through October 31st (“Prime
Time”). A week (Booking Week) consists of seven (7) consecutive day
periods, and is defined as beginning Thursday at 3:00 pm and ending
the last booked Wednesday at 10:00 am.
4.3.2 Allocation of Time. At the first annual meeting, or at a
time otherwise determined by the Manager, each of the Members will
draw a number. There will be a total of eight numbers, from 1 to 8, to
be drawn, regardless of whether or not there are eight Members at the
first annual meeting. The number drawn by a Member will determine
the priority position, in which a Member will thereafter choose his, her
or its Prime Time and Non-Prime Time allocation on a rotating basis for
each Member Use Year. Member’s numbers will rotate annually on
November 1st for the next Member Use Year.
For example, in Member Use Year 2006-2007, the Member who
drew #3 will get third choice/priority position of the days that Member
wants to use the House. The Member who drew #8 will get eighth
choice/priority position of the days that Member wants to use the
House .
The following year, the Member who drew #3 will become # 2
and the Member with # 8 from the previous year will become #7 for
Prime Time Use choice/priority position, with the corresponding shift for
the Non Prime Time choice/priority position.
When a Unit is transferred in accordance with this Agreement
and the Transferee is admitted as a Member, the new Member shall
assume that Unit’s time slot in both Prime Time and Non-Prime Time.
4.3.3 Partial Year and/or Fewer than Eight (8)) Members
Allocations.
It is anticipated that there will be situations where there is not a full
membership and/or there will be a less than complete Member Use
Year after the first annual meeting. In such situations, and in the
absence of agreement by a majority of the then Members, the
Members shall formulate interim rules to cover these situations.
In the absence of agreement as to allocation of a partial Member Use
Year, there shall be an interim lottery that will operate in a manner
similar to the one set forth above. Any such interim lottery will only
apply to a less than full Member Use Year.
In the situation where there are not eight Members at the time of the
first annual meeting or at any time thereafter, some lottery numbers will
not be drawn. Those undrawn lottery numbers will be reserved to be
drawn by Members subsequently acquiring an interest in the House
pursuant to this Agreement. In such an event, this could mean that for
any Member Use Year in which there are fewer than eight Members,
certain numbers will not be used. For example, it is possible that
numbers 1, 3 and 8 were not drawn and thus would not be used. In that
event, number 2 would have first choice for that Member Use Year,
then number 4, etc. , subject to the following provision: If a new
Member acquires an interest in the House pursuant to this Agreement
prior to the Booking Deadline (September 1st for Non-Prime Time and
February 1st for Prime Time), their lottery number will become effective
for the subsequent allocation of time.
However, any new Member acquiring their interest in the House
pursuant to this Agreement after the Booking Deadline for either NonPrime or Prime Time will be limited to choosing from the remaining
blocks of time, regardless of their lottery number position. In this
situation, their lottery number position shall become effective with the
first Booking Deadline following their acquisition of an interest in the
House. For example, if a Member acquires their interest on November
15th, they will be limited to the unallocated time left between November
15th and April 30th of that Member Use Year’s Non-Prime Time.
4.3.4 Submitting Requests for Time.
4.3.4.1 Non-Prime Time. No later than July 1st of each year, each
individual Member and each Family Member shall submit to the
Calendar Coordinator, in writing or by e-mail, that Member’s request
for their annual Non-Prime Time weeks for the Member Use Year
starting November 1st, which will consist of one block of consecutive
time no more than three weeks in length. Members are encouraged to
contact, via e-mail or telephone, other Members with higher priority
positions than themselves to assure that their time request can be
accommodated. Requests made after July 1 are not prioritized.
For one week after July 2nd , up to two (2) weeks of
supplemental unallocated time may be requested by any Member by
contacting the Calendar Coordinator. A Member may request more
than a two week block of unallocated time under this provision except
the Calendar Coordinator will then advise all other Members of the
request. Members are responsible for letting the Calendar Coordinator
know if a Member objects to the request. If the Calendar Coordinator
has not received any Member objections within ten days of providing
such notice, the requesting Member gets the additional requested time.
If any Member objects, the additional time will not be allotted. A
reverse priority will be observed to alleviate conflicting schedules for
supplemental time.
4.3.4.2 Prime Time. No later than December 15 of each year,
each individual Member and each Family Member shall submit to the
Calendar Coordinator, in writing or by e-mail, that Member’s request for
that Member’s Prime Time weeks, which will consist of one block of
consecutive time no more than three weeks in length. Members are
encouraged to contact, via e-mail or telephone, other Members with
higher priority positions than themselves to assure that their time
request can be accommodated.
For one week after December 16, up to two (2) weeks of
unallocated time may be requested by any Member by contacting the
Calendar Coordinator. Priorities shall be in reverse order for
Supplemental time. A Member may request more than a two week
block of unallocated time under this provision provided the Member first
contacts the Calendar Coordinator, who will then advise all other
Members of the request. Members are responsible for promptly letting
the Calendar Coordinator know if a Member objects to the request. If
the Calendar Coordinator has not received any Member objections
within ten days of providing such notice, the requesting Member gets
the additional requested time. If any Member objects, the additional
time will not be allotted. A reverse priority will be observed to alleviate
conflicting schedule requests for supplemental time.
4.3.5 Dispute Resolution. Despite the intent that the provisions
for requesting time as set forth in this Section should remove any
scheduling disputes, it is possible that disputes may arise. If during the
course of scheduling, two or more Members request the same or
overlapping calendar weeks, the Members may agree to share the
property during the overlapping dates or flip a coin to resolve who gets
the disputed time.
The intent of this home share is to provide a pleasurable
experience for all of its Members and to respect the rights and
obligations of the Members. If a complaint arises involving another
Member(s) or their guests, the complaint should be brought promptly to
the Manager(s)’ attention in writing. The Manager(s) will decide on the
subsequent action to be taken, which could include: overlooking the
complaint, requesting specific action by one or more Members in a
cooperative effort to resolve it, or in the absence of resolution, requiring
the Members to participate in mediation.
If these efforts do not produce positive results, it may, at times,
become necessary to institute proceedings to purchase the offending
Member’s share and/or to resell it at the last recorded share sale price.
4.3.6 House Rules. No Member shall use Moulin a Vent. for
any purpose other than as a private dwelling in accordance with the
rules set forth in this Agreement and its Exhibits as they may be
amended from time to time by a Majority vote of the Members. The
Members will develop a “House Rule Book” which will be provided to all
Members.
4.3.7 Member Guests. Members may invite non-members
(“Member Guests”) to share such Member’s Member Use Time.
However, all Member Guests will follow all House Rules. In addition,
the Member allowing use of the House by a Member Guest will be
responsible for all damages, expenses and/or non-insured damage,
including but not limited to insurance deductibles, for damage caused
by the Member Guest.
Members will provide their Member Guests with a copy of the
“House Rule Book” prior to a Guest using the Moulin a Vent House. A
signed acknowledgement of reading will provided to the responsible
Member.
4.3.8 Limitation of Liability. No Member will be liable for injury
or damage to persons or property sustained by any other Member or
Member Guest in and about Moulin a Vent (the House). Each Member
agrees to defend and hold each other Member harmless from any
claim, action, and or judgment for damages to property or injury to
persons suffered or alleged to be suffered on the premises at Moulin a
Vent by any Member and/or that Member’s Member Guests or any
related person or entity, unless caused by a Member’s gross
negligence or intentional act.
ARTICLE 5
BUDGETS AND ACCOUNTS
5.1
Operating Budget. At the annual meeting each year, the
Manager(s) shall prepare a detailed Operating Budget and submit it to
the Members for approval by Majority vote. The Operating Budget shall
cover all the Company obligations relating to the maintenance and
operation of Moulin a Vent, including, without limitation:
1.
2.
3.
4.
5.
Real and /or personal property taxes;
Utilities, including heat, electric, telephone, water, sewer;
Repairs and routine maintenance;
Caretakers;
Property insurance.
5.2
Operating Account. The Manager(s) will establish an
Operating Account for the Company at a bank selected by the
Manager(s). Each Member and Assignee will contribute his or her pro
rata share as a Percentage Interest of the balance of the Operating
Budget to the Operating Account. These annual Member dues are due
on May 30 and become delinquent June 30. In the event that
Operating Funds, or other reserves, are not sufficient to cover the
Operating Budget, the Manager(s) may issue a supplemental
Operating Budget request to all Members payable 30 days after such a
request.
5.3
Capital Budget. At each annual meeting, the Manager(s)
shall recommend whether or not capital improvements should be made
to Moulin a Vent. If the Manager(s) recommend such improvements,
the Manager(s) will prepare a detailed Capital Budget and submit it to
the Members with a recommendation for approval by a Majority vote.
Upon approval by the Members, each Member will contribute his or her
pro rata share, based upon a Percentage Interest of the Capital
Budget, into the Capital Improvements account.
5.4
Capital Improvement Account. In the event the Members
elect to make capital improvements to Moulin a Vent, the Manager will
establish a Capital Improvements account for the Company. Required
Capital Improvement Account contributions will be made by each
Member on or before 30 days following written notice by the Manager.
5.5
Delinquencies. The annual Member Operating dues
become delinquent after June 30 and a 10% delinquency fee will be
added. In addition, Members with delinquent dues and/or unpaid
delinquency fees will forego use of their allotted house time until all
delinquent payments and fees due are paid in full.
ARTICLE 6
MANAGEMENT
6.1
Managers.
Notwithstanding the foregoing, one or more
Members will be selected annually to serve as Manager(s). It is
anticipated that all members of the Moulin a Vent LLC shall assume comanagement duties.
Except for Major Decisions, as set forth below, the Manager(s)
shall make all decisions regarding the Company’s day-to-day operation
and shall be an agent of the Company with authority to bind the
Company in the ordinary course of its business. Further, the Manager
shall have the exclusive right and power to manage, operate and
control the Company and to do all things and make all decisions
necessary or appropriate to carry on the business and affairs of the
Company, including, without limitation, the power to hire attorneys,
accountants and other required consultants, the power to write checks
on the Company’s bank accounts and the power to deal with Company
Property. In such capacity, however, the Manager has the same
fiduciary responsibility to the Company and its Members as a partner
has to a partnership and its partners.
The Manager shall manage and control the affairs of the
Company to the best of his or her ability and shall use his or her best
efforts to carry out the purposes of the Company for the benefit of all
the Members. The Manager will perform his or her duties in a timely
manner. In particular, the Manager will pay, before delinquency, all bills
and obligations relating to Moulin a Vent or the Company, shall
implement all approved budgets and plans and will provide or cause to
be provided all bookkeeping and accounting for the Company,
including the filing of any tax returns as may be required. The Manager
will also provide written income and expense reports to each Member
annually (at the annual meeting) and at such times as the Manager
determines reasonable and appropriate.
6.2
Major Decisions. Notwithstanding the foregoing, the following
“Major Decisions” will require a Majority vote (5 out of 8 members
approving). Items marked with an asterick will require a "Super
Majority" (6 out of 8 members approving).
1. Approval of an Operating Budget or Capital Improvement
Budget in excess of the latest approved budget.
2. *Sale or lease of Moulin a Vent or any interest therein, except
as otherwise provided herein.
3. Incurring any debt or obligation on behalf of the Company in
excess of $1,000.00.
4. *Mortgaging Moulin a Vent or granting any manner of security
interest or lien with respect thereto.
5. *Any significant deviation from an approved budget.
6. Execution of any material contract on behalf of the Company.
7. Admitting new Members.
8. *Requiring any additional capital contribution from Members,
other than
pursuant to an approved Budget.
9. *Distribution of Company cash or asset to Members.
10.
Taking or approving any action or transaction that is
reserved to the Members by the act, the Articles or this Agreement
without any express statement of the extent of the Member action
required.
11.
Any other decision with a potential impact on the
Company consistent with the above enumerated Major Decisions.
6.3
Resignation. of Manager. A Manager may resign at any
time by delivering no less than thirty (30) days’ written notice to the
Members. This thirty day notice period will not apply in the event of a
Manager’s incapacity or death. The Manager’s resignation is effective
when the notice is effective under the Act, unless the notice specifies a
later effective date. Once delivered, a notice of resignation is
irrevocable unless the Members permit revocation. The resignation of a
Manager will not affect the Manager’s rights as a Member and will not
constitute a withdrawal of the resigning Manager as a Member.
6.4
Removal of Manager. A Manager may be removed at any
time, for reasonable cause, by a majority vote of the Members.
6.5
Successor Manager. In the event of the resignation,
removal, incapacity or death of a Manager during the Manager’s term,
a successor Manager will be elected by a Majority vote of the Members
and the duly elected Manager shall serve the balance of the term,
unless earlier terminated by the Successor Manager’s death,
resignation, incapacity or removal.
6.6
Other Activities. A Manager may have other business
interests and may engage in other activities in addition to those relating
to the Company. The Members expressly intend that this Section
constitute a limitation on the Manager’s duty of loyalty to the Company
to those business interests and activities specifically related to the
current business and properties of the Company.
6.7
Procedures if Multiple Managers. If there is more than
one Manager of the Company, the following will apply:
a)
Meetings. Meetings of the Managers, for any purpose or
purposes, may be called by any Manager. The Managers may provide
the Members with a written report or e-mail report of significant actions
taken at any such meeting. If the Managers are equally divided on a
proposed action, the proposal shall be submitted to the Members for
decision, which shall require a Majority vote.
b)
Meetings by Telephone. Meetings of the Managers may
be held by, or may include participants using, conference telephone or
by any other means of communication by which all participants can
hear or email each other simultaneously during the meeting, and such
participation shall constitute presence in person at the meeting.
ARTICLE 7
ACCOUNTING AND RECORDS
7.1
Books And Records. The Manager will, at the expense of
the Company, keep and maintain, or cause to be kept and maintained,
the books and records of the Company, using the same method of
accounting as used for federal income tax purposes.
7.2
Annual Accounting Period. All books and records of the
Company will be kept on the basis of an annual accounting period
ending December 31st of each year, which will also be the year-end for
federal tax purposes and the fiscal year-end, except for the final
accounting and tax period, which will end on the date of termination of
the Company. All references herein to the “fiscal year of the Company”
are to the annual accounting period described in the preceding
sentence, whether the same consists of 12 months or less.
7.3
Reports to the Members. Within 60 days after the end of
each fiscal year (by February 28th) of the Company, the Manager will
send to each Member, at Company expense, such information as shall
be necessary for the preparation by such Member of such Member’s
federal income tax return, which information will include a computation
of the distributions to such Member and the allocation for federal
income tax purposes to such Member of income, gain, profits, loss,
deduction or credit, as the case may be.
7.4
Right to Examine Records. Members will be entitled,
upon written request directed to the Manager, to review the records of
the Company at all reasonable times and at the location where such
records are kept by the Company.
7.5
The Tax Matters Partner.
Should there be any
controversy other than a routine matter with the Internal Revenue
Service or any other taxing authority involving the Company, the
Manager will first notify the members of the controversy and the
Manager’s plan for handling such controversy, including but not limited
to the retaining of professionals to assist the Manager and the
estimated cost of retaining those professionals. The Manager may
expend such funds as it deems necessary and advisable in the interest
of the Company to resolve such controversy satisfactorily, including,
without being limited thereto, attorney and accounting fees; however,
the Members retain and reserve the right to limit the amount of funds
available for such fees. In the event of a controversy as set forth above,
the Manager will immediately notify the Members that he or she intends
to incur any fees related to the handling of the controversy, and will
keep the Members informed as to the expense involved. The Manager
is hereby designated as the “Tax Matters Partner” as referred to in the
Internal Revenue Code Section 6231(a)(7)(A) and is specially
authorized to exercise all of the rights and powers now or hereafter
granted to the Tax Matters Partner under the Internal Revenue Code.
Any cost incurred in the audit by any governmental authority of the
income tax returns of a Member (as opposed to the Company) will not
be a Company expense. The Manager agrees to promptly consult with
and keep the Members advised with respect to (a) any income tax audit
of a Company income tax return and (b) any elections made by the
Company for federal, state or local income tax purposes.
7.6
Audits. The Member will pay any cost incurred by the
Company in the audit by any governmental authority of income tax
return(s) of a Member (as opposed to the income tax return of the
Company). The Manager agrees to consult with and to keep the
Members advised with respect to (a) any income tax audit of a
Company income tax return and (b) any elections made by the
Company for federal, state, or local income tax purposes.
7.7
Tax Returns. The Manager if required will, at Company
expense, cause the Company to prepare and file a United States
partnership return of income and all other tax returns required to be
filed by the Company.
7.8
Tax Elections. The Manager shall be permitted, in the
Manager’s discretion, to determine whether the Company should make
an election pursuant to the Internal Revenue Code Section 754 to
adjust the basis of the assets of the Company. Each Member will,
upon request, supply any reasonable information necessary to give
effect to any such election. In addition, the Manager, in the Manager’s
discretion, shall be authorized to cause the Company to make and
revoke any other elections for federal income tax purposes, as the
Manager deems appropriate, necessary or advisable.
ARTICLE 8
ALLOCATIONS AND
DISTRIBUTIONS
8.1
General. The word “Member” as used in this Article 8
includes all Persons having Economic Rights pursuant to this
Agreement, regardless of whether or not a Person may have
Management Rights under this Agreement.
8.2
Distributions.
(a)
Except as otherwise provided in this Agreement, the
amount, if any, to be distributed from the Net Cash from Operations
and from Net Cash from Sales or Refinancing will be determined by the
Manager after consultation with the Members.
(b)
The Company, except in compliance with Oregon
Revised Statues Section 63.229, or successor statues, will make no
distribution to any holder of a Percentage Interest. A distribution will be
made by the Company only if, in the judgment of the Members after
giving effect to the distribution, the Company would be able to pay its
debts as they become due in the ordinary course of business and the
fair value of the total assets of the Company would at least equal the
sum of its total liabilities plus the preferential rights, if any, of other
Persons holding percentage Interests which are superior to the rights of
those receiving the distribution.
8.3
Allocation of Net Income and Net Loss.
(a)
Except as provided herein or as a Majority of
Members may otherwise agree, all items of income, gain, loss,
deduction, and credit will be allocated among all Members in proportion
to the number of Units owned by each Member.
(b)
Internal Revenue Code Section 704(c) Gain or Loss.
Notwithstanding the above, to the extent that the Internal Revenue
Code Section 704(c) is applicable to any item of income, gain, loss and
deduction with respect to any property (other than cash) that has been
contributed by a Member and which is required to be allocated to such
Member for income tax purposes, the item will be allocated to such
Member in accordance with the Internal Revenue Code Section 704(c).
(c)
Limitation on Net Loss Allocations. Notwithstanding any
provision of this Article 7, no Member will be allocated Net Loss to the
extent such allocation would cause a negative balance in such
Member’s deemed capital account as of the end of the taxable year to
which such allocation relates.
(d)
Minimum Gain Chargeback. If there is a net decrease in
Minimum Gain (having the same meaning as “partnership minimum
gain” under Treasury Reg. Section 1.704-2(d)) during the taxable year
of the Company, then notwithstanding any other provision of this Article
8, each Member must be allocated items of income and gain for such
taxable year (and, if necessary, subsequent years) in an amount equal
to such Member’s share of the net decrease in Minimum Gain,
determined in accordance with Treasury Reg. Section 1.704-2(g). This
Section 7.2.4 is intended to comply with the minimum gain chargeback
requirement in Treasury Reg. Section 1.704-2(t).
(e)
Qualified Income Offset. If at the end of any taxable year
and after operation of the preceding Sub-Section, any Member will
have a negative balance in such Member’s Capital Account, then
notwithstanding anything contained in this Article, there will be
reallocated to each member with a negative balance in such member’s
Capital Account (determined after the allocation of income, gain or loss
under this Article for such year) each item of Company gross income
(unreduced by any deductions) and gain in proportion to such negative
balances until the Capital Account for each such member is increased
to zero.
(f)
Curative Allocations. The allocations set forth in Sections
11. 3, 11.4 and 11.5 (the “Regulatory Allocations”) are intended to
comply with certain requirements of the Treasury Regulations issued
pursuant to Code Section 704(b). It is the intent of the Members that,
to the extent possible, all Regulatory Allocations will be offset either
with other Regulatory Allocations or with special allocations of other
items of Company income, gain, loss or deduction pursuant to this
Section. Therefore, notwithstanding any other provision of this Article
(other than the Regulatory Allocations), the Manager will make such
offsetting special allocations of Company income, gain, loss or
deduction in whatever manner it determines appropriate so that, after
such offsetting allocations are made, each member’s Capital Account
balance is, to the extent possible, equal to the Capital Account balance
such member would have had if the Regulatory Allocations were not
part of the Agreement and all Company items were allocated pursuant
to Sections 11.1 and 11.2.
(g)
Modification of Company Allocations. The Members
intend that all special allocations set forth in this Article be permitted to
the fullest extent allowed under Treasury Reg. Section 1.704(b). To
ensure that such special allocations are honored for tax purposes, the
Managers are hereby directed to allocate income, gain, loss,
deductions or credits (or items thereof) in a different manner from that
set forth in this Article, if legal counsel determines that such is
necessary to ensure compliance with Treasury Reg. Section 1.704(b).
(h)
Deficit Capital Accounts at Liquidation. It is understood
that one purpose of these provisions of this Article is to ensure that
Members do not have a deficit capital account after liquidation.
However, if following liquidation of a Member’s interest as determined
under Treasury Reg. Section 1.704-1(b)(2)(ii)(g), a Member has a
deficit capital account after giving effect to all allocations under this
Article and all other adjustments have been made for Company
operations and liquidation, no Member will have any obligation to
restore that deficit balance.
8.4 Distributions to pay Tax Liabilities. Within 90 days after the end
of each fiscal year, the Manager may make a presentation (which may
be in written form) which recommends whether the Company should
make a distribution to the Members in an amount equal to at least (a)
the company’s net taxable income during the fiscal year multiplied by
(b) the highest individual income tax rate (federal and state combined
but taking into account the deductibility of state taxes for federal
income tax purposes) payable by any one or more of the Members on
taxable income for the fiscal year, less (c) the amount of any
distributions made by the Company during the fiscal year (other than
distributions made during the fiscal year that were required to be made
under the provisions of this section with respect to a prior fiscal year).
For purposes of this section, a Company’s net taxable income will be
the net excess of items of recognized income and again over the items
of recognized loss and deduction reported on the Company’s federal
income tax return for the taxable year with respect to which the
distribution is being made. The Members, by unanimous vote, may
reject the Manager’s recommendation. If the Members do not vote to
reject the Manager’s recommendation, the Company will proceed
under the Manager’s recommendation. The Company’s obligation to
make such a distribution is subject to the restrictions governing
distribution under the Oregon Limited Liability Company Act, as
provided Section 7.2 (b).
ARTICLE 9
WITHDRAWAL AND DISSOLUTION
9.1
Events of Dissolution. Except as otherwise provided in this
Operating Agreement, the Company will dissolve upon the earlier of:
(a) the time, if any, for dissolution specified in the Articles; or (b)
approval of dissolution by a unanimous vote of the Members.
9.2
Liquidation upon Dissolution and Winding Up.
Upon the
dissolution of the Company, the Managers will wind up the affairs of the
Company. A full accounting of the assets and liabilities of the Company
will be taken. The assets will be promptly liquidated and the proceeds
thereof applied as required by the Oregon Limited Liability Company
Act. With approval of a Majority of the Members, the Company may, in
the process of winding up the Company, elect to distribute certain
property in kind.
9.3
Rights of Members. Except as otherwise provided in this
Agreement, each Member will look solely to the assets of the Company
for the return of contributions and will have no right or power to demand
or receive property other than cash from the Company, and no Member
will have priority over any other Member as to the return of
contributions, distributions, or allocations.
ARTICLE 10
TRANSFERS OF INTEREST
10.1 General Restrictions.
No Member or Transferee will
cause or allow any encumbrance to be placed upon any interest in the
Company or permit any such encumbrance to remain. Unless
consented to by the unanimous vote of all Members, no Member or
Transferee may sell, give, or for any other reason transfer any interest
in the Company except in strict accordance with the provisions of this
Article 10. Any consent may be subject to such terms and conditions
as the Members in their sole and absolute discretion shall require.
10.2 Distributions and Allocations Regarding Transferred
Interests. If any interest in the Company is transferred, the profits,
losses, and all other items attributable to that interest for the company’s
fiscal year will be divided and allocated between the transferor and the
transferee by taking into account their varying interests during the fiscal
year and using any conventions permitted by law and selected by the
Manager(s).
10.3 Sale of Interest
(a)
If a Member or Transferee (the “Seller”) receives: (1) a
bona fide written offer which the Seller desires to accept (the “Buyer
Offer”) (2) from any Person (the Buyer), (3) to buy all or any portion of
the seller’s Economic Rights (the “Seller’s Interest”), (4) which states a
firm price to be paid in cash and in U.S. Dollars, and (5) with payment
in full no sooner than 30 days and no later than 60 days after the Seller
will have given written notice to all Members and Transferees, with this
Notice to contain the following:
1.
The Buyer’s full name and legal address.
2.
A true and complete copy of the written Buyer’s
Offer.
3.
An offer by the Seller (the “First Refusal Offer”) to
sell the Seller’s Interest at the Price set forth in the Buyer’s
Offer.
(b)
The First Refusal Offer will be irrevocable for a period
(the “First Refusal Period”) ending at 11:59 P.M., local time at the
Company’s principal office on the thirtieth (30th) day following the date
on which Notice is given as above provided to the last Member entitled
to such Notice.
(c)
At any time during the First Refusal Period, any Member
entitled to notice may elect to accept the First Refusal Offer by giving
written notice to the Seller (with a copy to the Company) stating that
such Member agrees to purchase the Seller’s Interest on the terms
stated in the first Refusal Offer. If more than one Member agrees to
purchase the Seller’s Interest, that Interest will be apportioned pro rata
between them with each taking that proportion which the percentage
Interest in the Company of each bears to the aggregate of the
Percentage Interests of all Persons agreeing to purchase the Seller’s
Interest. Alternatively, the Seller’s Interest may be apportioned as
unanimously agreed upon among those Persons who agreed to
purchase Seller’s Interest. The closing date will be fixed by agreement
of the parties but will not be sooner than 10 days after the first Refusal
period nor longer than 30 days thereafter. If the parties are unable to
agree, the closing date will be set by the Manager, whose decision will
be final.
(d)
If no Member accepts the First Refusal Offer, the Seller
may accept the Buyer’s Offer and will have 30 days after the first
Refusal period within which the price must be paid in full and a valid
written instrument of transfer of the Seller’s Interest to the Buyer will be
filed with the Company. If the transfer is not filed with the Company
within that time, the Seller’s right to make that sale will lapse, be null
and void, and of no further force or effect.
10.4 Death, Incapacity, Bankruptcy.
(a)
Death or Incapacity. A Member’s interest will transfer upon the
Member’s death to the Member’s heirs pursuant to his or her Last
Will/Trust or by the laws of intestate succession of the state where the
Member permanently resided at the time of his or her death. An
incapacitated Member’s interest will transfer upon the incapacity of the
Member to the Member’s guardian, conservator, trustee or fiduciary. In
the event of a dispute between which fiduciary succeeds to the
Member’s interest under any of these circumstances, a Member’s
guardian will succeed to the member’s interest. If there is no guardian,
then the Member’s conservator will succeed to the member’s interest; if
there is no conservator, then the Member’s trustee will succeed to the
Member’s interest, and if there are none of the above fiduciaries, then
finally to any other fiduciary of the Member.
(b)
Bankruptcy. The Bankruptcy of a Member will operate as
an offer to the other Members to sell them the bankrupt Member’s
entire interest in the company The Members purchasing the share
from the bankrupt Member shall provide a written acceptance of the
Offer to Sell which will make the sale binding and the parties will then
be bound to take the steps provided in Section 10.4 (c) to determine
the purchase price. The purchase price will be reduced by twenty
percent and the purchasing Members’ out-of-pocket costs in
connection with such proceeding will be reimbursed from any payments
due the Selling Bankrupt Member. Upon payment, properly executed
instruments of transfer of the Selling Bankrupt Member’s interest in the
Company will be filed with the Company. In the event of a Member’s
bankruptcy, a bankruptcy trustee is not a transferee for purposes of this
Operating Agreement.
(c)
The bankruptcy of a Member, the sale of a Member’s interest,
the failure of the personal representative of the Member to be
appointed by a duly authorized State Court within 90 days following the
death of a Member, or the failure of a transferee to be designated as
such due to a Member’s death or incapacity within 90 days of such
death or incapacity, shall constitute an Offer to Sell under Article 10
Paragraph 10.3.
(d)
Valuation of and Payment for Selling Member’s Interest.
Subject to adjustment provided for in Section 10.4 (b) herein, the
purchase price of an interest purchased pursuant to Section10.4 (a_ or
10.4 (b) (“Purchase Price”) will be equal to a Member’s share of the
amount of the last recorded House share value discussed and agreed
upon at the Members’ most recent annual meeting. In the event more
than two (2) annual meetings have transpired with no discussion and
agreement of the House share value, then the House share value will
be determined by obtaining three separate realtor (immobilier)
evaluations and the House share value will be the average of the three
evaluations plus twenty-five percent, divided by the number of House
shares.
10.4.1 Section 754 Election. At the request of either party to the
transfer of an interest in the Company during any fiscal year under this
Article 10 of the Agreement, the Tax Matter Partner may cause the
Company to make the election provided for in Section 754 of the
Internal Revenue Code and to maintain a record of adjustments to
basis resulting form the election. As a condition to making this election,
the Person (s) requesting the election shall pay to or reimburse the
Company immediately upon demand for any and all cost incurred by
the Tax Matter Partner and the Company in connection there with.
10.5 Rights and Obligations of a Transferee. Only a Member
may hold Management Rights. Any transfer to any other Person is
limited to the transferor’s economic rights as defined in this Agreement.
A Transferee has the same Economic rights as a Member and is
subject to the same economic duties and obligations as a Member but
will not have any Management Rights unless and until that Person is
admitted as a Substitute Member pursuant to this Agreement.
10.6 Admission of Transferee as Substitute Member. A
Transferee may be admitted to the Company as a Substitute Member
with all the Management Rights of a Member, only upon satisfaction of
all conditions of the following requirements;
(a)
Non-transferring Members holding (in the aggregate) 50%
or more of the percentage Interest in the Company must consent to the
admission, which consent cannot be unreasonably withheld.
(b)
The Transferee must become a party to this Agreement
as a Member by signing and delivering an admission agreement and
such other documents and information as the Company may
reasonably request as necessary or appropriate to confirm the
Transferee as a Member in the Company and the Transferee’s
agreement to be bound by the terms and conditions of this Agreement.
10.7 Pledges and Hypothecation. No interest in the Company
may be transferred by pledge or other hypothecation as security for any
debt or obligation of a Member or Transferee.
ARTICLE 11
INDEMNIFICATION
11.1 Indemnification.
The Company shall indemnify its
Managers to the fullest extent permissible under Oregon law, as the
same exists or may hereafter be amended, against all liability, loss and
costs (including, without limitation, attorney fees) incurred or suffered
by such person by reason of or arising from the fact that such person is
or was a Manager of the Company, or is or was serving at the request
of the Company as a Manager, director, officer, partner, trustee,
employee or agent of another foreign or domestic limited liability
company, corporation, partnership, joint venture, trust, benefit plan or
other enterprise. The Company may, by action of the Members or
Managers, provide indemnification to employees and agents of the
Company who are not Managers. The indemnification provided in this
section will not be exclusive of any other rights to which any person
may be entitled under any statute, bylaw, agreement, resolution of
Members or Managers, contract or otherwise.
11.2 Limitation of Liability. Managers of the Company shall not
be liable to the Company or its Members for monetary damages for
conduct as Managers except to the extent that the Oregon Limited
Liability Company Act, as it now exists or may hereafter be amended,
prohibits elimination or limitation of Manager liability. No repeal or
amendment of this section or of provisions of the Oregon Limited
Liability Company Act shall adversely affect any right or protection of a
Manager for actions or omissions prior to the repeal or amendment.
ARTICLE 12
AMENDMENTS
12.1 Amendments. The provisions of this Operating
Agreement may be amended or repealed by the Majority vote of the
Members and any amendments will be evidenced by a written and
signed Members’ Action.
ARTICLE 13
MISCELLANEOUS
13.1 Additional Documents. Each Member will execute such
additional documents and take such actions as are reasonably
requested by the Managers in order to complete or confirm the
transactions contemplated by this Operating Agreement.
13.2 Third-Party Beneficiaries.
The provisions of this Operating
Agreement are intended solely for the benefit of the Members and will
create no rights or obligations enforceable by any third party,
including creditors of the Company or any Member or Transferee,
except as provided in this Agreement or to the extent otherwise
required under applicable law.
13.3 The provisions of this Agreement. The prevailing party
shall be entitled to recover all costs and expenses incurred in such
Proceeding, or on appeal, including reasonable attorney fees as
fixed by the arbitrator or court, and including a reasonable amount
for costs and attorney fees to be incurred in collecting any money
judgment or award or otherwise enforcing each order, judgment, or
decree entered in the claim for relief, action, or other proceeding. If
either party becomes the subject of any bankruptcy or other
insolvency proceedings, the party which becomes the subject of
such proceedings will pay all legal costs and expenses incurred by
the other party in connection with such proceedings, whether such
amounts are incurred in connection with issues of state law, federal
law, bankruptcy law or otherwise.
13.4 Notices. All notices to a Member shall be in writing and
shall be addressed to the last address shown on the records of the
Company. Each Member shall notify the company in writing of any
address changes. Notices to the Company shall be in writing and
will be addressed to its Manager (or to any Manager if there be more
than one). The Manager shall keep all Members advised of his or her
current address. Except as otherwise provided herein, notices shall
be deemed received when actually received by personal service,
facsimile, e-mail, overnight mail or postage prepaid. Any notice
required to be given under this Agreement may be waived in writing
by the Person or Persons entitled to receive such notice, either
before, during, or after the time for the giving of such notice.
13.5
13.6
13.7
13.8
13.9
Severability. The invalidity or unenforceability of any
provision of this Operating Agreement will not affect the
validity or enforceability of the remaining provisions. If
such provision is deemed invalid due to its scope or
breadth, then said provision will be deemed valid to the
extent of the scope or breadth permitted by law.
Counterparts: This agreement may be executed in
several counterparts, and by the different Members
hereto on separate counterparts each of which shall be
an original and all of which shall constitute one and the
same Agreement.
Assignment: Each Member shall be prohibited from
selling, assigning, transferring, setting over, or
hypothecating his Company interest or the company
assets to any person, firm, corporation, other than as
specifically provided herein, nor may the interest of any of
the Members of the Company assets be transferred by
operation of law or by any assignment by operation of
law, except as herein provided.
Governing Law. Oregon law will govern this Operating
Agreement. In the event any of the provisions of this
Agreement require litigation, and/or if a dispute arises
regarding the interpretation or application of this
Agreement, the Parties agree the law of Oregon applies.
Headings. Headings in this Operating Agreement are for
convenience only and will not affect it’s meaning.
ADOPTED effective as of January 15, 2007 by the undersigned,
constituting all of the Members.
________________________________________________________
______________
All changes to the above Membership Register shall be sent to the
current Manager.
EXHIBIT B
HOUSE RULES – MOULIN A VENT
After each stay, Members and any Member Guests must leave the agreed upon
50 Euro caretaking fee (in Euros) in an envelope on the Moulin a Vent kitchen
counter. This caretaking fee covers the cleaning of the Moulin a Vent House
after a Member’s stay, laundering of towels and sheets, and reporting of any
damage to the managers.
Members and their guests will immediately report any damages to the
premises and its contents to the French concierge and the Manager(s).
All Members and their Guests will read and follow the “Complete House
Rules”.
COMPLETE HOUSE RULES:
No Smoking inside or outside the house
No Pets inside the House.
Internet/Telephone
•
The telephone number of the house is 4 67 24 82 06 (calling within
France). The house telephone consists of two Siemens cordless telephones and
a base unit/charger which plugs into the telephone connector on the “Neuf
Box” under the computer desk . Our ISDN Internet and telephone provider is
Neuf.fr. This system is similar to “Vonage” in the United States. Do not
disconnect power from the “Neuf Box” or disconnect its connection to the wall
jack in the bedroom or the telephone system will not function.
•
The house cordless phone instructions are in the red binder. Calls
within France, US, Canada and 25 countries are free. Do not dial 9 before the
number. Do not plug any other telephones or computer modems into the other
telephone jacks in the house, as this will disable the total phone system and
computer Internet connections.
Computer/Printer
•
The HP model 1018 laser printer may be used for printing boarding
passes, directions, and tourist information. The computer and printer are for
house owners only. Please replace printer paper when it is low. Please do not
disconnect any plugs/cabling. Houseguests unaccompanied by an owner must
provide their own computer.
Satellite Television
•
The satellite system uses the Astra satellite (England). There are many
English channels. There is direct reception (non-satellite) of local French
channels.
•
SamsungCD/DVD//AM/FM Amplifier – Use for any mode. The
Player Video output is connected to the TV. The Samsung TV sound is
connected to the "AUX" input of the Samsung Amplifier.
--Transportation
-Florence is available to pick up people from the airport/train station.
Remember that pick-up costs on French holidays are doubled. Be sure to
contact her about availability and cost. Her e-mail is
dereuterfamily@hotmail.com
•
•
Fee for transportation is reduced if the shared Golf is used.
Heating/Air conditioning –
•
The information book for this system is in the red binder. Please
familiarize yourself with its basic operation. The remote control does include
an economy button for increased efficiency. Turn off when departing.
Moderation of usage is requested due to high electrical energy costs.
Household
•
Florence, the caretaker, lives at 8 Puits de l’Amour. Her phone number
is 04 67 89 35 28. After each stay, Members and any Member Guests must
leave the agreed upon 60 Euro caretaking fee (in Euros) in an envelope on the
Moulin a Vent kitchen counter. This caretaking fee covers only the basic
cleaning of the Moulin a Vent House after a Member’s stay, laundering of
towels and sheets, etc.. If the second bedroom is used the fee is increased to 65
Euro.
•
Please report any damage or breakage to the Co-Managers.
•
If there are problems during your stay, email or call the co-managers.
Avoid bothering Florence if possible.
•
The house is stocked with some basics—toilet paper, laundry soap,
salt, pepper, etc. Please replace these items as they are used.
•
Please leave the house picked up and clean. Florence cleans after each
visit, but the house should be left in order. An additional charge may be
applied if the house is not left in good order. Please put items that have been
used back into place---tools/equipment from the attic, items from the shed, etc.
•
Please leave beds unmade when leaving. Please remove sheets and
leave on the bed along with the blankets.
•
Please follow instructions for the washing machine and dryer that are
located on the wall above the machines. Complete instruction books for the
appliances are in a folder in the blue cabinet. Remember that French washers
and dryers do not have a large capacity. Please place soap in the correct soap
dispenser not in the body of the washer. A rack for air drying clothes outside is
available.
•
Electricity is expensive in France. A power company box on the
counter in the kitchen indicates the regional anticipated power usage levels.
Red is high, blue is medium, and white is low. The cost of electricity is
greatest during red periods, so please especially minimize usage then.
•
Please use the wood cutting boards. Do not cut on the countertops.
•
Extra light bulbs, matches, flashlights, barbecue starters, etc. are in the
utility drawer in the kitchen or in the blue cupboard.
•
The main breaker switch is the black box behind the small wood panel
above the vanity in the small bedroom. The breaker box (fuse box) for
individual circuits is in the closet of the small bedroom. The breaker panel for
the new portion of the house is to the left just inside the attic space.See red
information book.
•
If several electric appliances are simultaneously operated, the main
breaker switch may trip. Remove some of the appliances (unplug them) and
reset the main breaker behind the panel above the vanity in the small
bedroom. Set it to “ON”. A stepladder is under the bed in the small bedroom.
•
Garbage/rubbish is emptied into the dumpster on the corner. Please put
recycling items (bottles, plastic containers, paper boxes, newspapers, etc.) in
the recycling containers in front of the village church.
•
Beach towels are provided (on shelf in bathroom) for use outside and at
the beach. Please use bath towels indoors only.
Notifications
Please notify Florence if you will be gone from the house for 2 or more nights.
Garden
•
Members are requested to share in garden maintenance during their
visit. The flowerbeds are on an automatic sprinkler system. Please water the
potted plans as needed. Hoses are provided. For the hose near the shed, do not
turn off the main faucet, as it supplies the sprinkler system.
•
Winds pick up unexpectedly. Please close windows when you leave.
All windows can be latched open to allow ventilation in the house. If it is too
drafty, try closing the back windows leaving the kitchen and front door open.
•
Do not leave plastic furniture on the terrace near the rock wall, as it
may blow over the edge if the wind picks up. Put the plastic table and chairs
(stack) on the patio near the kitchen.
•
To close the roll down window screens pull down and then push the
bottom frame forward until it catches. To open, pull bottom frame towards
yourself slightly and hold it while raising screen. Please do not let it snap, as it
is fragile.
•
The hose may be used in the car park area to wash cars, etc.
Safe – The safe is located in the closet of the small bedroom. It is for the
personal use of co-owners only.
Key Instructions
•
One key is for front gate. Turn twice around to double lock.
•
Second key is front door key. Open by turning counterclockwise once
around. Slot must be up and down to remove key. Lock by holding handle up
as far as possible, then turn key once around clockwise. If you are locking the
door from the inside, do the opposite.
•
Shutter key for front door. You only need to close and lock the shutters
if you are leaving overnight. Be sure each bar is in its groove (top and bottom)
as your close shutters. Latch final bar by holding black handle down until it
stops. Then turn key once around counter-clockwise to lock and clockwise to
open. Key slot must be up and down to remove key.
Problems/Issues
Please report any problems or breakage to the co-managers:
Gloria Loventhal glorialov@gmail.com
For technical problems: richardpederson@gmail.com
No smoking inside the premises of Moulin a Vent
1. No animals or pets inside the premises of Moulin a Vent
2. After each stay, Members and any Member Guests must leave
the agreed upon 50 Euro caretaking fee (in Euros) in an
envelope on the Moulin a Vent kitchen counter. This caretaking
fee covers the cleaning of the Moulin a Vent House after a
Member’s stay, laundering of towels and sheets, reporting of any
damage to the French Property Agent/Concierge, and reporting
on use of utilities to the French Property Concierge.
3. Members and their guests will immediately report any damages
to the premises and its contents to the French concierge or the
Manager(s).
4. All Members and their Guests will read and follow the House
rules book.