EXHIBIT 4.38
OPERATING AGREEMENT
OF
XXXX HAUS, LLC
(f/k/a OHIRC, LLC)
DATED AS OF OCTOBER 22, 1999
OPERATING AGREEMENT
OF
OHIRC, LLC
This Operating Agreement (this "Agreement") is executed this 22nd day of
October, 1999, by Indiana Ventures, LLC, an Indiana limited liability company
("Initial Member").
EXPLANATORY STATEMENT
The Initial Member agreed to organize and operate a limited liability
company in accordance with the terms of, and subject to the conditions set
forth in, this Agreement, and the Indiana Business Flexibility Act, I.C. Section
23-18-1 et seq. ("Act").
NOW, THEREFORE, for good and valuable consideration, the Initial Member,
intending legally to be bound, agrees as follows:
SECTION I
DEFINED TERMS
The following capitalized terms shall have the meanings specified in this
Section I. Other terms are defined in the text of this Agreement; and,
throughout this Agreement, those terms shall have the meanings respectively
ascribed to them.
"Agreement" means this Agreement, as amended from time to time.
"Code" means the Internal Revenue Code of 1986, as amended, or any
corresponding provision of any succeeding law.
"Company" means the limited liability company organized in accordance with
this Agreement.
"Interest" means a Person's share of the Profits and Losses of, and the
right to receive distributions from, the Company.
"Interest Holder" means any Person who hold an Interest, whether as a
Member or as an unadmitted assignee of a Member.
"Involuntary Withdrawal" means, with respect to a Member, the occurrence of
any of the following events:
(i) A Member makes an assignment for the benefit of creditors;
(ii) A Member files a voluntary petition of bankruptcy;
(iii) A Member is adjudged bankrupt or insolvent or there is
entered against a Member an order for relief in any bankruptcy or
insolvency proceeding;
(iv) A Member files a petition or answer seeking for the Member
any reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any statute, law, or regulation;
(v) A Member seeks, consents to, or acquiesces in the appointment
of a trustee for, receiver for, or liquidation of the Member or of all or
any substantial part of the Member's properties;
(vi) A Member files an answer or other pleading admitting or
failing to contest the material allegations of a petition filed against the
Member in any proceeding described in Subsections (i) through (v);
(vii) Any proceeding against the Member seeking reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or
similar relief under any statute, law, or regulation, continues for one
hundred twenty (120) days after the commencement thereof, or the
appointment of a trustee, receiver, or liquidator for the Member or all or
any substantial part of the Member's properties without the Member's
agreement or acquiescence, which appointment is not vacated or stayed for
one hundred twenty (120) days or, if the appointment is stayed, for one
hundred twenty (120) days after the expiration of the stay during which
period the appointment is not vacated; or
(viii) A Member's death or adjudication by a court of competent
jurisdiction as incompetent to manage the Member's person or property.
"Member" means the Initial Member and any Person who subsequently is
admitted as a member of the Company.
"Membership Rights" means all of the rights of a Member in the Company,
including a Member's: (i) interest; (ii) right to inspect the Company's books
and records; (iii) right to participate in the management of and vote on matters
coming before the Company; and (iv) unless this Agreement or the Articles of
Organization provide to the contrary, right to act as an agent of the Company.
"OSSI" means the Office of the Secretary of State of Indiana.
"Person" means and includes an individual, corporation, partnership,
association, limited liability company, trust, estate, or other entity.
"Positive Capital Account" means a Capital Account with a balance greater
than zero.
2
"Profit" and "Loss" means, for each taxable year of the Company (or other
period for which Profit or Loss must be computed) the Company's taxable income
or loss determined in accordance with the Code.
"Regulation" means the income tax regulations, including any temporary
regulations, from time to time promulgated under the Code.
"Successor" means all Persons to whom all or any part of an interest is
transferred either because of (i) the sale or gift by a Member of all or any
part of his interest, (ii) an assignment of a Member's interest due to the
Member's Involuntary Withdrawal, or (iii) because a Member dies and the Persons
are the Member's personal representatives, heirs, or legatees.
"Transfer" means, when used as a noun, any voluntary sale, hypothecation,
pledge, assignment, attachment, or other transfer, and, when used as a verb,
means voluntarily to sell, hypothecate, pledge, assign, or otherwise transfer.
"Withdrawal" means a Member's dissociation from the Company by any means.
SECTION II
FORMATION AND NAME; OFFICE; PURPOSE; TERM
2.1. Organization. The Member hereby organizes a limited liability
company pursuant to the Act and the provisions of this Agreement and, for that
purpose, has caused Articles of Organization to be prepared, executed and filed
with OSSI on October 18, 1999.
2.2. Name of the Company. The name of the Company shall be "OHIRC, LLC."
The Company may do business under that name and under any other name or names
which the Member may, in his sole discretion, determine. If the Company does
business under a name other than that set forth in its Articles of Organization,
then the Company shall file a trade name certificate as required by law.
Effective as of October 26, 1999, the Company will change its name to "Xxxx
Haus, LLC" upon closing of a transaction pursuant to which the Company will
acquire the assets of The Xxxx Haus Inn and Resort in Vevay, Indiana.
2.3. Purpose. The Company is organized to engage in any lawful business
permitted under the Act and shall have the power and authority to do all things
necessary, customary, incidental or convenient to carry out such lawful
business.
2.4. Term. The term of the Company began upon the acceptance of the
Articles of Organization by OSSI and shall continue in existence perpetually,
unless its existence is sooner terminated pursuant to Section VII of this
Agreement.
3
2.5. Principal Office. The Principal office of the Company in the State
of Indiana shall be located at 0000 Xxxx Xxxx Xxxxxx, Xxxxx, Xxxxxxx 00000, or
at any other place within the State of Indiana which the Member, in his sole
discretion, determines.
2.6. Resident Agent. The name and address of the Company's resident agent
in the State of Indiana shall be that Person and location reflected in the
Company's Articles of Organization as filed with the OSSI. The Member may, from
time to time, change the resident agent or office by designating a replacement
and filing a statement of change with the OSSI.
2.7. Members. The name, present mailing address, taxpayer identification
number and Percentage of each Member are set forth on Exhibit A.
SECTION III
MEMBERS; CAPITAL; CAPITAL ACCOUNTS
3.1. Initial Capital Contributions. Upon the execution of this Agreement,
the Member shall contribute to the Company the cash and property set forth on
Exhibit B.
3.2. No Other Capital Contributions Required. No Member shall be required
to contribute any additional capital to the Company, and except as set forth in
the Act, no Member shall have any personal liability for any obligations of the
Company.
3.3. 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 upon which the Company and the
Member agree.
SECTION IV
PROFIT, LOSS, AND DISTRIBUTIONS
4.1. Distributions of Cash Flow. Cash Flow for each taxable year of the
Company shall be distributed to the Member no later than seventy-five (75) days
after the end of the taxable year.
4.2. Allocation of Profit or Loss. All Profit or Loss shall be allocated
to the Member.
4.3. Liquidation and Dissolution. If the Company is liquidated, the
assets of the Company shall be distributed to the Member or to a Successor or
Successors.
SECTION V.
MANAGEMENT: RIGHTS, POWERS, AND DUTIES
5.1. Management. The Company shall be managed solely by the Member. For
so long as the Member is the sole member of the Company, the Manager of the
Member shall be authorized
4
to and recognized as acting on behalf of the Company in executing instruments
for the Company by its Member.
5.2. Personal Services. The Member shall not be required to perform
services for the Company solely by virtue of being a Member.
5.3. LIABILITY AND INDEMNIFICATION
5.3.1. The Member shall not be liable, responsible, or accountable,
in damages or otherwise, to the Company for any act performed by him with
respect to Company matters, except for fraud.
5.3.2. The Company shall indemnify the Member or any of its agents
or managers with respect to Company matters, except for fraud.
SECTION VI
TRANSFER OF INTERESTS AND WITHDRAWALS OF MEMBERS
6.1. Transfers. The Member may Transfer all, or any portion of, or his
interest or rights in, his Membership Rights to one or more Successors.
6.2. Transfer to a Successor. In the event of any Transfer of all or any
part of the Member's Interest to a Successor, the Successor shall thereupon
become a Member and the Company shall be continued.
SECTION VII
DISSOLUTION, LIQUIDATION, AND TERMINATION OF THE COMPANY
7.1. Events of Dissolution. The Company shall be dissolved if the Member
determines to dissolve the Company. The Company shall not dissolve merely
because of the Member's Involuntary Withdrawal.
7.2. Procedure for Winding Up and Dissolution. If the Company is
dissolved, the affairs of the Company shall be wound up. On winding up of the
Company, the assets of the Company shall be distributed, first, to creditors of
the Company in satisfaction of the liabilities of the Company, and then to the
Persons who are the Members of the Company in proportion to their interests.
7.3. Filing of Articles of Cancellation. If the Company is dissolved,
Articles of Cancellation shall be promptly filed with the OSSI. If there are no
remaining Members, the Articles shall be filed by the last Person to be a
Member; if there are no remaining members, or a Person who last was a Member,
the Articles shall be filed by the legal or personal representatives of the
Person who last was a Member.
5
SECTION VIII
BOOKS, RECORDS, ACCOUNTING, AND TAX ELECTIONS
8.1. Bank Accounts. All funds of the Company shall be deposited in a bank
account or accounts opened in the Company's name. The Member shall determine the
institution or institutions at which the accounts will be opened and maintained,
the types of accounts, and the Persons who will have authority with respect to
the accounts and the funds therein.
8.2. Books and Records. The Member shall keep or cause to be kept
complete and accurate books and records of the Company and supporting
documentation of the transactions with respect to the conduct of the Company's
business. The books and records shall be maintained in accordance with sound
accounting principles and practices.
8.3. Annual Accounting Period. The annual accounting period of the
Company shall be its taxable year. The Company's taxable year shall be selected
by the Member, subject to the requirements and limitations of the code.
SECTION IX
GENERAL PROVISIONS
9.1. Assurances. Each Member shall execute all such certificates and
other documents and shall do all such filing, recording, publishing, and other
acts as the Members deem appropriate to comply with the requirements of law for
the formation and operation of the Company and to comply with any laws, rules,
and regulations relating to the acquisition, operation, or holding of the
property of the Company.
9.2. Notifications. Any notice, demand, consent, election, offer,
approval, request, or other communication (collectively, a "notice") required or
permitted under this Agreement must be in writing and either delivered
personally or sent by certified or registered mail, postage prepaid, return
receipt requested. A notice must be addressed to an Interest Holder at the
Interest Holder's last known address on the records of the Company. A notice to
the Company must be addressed to the Company's principal office. A notice
delivered personally will be deemed given only when acknowledged in writing by
the person to whom it is delivered. A notice that is sent by mail will be deemed
give three (3) business days after it is mailed. Any party may designate, by
notice to all of the others, substitute addresses or addressees for notices;
and, thereafter, notices are to be directed to those substitute addresses or
addressees.
9.3. Complete Agreement. This Agreement constitutes the complete and
exclusive statement of the agreement among the Members. It supersedes all prior
written and oral statements, including any prior representation, statement,
condition, or warranty. Except as expressly provided otherwise herein, this
Agreement may not be amended without the written consent of all of the Members.
6
9.4. Applicable Law. All questions concerning the construction, validity
and interpretation of this Agreement and the performance of the obligations
imposed by this Agreement shall be governed by the internal law, not the law of
conflicts, of the State of Indiana.
9.5. Section Titles. The headings herein are inserted as a matter
of convenience only, and do not define, limit, or describe the scope of this
Agreement or the intent of the provisions hereof.
9.6. Binding Provisions. This Agreement is binding upon, and inures to
the benefit of, the parties hereto and their respective heirs, executors,
administrators, personal and legal representatives, Successors, and permitted
assigns.
9.7. Jurisdiction and Venue. Any suit involving any dispute or matter
arising under this Agreement may only be brought in the United States District
Court for the Southern District of Indiana or any Indiana State Court having
jurisdiction over the subject matter of the dispute or matter. All Members
hereby consent to the exercise of personal jurisdiction by any such court with
respect to any such proceeding.
9.8. Terms. Common nouns and pronouns shall be deemed to refer to the
masculine, feminine, neuter, singular and plural, as the identity of the Person
may in the context require.
9.9. Separability of Provisions. Each provision of this Agreement shall
be considered separable; and if, for any reason, any provision or provisions
herein are determined to be invalid and contrary to any existing or future law,
such invalidity shall not impair the operation of or affect those portions of
this Agreement which are valid.
9.10. Counterparts. This Agreement may be executed simultaneously in two
or more counterparts each of which shall be deemed an original, and all of
which, when taken together, constitute one and the same document. The signature
of any party to any counterpart shall be deemed a signature to, and may be
appended to, any other counterpart.
IN WITNESS WHEREOF, the parties have executed, or caused this Agreement to
be executed, under seal, as of the date set forth hereinabove.
WITNESS OR ATTEST: MEMBER:
[ILLEGIBLE] INDIANA VENTURES, LLC, an
[ILLEGIBLE] Indiana limited liability company
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Xxxxx X. Xxxxxx, its Manager
7
STATE OF Indiana )
)SS:
COUNTY OF Jefferson )
Before me, a Notary Public in and for said County and State, personally
appeared Xxxxx X. Xxxxxx, the Manager of Indiana Ventures, LLC, an Indiana
limited liability company, and acknowledged the execution of the foregoing
Operating Agreement as a voluntary act and deed.
Witness my hand and Notarial Seal, this 26 day of October, 1999.
/s/ Xxxxxxx X. Xxxx
--------------------------
Notary Public - Signature
/s/ Xxxxxxx X. Xxxx
--------------------------
Notary Public - Printed
My Commission Expires: My County of Residence:
6-27-2000 /s/ Jefferson
---------------------- --------------------------
8
EXHIBIT A
Name, Address and
Taxpayer I.D. Number
of Initial Member Percentage
-------------------- ----------
Indiana Ventures, LLC 100%
000 Xxxxx Xxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxxxxxx, 00000
Taxpayer I.D. Number: 00-0000000
9
EXHIBIT B
Initial Capital
Initial Member Contribution
-------------- ---------------
Indiana Ventures, LLC $ 100.00
TOTALS: $ 100.00
===============
10
