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EXHIBIT 10.23
JOINT VENTURE AGREEMENT
FOR OPERATION OF
MIAMI AIRPORT DUTY FREE JOINT VENTURE
This Joint Venture Agreement is made as of this 31st day of August, 1995, by and
among Greyhound Leisure Services, Inc. ("GLSI") Century Duty Free, Inc., Media
Consultants, Inc., Xxxxx X. Xxxxxxx, and Bayside Company Store d/b/a Bayside To
Go, Inc., all of whom intend to participate in the operation of the joint
venture herein described ("Venture" herein).
1. ASSOCIATION, NAME, PURPOSES.
1.1. ASSOCIATION. The parties hereto ("Members") hereby associate
themselves as partners to operate the Venture. The Members from time to
time hereafter, as may be required by law, shall execute all amendments
to this Agreement, and do all acts as may be appropriate to comply with
all applicable law in the organization and operation of the Venture.
1.2. GOVERNING LAW. The Venture has been formed pursuant to the Florida
Uniform Partnership Act, Florida Statutes Sections 620.56-620.77
("Act"), and should any provision of this Agreement conflict with the
Act, the Act shall be controlling as to such provision but only to the
extent of the conflict.
1.3. PARTNERSHIP ATTRIBUTES. It is the intent of the Members hereto
that Venture shall be operated in a manner consistent with its
treatment as a "partnership" for all purposes, including federal and
state income tax purposes. No Member shall take any action inconsistent
with this expressed intention.
1.4. NAME. The name of the Venture shall be Miami Airport Duty Free
Joint Venture.
1.5. PLACE OF BUSINESS. The principal place of business of Venture
shall be 0000 X.X. 00xx Xxxxxx, Xxxxx, Xxxxxxx 00000-0000, or such
other place as the Manager shall determine in its sole discretion.
1.6. PURPOSE. Venture has been established to operate a retail shop
concession or concessions at the Miami International Airport
("Airport") at Miami, Florida, bidding for which currently is pending
PMD No. 000036 ("Concession") to operate pursuant to an agreement
between Dade County, Florida, and Venture for the Concession
("Concession Agreement") and to engage in any activities that are
related to the accomplishment of such purpose.
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1.7. TERM. This Agreement shall be effective as of June 21, 1995. The
Venture shall continue in existence until such time as the Venture
fails to be awarded the Concession or no longer has the right to
operate the Concession, unless sooner dissolved and terminated as
specifically provided for in this Agreement. It is understood by the
Members that this Agreement and the Venture shall continue in existence
throughout any renewals or extension of the Concession to the Venture.
1.8. MEMBERS. The name and address of each of the Members of Venture
are:
Greyhound Leisure Services, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Century Duty Free, Inc.
000 XX 00 Xxxxxx
Xxxxx, XX 00000
Media Consultants, Inc.
0000 XX 00 Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
Xxxxx X. Xxxxxxx, Individually
000 X. Xxxx Xxxxx #0
Xxxxx, XX 00000
Bayside Company Store, Inc.
d/b/a Bayside To Go
000 Xxxxxxxx Xxxx. #X000
Xxxxx, XX 00000
1.9. AGENT FOR SERVICE OF PROCESS. The name and business address of the
agent for service of process for Venture is CT Corp., 0000 Xxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx 00000, or such other person as Manager
shall appoint from time to time.
1.10. MANAGEMENT. The affairs of Venture shall be conducted by GLSI as
Manager, subject to the provisions of Section 3 hereof, to hold such
authority until its successor is appointed by the Members.
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2. CAPITALIZATION.
2.1. CAPITAL CONTRIBUTIONS; CAPITAL INTERESTS. Each Member shall make
the following contributions of property to the Venture on or before
December 1, 1995, herein referred to as "Interest" or "Capital
Interest".
GLSI $8,118,000, being a 66%
interest in the capital of
Venture Capital Interest.
Century Duty Free, Inc. $1,722,000, being a 14% Capital Interest.
Media Consultants, Inc. $492,000, being a 4% Capital Interest.
Xxxxx X. Xxxxxxx $492,000, being a 4% Capital Interest.
Bayside Company Store $1,476,000, being a 12% Capital Interest.
Each DBE Member will borrow:
o 10% of their capital contribution from outside sources,
o 90% of their capital contribution from Greyhound Leisure
Services, Inc.
Interest charged to DBE Members will be fixed at prime rate.
DBE Members will reimburse interest charges to GLSI from the proceeds
of their profit shares. Depreciation and financing expenses will be
charged to income statement prior to profit distribution.
2.2. CAPITAL ACCOUNTS.
(a) DEBITS AND CREDITS. Manager shall cause Venture to
maintain separate accounts of the capital for each Member
("Capital Account") reflecting such Member's Capital Interest
in accordance with the applicable provisions of the Internal
Revenue Code of 1986, as amended ("Code"), and the regulations
issued thereunder ("Regulations").
(b) Each Member's Capital Account shall be credited with such
Member's capital contributions, and a portion of the Profits
(herein defined) of Venture equal to such Members Capital
Interest, determined for each fiscal year of Venture according
to accounting principles consistently applied and allocated to
such Member in accordance with the provisions of this
Agreement.
(c) Each Member's Capital Account shall be debited by the
amount of cash distributed to such Member in accordance with
this Agreement, the gross asset value of any other Venture
property distributed to such Member pursuant to any provision
of this Agreement, a portion of the Losses (herein defined) of
Venture equal to such Member's Capital Interest and the amount
of any liabilities of such
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Member that are assumed by Venture or that are secured by any
property contributed by such Member to the Venture.
(d) If the gross asset value of the Venture assets are
adjusted pursuant to this Agreement, the Capital Accounts of
all Members shall be adjusted simultaneously to reflect the
aggregate net adjustment, as if Venture had recognized gain or
loss equal to the amount of such aggregate net adjustment and
the resulting gain or loss had been allocated among the
Members in accordance with their respective Capital Percentage
Interest.
2.3. INTERPRETATION AND CHANGES. The foregoing provisions and the other
provisions of this Agreement relating to the maintenance of Capital
Accounts are intended to comply with the Code and applicable
Regulations and shall be interpreted and applied in a manner consistent
therewith. If, after consultation with Venture counsel, it is
determined that it is prudent to modify the manner in which the Capital
Accounts, or any debits or credits thereto are allocated or computed,
in order to comply with such applicable federal law, the Manager shall
make such modifications after notification to and consultations with
the other Members; provided the Manager determines in good faith that
such modification is not likely to have a material adverse effect on
the amounts properly distributable to any Member upon the termination
of this Venture and that such modification will not increase the
liability of any Member to third parties.
3. MANAGEMENT; RIGHTS AND DUTIES OF MANAGER.
3.1. MANAGEMENT. The business and affairs of Venture shall be managed
by Manager in consultation with other Members through the Management
Committee herein provided for. Manager shall direct, manage and control
the business of Venture to the best of its ability in consultation with
such Management Committee as herein provided. No Member alone other
than the Manager or Management Committee shall have the authority to
bind Venture. The expertise to be provided by Century, Media, Xxxxx
Xxxxxxx, and Bayside is described in Exhibit "A" attached hereto.
3.2. MANAGEMENT COMMITTEE.
(a) The business of the Venture shall be managed by Manager by
consultation with a Management Committee. The Management
Committee shall consist of three members. GLSI, as Manager,
shall appoint one member of the Management Committee. Century
Duty Free, Inc., Media Consultants, Inc., Xxxxx X. Xxxxxxx,
and Bayside Company Store shall elect two (2) other members of
the Management Committee. Each of said Members shall have the
right to propose one (1) nominee for the Management Committee,
and the two (2) nominees receiving the greatest number of
votes shall be appointed to the Management Committee. Within
10 days of the date of this Agreement, each Member shall
advise the other in writing of the identity of its initial
appointee or appointees to the Management Committee. Each
Member shall have the right, by written notice to the Venture
and the other Members, to designate and appoint any Management
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Committee member to replace a Management Committee member
previously appointed by it in the event of the latter's death,
resignation, retirement or removal from office. Such remaining
Members shall also have the right, by written notice to the
Venture and the other Members, to remove any of the Management
Committee members appointed by such Members, or to designate a
substitute for any such Management Committee members, to serve
in the place of such Management Committee member for such
period designated by such Member in the notice referred to
above. No member of the Management Committee shall hold office
for a fixed term; rather, each Management Committee member
shall serve until he or she dies, resigns, retires or is
removed from office by the Members that appointed him or her.
(b) Meetings of the Management Committee for the transaction
of the business of the Venture may be called at such time,
subject to 24 hours prior notice, by the Member provided,
however, that the Management Committee shall meet not less
frequently than once each calendar quarter. Meetings shall
take place at the offices of the Manager or at such other
location as may be agreed upon by the Members. Actions and
decisions of the Management Committee shall be final,
conclusive and binding upon the Venture and the Members with
the same force and effect as if each of the Members had
specifically or affirmatively taken such action or decision,
subject, however to Section 3.2(d) hereof.
(c) The Management Committee from time to time may delegate to
a Member the exclusive authority to act for, or assume an
obligation or create a liability on behalf of, the Venture.
That Member shall act in accordance with the decision of the
Management Committee.
(d) The decisions of the Management Committee shall be
determined whenever possible by consensus. However, if the
members of the Management Committee cannot agree on a
decision, then except in an emergency, the issue for decision
shall be referred by the Management Committee to the Members.
The presidents of each corporate Member, and each individual
Member, shall promptly confer and attempt to make the decision
by consensus. If the Members cannot agree on a decision, then
the issue shall be decided by affirmative vote of a
Majority-In-Interest of the Members. In an emergency, the
decision shall be made by Manager, and the decision shall be
binding on the members of the Management Committee, the
Members and the Venture so long as such decision is consistent
with the terms and conditions of this Agreement. No Member nor
her or its representative on the Management Committee shall
receive compensation from the Venture for his or its services
as a member of the Management Committee.
3.3. NUMBER, TENURE AND QUALIFICATIONS OF MANAGER. GLSI initially shall
be the sole Manager. The number of Managers of Venture shall be fixed
from time to time by the affirmative vote of a Majority-In-Interest of
the Members, but at all times there shall be at
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least one Manager. Each Manager shall hold office until the next annual
meeting of Members or until its successor shall have been elected and
qualified. Managers need not be residents of the State of Florida. As
used herein, Majority-In-Interest means a simple majority of the
Capital Interests of Members stated herein or, in the case described in
Section 8.2 herein, a simple majority of the Capital Interests of
Members excluding that of the Member in default.
3.4. CERTAIN POWERS OF MANAGER. Without limiting the generality of
Section 3.1 hereof, Manager shall have power and authority, on behalf
of Venture, after consultation with the Management Committee, subject
to the limitations of Section 3.5 hereof to exercise the powers and
perform the acts described below. Manager shall disclose to the
Management Committee any dealings which Manager intends to conduct with
affiliates of Manager.
(a) Upon the affirmative vote a Majority-In-Interest, to
acquire property from any person as the Manager may determine,
and the fact that a Member is directly or indirectly
affiliated or connected with any such person shall not
prohibit Manager from dealing with that person;
(b) Upon the affirmative vote of a Majority-In-Interest, to
borrow money for Venture from banks, other lending
institutions, Members, or affiliates of Members on such terms
as they deem appropriate, and in connection therewith, to
hypothecate, encumber and grant security interests in the
assets of Venture to secure repayment of the borrowed sums. No
debt or other obligation shall be contracted or liability
incurred by or on behalf of Venture except by Manager;
(c) To purchase liability and other insurance to protect
Venture's property and business;
(d) To hold and own any Venture real and/or personal
properties in the name of Venture;
(e) To invest any Venture funds temporarily (by way of example
but not limitation) in time deposits, short-term governmental
obligations, commercial paper or other investments;
(f) To execute on behalf of Venture all instruments and
documents, within its authority, including, without
limitation, checks, drafts, note and other negotiable
instruments, mortgage or deeds of trust, security agreements,
financing statements, documents providing for the acquisition,
mortgage or disposition of the Venture's property,
assignments, bills of sale, leases, partnership agreements,
Miami International Airport concession agreement or
agreements, and any other instruments or documents necessary,
in the opinion of Manager, to the ordinary course of business
of Venture;
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(g) To employ accountants, legal counsel, managing agents or
other experts to perform services for Venture and to
compensate them from Venture funds;
(h) To act as "tax matters partner" pursuant to Section 6231
of the Code;
(i) To enter into any and all other agreements on behalf of
Venture in the ordinary course of its business, with any other
person or entity for any purpose, in such forms as Manager may
approve; including the establishment of a procedure and
agreement whereby inventory to be sold by Venture shall be
provided by GLSI on a consignment basis pursuant to which
title to it will remain vested in GLSI, and Venture shall bear
all carrying costs of such consigned inventory and upon sale
thereof will reimburse Manager for Manager's verified cost
thereof and such carrying costs out of sale proceeds; and
(j) To do and perform all other acts as may be necessary or
appropriate to the conduct of Venture's business in its
ordinary course.
3.5. LIMITATIONS.
(a) Unless authorized to do so by this Agreement or by a
Manager, no Member, agent or employee of Venture shall have
any power or authority to bind Venture in any way, to pledge
its credit or to render it liable for any purpose. However, a
Manager may act by or through duly authorized
attorney-in-fact.
(b) It is expressly agreed that the Venture, the Manager, and
none of the Members shall take on behalf of the Venture,
action with respect to any of the following matters unless
approved in writing by all Members acting individually or
through their appointed representatives of the Management
Committee:
(i) The establishment by the Venture of any
concession other than the Concession in the Airport
or elsewhere;
(ii) The amount, terms and conditions of any
long-term debt of the Venture;
(iii) Amending the Concession Agreement or admission
of any new Members to the Venture;
(iv) Selling or disposing of assets having a value in
excess of $10,000;
(v) Any contract, agreement or undertaking, other
than the Concession Agreement, by which any Member
becomes or might become subject to possible claims or
liabilities which are not expressly limited to the
interest of such Member in the Venture;
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(vi) The institution of any legal or administrative
action by or on behalf of the Venture or the
compromise or settlement of any claim of the Venture
of more than $5,000 for less than the face amount of
such claim;
(vii) Except as otherwise provided herein, the
distribution of cash or property by the Venture;
(viii) The lending by Venture of money to or the
guarantee by Venture of the indebtedness of any third
party;
(ix) The making, execution or delivery on behalf of
the Venture of any assignment for the benefit of
creditors or any concession of judgment, guarantee,
indemnity bond or surety bond;
(x) The filing of a complaint or the institution of
any proceeding at law or in equity to have any
property of the Venture partitioned;
(xi) Borrowing any money or the execution or
modification of any mortgage, deed to secure debt,
pledge, encumbrance or other hypothecation or
security agreement affecting the assets of the
Venture or any financing in connection therewith; or
(xii) Any transaction not within the scope of the
Venture business described herein.
3.6. EXCLUSIVE DUTY TO VENTURE. Manager shall not be required to manage
Venture at its sole and exclusive function and it may have other
business interests and may engage in other activities in addition to
those relating to Venture. Neither Venture nor any Member shall have
any right, by virtue of this Agreement, to share or participate in such
other investments or activities of Manager or to the income or proceeds
derived therefrom.
3.7. BANK ACCOUNTS. Manager may from time to time open bank accounts in
the name of Venture, and Manager shall be the sole signatory thereon,
unless the Majority-In-Interest of the Members determines otherwise.
3.8. INDEMNITY OF THE MANAGER. Manager shall be indemnified by Venture
for acts or omissions in its capacity as Manager of the Venture to the
fullest extent permitted by Florida law.
3.9. RESIGNATIONS. Any Member may resign as Manager of Venture at any
time by giving written notice to the Members. The resignation of any
Manager shall take effect upon receipt of notice thereof or at such
later time as shall be specified in such notice thereof or at such
later time as shall be specified therein, the acceptance of such
resignation shall not be necessary to make it effective. Such
resignation shall affect such Manager's rights and liabilities as a
member.
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3.10. REMOVAL. Manager may be removed at any time, with or without
cause, by the affirmative vote of a Majority-In-Interest of the
Members.
3.11. VACANCIES. Any vacancy occurring for any reason in the office of
Manager of Venture may be filled by the affirmative vote of a
Majority-In-Interest of Members. A manager elected to fill a vacancy
shall be elected for the unexpired term of his predecessor in office
and shall hold office until the expiration of such term and until his
successor shall be elected and shall qualify or until his earlier
death, resignation or removal. A Manager chosen to fill a position
resulting from an increase in the number of Managers shall hold office
until the next annual meeting of Members and until his successor shall
be elected and shall qualify, or until his earlier death, resignation
or removal.
3.12. COMPENSATION. Compensation for Manager's services and obligations
hereunder shall be established by the Majority-In-Interest of the
Members to provide Manager with a means to be reimbursed for its cost
and expense of management services, including the reimbursement of
direct costs pursuant to Section 3.4(i) hereof and a reimbursement of
indirect costs of not less than 3% of gross receipts of Joint Venture.
3.13. TRAINING PROVIDED BY MANAGER. In connection with managing the
Venture and consulting with the other Members, Manager shall provide
training opportunities to Century, Media, Xxxxx Xxxxxxx and Bayside,
which include but are not limited to the opportunities listed in
Exhibit "B".
4. RIGHTS AND OBLIGATIONS OF MEMBERS.
4.1. LIABILITY. Manager and Members shall be liable for the Venture's
obligations under the Concession Agreement and all other obligations of
the Venture.
4.2. LIST OF MEMBERS. Upon written request of any Member, Manager shall
provide a list showing the names, last known addresses and interests of
all Members.
4.3. APPROVAL OF SALE OF ALL ASSETS. Members shall have the right, by
the affirmative vote of a Majority-In-Interest, to approve the sale,
exchange or other disposition of all, or substantially all, of
Venture's assets which is to occur as part of a single transaction or
plan.
4.4. ACCOUNTS. Manager shall maintain and preserve at Venture's
registered office, during the term of the Venture, and as long
thereafter as all years are open by statute or pursuant to waivers in
state or federal tax review of audit, all accounts, books, and other
relevant Venture documents, including, without limitation, copies of
this Agreement together with any supplements, modifications or
amendments hereto, any prior operating agreements no longer in effect,
written agreements by a Member to make a capital contribution to
Venture, copies of Venture's federal, state and local income tax
returns and reports and copies of all financial statements. Upon
reasonable request, each
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Member shall have the right, during ordinary business hours, to inspect
and copy such Venture documents at the Member's expense.
4.5. PRIORITY AND RETURN OF CAPITAL. Except as otherwise provided
herein, no Member shall have priority over any other Member, either as
to the return of Capital Contributions or as to Profits, Losses or
distributions; provided that this Section shall not apply to loans (as
distinguished from capital contributions) which a Member has made to
Venture.
5. MEETING OF MEMBERS.
5.1. ANNUAL MEETING. An annual meeting of the Members shall be held
prior to the end of May of each year or at such time as shall be
determined by a Majority-In- Interest of the Members, commencing with
the year 1996 for the purpose of the transaction of such business as
may come before such meetings.
5.2. SPECIAL MEETINGS. Special meetings of the Members, for any purpose
or purposes may be called by Manager or by a Majority-In-Interest of
the Members.
5.3. QUARTERLY MEETINGS. Quarterly meetings of the Management Committee
shall be held within 30 days after the end of each calendar quarter.
5.4. PLACE OF MEETINGS. The Members may designate any place, either
within or outside the State of Florida, as the place of meeting for any
meeting of the Members. If no designation is made, or if a special
meeting be otherwise called, the place of meeting shall be held at 0000
X.X. 00xx Xxxxxx, Xxxxx, Xxxxxxx 00000-0000.
5.5. NOTICE OF MEETINGS. Except as provided in Section 5.7 hereof,
written notice stating the place, day and hour of the meeting and the
purpose or purposes for which the meeting is called shall be delivered
not less than 1 nor more than 30 days before the date of the meeting,
either personally or by mail, by or at the direction of Manager or
person calling the meeting, to each Member entitled to vote at such
meeting. If mailed, such notice shall be deemed to be delivered 2
calendar days after being deposited in the United States mail,
addressed to the Member at its address as it appears on the books of
Venture, with postage thereon prepaid. If transmitted by way of
facsimile, such notice shall be deemed to be delivered on the date of
such facsimile transmission to the fax number, if any, for the
respective member which has been supplied by such Member to Manager and
identified as such Member's facsimile number.
5.6. MEETINGS OF ALL MEMBERS. If all Members shall meet at any time and
place, either within or outside of the State of Florida, and consent to
the holding of a meeting at such time and place, such meeting shall be
valid without call or notice, and at such meeting lawful action may be
taken.
5.7. RECORD DATE. For the purpose of determining Members entitled to
notice of or to vote at any meeting of Members or any adjournment
thereof, or Members entitled to
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receive payment of any distribution, or in order to make a
determination of Members for any other purpose, the date on which
notice of the meeting is mailed or the date on which the resolution
declaring such distribution is adopted, as the case may be, shall be
the record date for such determination of Members. When a determination
of Members entitled to vote at any meeting of Members has been made as
provided in this Section 5.6, such determination shall apply to any
adjournment thereof.
5.8. QUORUM. A Majority-In-Interest of Members represented in person or
by proxy, shall constitute a quorum at any meeting of Members. In the
absence of a quorum at any such meeting, a majority of the Interest so
represented may adjourn the meeting from time to time for a period not
to exceed 60 days without further notice. However, if the adjournment
is for more than 60 days, or if after the adjournment a new record date
is fixed for the adjourned meeting, a notice of the adjourned meeting
shall be given to each Member of record entitled to vote at a meeting.
5.9. MANNER OF ACTING. If a quorum is present, the affirmative vote of
a Majority-In- Interest of Members shall be the act of the Members,
unless the vote of a greater or lesser proportion or number is
otherwise required by this Agreement.
5.10. PROXIES. At all meetings of Members, a Member may vote in person
or by proxy executed in writing by the Member or by a duly authorized
attorney-in-fact. Such proxy shall be filed with the Manager before or
at the time of the meeting. No proxy shall be valid after 11 months
from the date of its execution, unless otherwise provided in the proxy.
5.11. ACTION BY MEMBERS WITHOUT A MEETING. Action required or permitted
to be taken at a meeting of Members may be taken without a meeting if
the action is evidenced by one or more written consents describing the
action taken, signed by each Member entitled to vote and delivered to
the Manager for inclusion in the minutes or for filing with Venture
records. Action taken under this Section is effective when all Members
entitled to vote have signed the consent, unless the consent specifies
a different effective date. The record date for determining Members
entitled to take action without a meeting shall be the date the first
Member signs a written consent.
5.12. WAIVER OF NOTICE. When any notice is required to be given to any
Member, a waiver thereof in writing signed by the Person entitled to
such notice, whether before, at, or after the time stated therein,
shall be equivalent to the giving of such notice.
6. PROFIT AND LOSSES; DISTRIBUTIONS.
6.1. DEFINITIONS. As used in this Agreement, the terms "Profits" and
"Losses" have the following meanings:
(a) "Profits" means, for the fiscal year of Venture, the
income gains of Venture determined in accordance with
accounting principles consistently applied from year to year
and, as reported, separately or in the aggregate, as
appropriate,
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on Venture's information tax return filed for federal income
tax purposes, plus any income described in Section
705(a)(1)(B) of the Code.
(b) "Losses" means, for each fiscal year of Venture, the
losses and deductions of Venture determined in accordance with
accounting principles consistently applied from year to year
and, as reported, separately or in the aggregate, as
appropriate, on Venture's information tax return filed for
federal income tax purposes, plus any expenditures described
in Section 705(a)(2)(B) of the Code.
6.2. PROFITS AND LOSSES. Subject to Section 6.4 hereof, each Member
shall share in the Profits and Losses of the Venture in proportion to
their respective Capital Interests.
6.3. DISTRIBUTIONS. Except as otherwise provided herein, all
distributions of cash or other property out of Profits shall be made to
Members in proportion to their respective Capital Interests on the
record date of such distribution. Except as otherwise provided herein,
all distributions shall be made at such time as is determined by
Manager. All amounts withheld pursuant to the Code, Regulations or any
provisions of state or local tax law with respect to any payment or
distribution to Members from Venture shall be treated as amounts
distributed to the relevant Member or Members pursuant to this Section
6.3 hereof.
6.4. LIMITATION UPON DISTRIBUTIONS. No distribution shall be declared
and paid unless, after the distribution is made, the assets of Venture
are in excess of all liabilities of Venture, except liabilities to
Members on account of their contributions.
6.5. ACCOUNTING METHOD. The books and records of account of Venture
shall be maintained in accordance with the accrual method of
accounting.
6.6. INTEREST ON AND RETURN OF CAPITAL CONTRIBUTIONS. No Member shall
be entitled to interest on the Member's capital contributions or to the
return of the Member's capital contribution, except as otherwise
specifically provided for herein.
6.7. LOANS TO VENTURE. Nothing in this Operating Agreement shall
prevent any Member from making secured or unsecured loans to Venture by
agreement with Venture.
6.8. ACCOUNTING PERIOD. Venture's fiscal year shall be the calendar
year.
6.9. RECORDS, AUDITS AND REPORTS. At the expense of Venture, Manager
shall maintain records and accounts of all operations and expenditures
of Venture. At a minimum, Venture shall keep at its principal place of
business the following records:
(a) A current list of the full name and last known business,
residence, or mailing address of each Member and Manager, both
past and present;
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(b) Copies of Venture's federal, state and local income tax
returns and reports, if any, for all years that are open by
statute or pursuant to waivers for state or federal tax review
or audit;
(c) Copies of Venture's currently effective written Joint
Venture Agreement and all amendments thereto, copies of any
prior written agreements no longer in effect, copies of any
writings permitted or required with respect to a Member's
obligation to contribute cash, property or services, and
copies of any financial statements of Venture for the three
most recent years;
(d) Minutes of every annual, special, and court-ordered
meeting of Members;
(e) Any written consents obtained from Members for actions
taken by Members without a meeting.
6.10. TAX RETURNS AND OTHER ELECTIONS. Manager shall cause the
preparation and timely filing of all returns required to be filed by
Venture pursuant to the Code and all other tax returns deemed necessary
and required in each jurisdiction in which Venture does business and
the timely payment or deposit of all taxes due. Copies of such returns,
or pertinent information therefrom, shall be furnished to Members
within a reasonable time after the end of Venture's fiscal year. All
elections permitted to be made by Venture under federal or state tax or
other laws shall be made by Manager in its sole discretion.
7. RESTRICTIONS ON TRANSFERABILITY.
No Member shall have any right to retire or withdraw voluntarily from
the Venture or to sell, transfer or assign a Capital Interest separately or to
sell an Interest, or voluntarily to commit an act that constitutes an event of
withdrawal as a Member under any applicable law ("Withdrawal Event"). Any
voluntary act of a Member that constitutes a withdrawal from Venture shall
constitute a material breach of this Agreement and Venture shall be entitled to
collect damages for such breach. Such damages shall offset any cash or other
property otherwise distributable to such Member by Venture. Admission of a
transferee of an Interest as Member shall not effect the dissolution of Venture.
8. REMOVAL/WITHDRAWAL/ADDITION OF MEMBERS.
8.1. After the formation of Venture pursuant hereto, no person or
entity may become a Member of Venture. No assignee of an Interest of a
Member of Venture may become a Member of Venture without the written
consent of a Majority-In-Interest of the Members; provided, however,
that there shall be no dilution of the aggregate Interest in the
Venture held by Disadvantaged Business Enterprises as defined in PMD
No. 000036 specifications referred to in Section 1.6 hereof. No new
Members by virtue of any such assignment shall be entitled to any
retroactive allocation of Profits, Losses or expense deductions
incurred by Venture. Manager, at the time any new Member is admitted,
may close the Venture books (as though Venture's tax year had ended) or
make pro rata allocations of Profits, Losses, income and expense
deductions to such new Member for that portion of the Venture's tax
year in which such new Member was admitted in
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accordance with the provisions of Section 706(d) of the Code and the
Regulations promulgated thereunder.
8.2. If any Member is in default of any provision hereof and such
default is not cured within 10 days of a written notice of such
default, such Member may be removed by the affirmative vote of the
Majority-In-Interest, excluding the interest of the Member in default.
9. DISSOLUTION AND TERMINATION.
9.1. DISSOLUTION.
(a) Venture shall be dissolved or terminated upon the
occurrence of any of the following events:
(i) By the unanimous written agreement of all
Members;
(ii) Upon the entry of a decree of dissolution by any
court having jurisdiction;
(iii) Upon the acquisition by one Party or entity of
a 100% Capital Interest; or
(iv) Upon any other Withdrawal Event, unless the
business of Venture is continued by the specific
consent of a Majority-In-Interest of the remaining
Members given with 90 days after such event and there
are at least 2 remaining Members.
(v) As soon as possible following the occurrence of
any Withdrawal Event, if Venture is not continued, a
representative of the Venture shall execute and file
such documents as may be required by law to reflect
such dissolution or termination.
9.2. EFFECT OF FILING OF DISSOLVING STATEMENT. Upon the dissolution or
termination of Venture, it shall cease to carry on its business, except
insofar as may be necessary for the winding up of its business, but its
separate existence shall continue until termination documents or
actions have been filed or taken as required by Florida law or until a
decree dissolving or terminating Venture has been entered by a court of
competent jurisdiction.
9.3. WINDING UP. LIQUIDATION AND DISTRIBUTION OF ASSETS.
(a) Upon dissolution of Venture, an accounting shall be made
by Venture's independent accountants of the accounts of
Venture and of Venture's assets, liabilities and operations,
from the date of the last previous accounting until the date
of dissolution. Manager immediately shall proceed to wind up
the affairs of Venture.
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(b) If Venture is to be dissolved or terminated and its
affairs are to be wound up, Manager shall (1) sell or
otherwise liquidate all of Venture's assets as promptly as
practicable (except to the extent Manager may determine to
distribute any assets to Members in kind); (2) allocate any
Losses resulting from such sales to Members' Capital Accounts
in accordance with their respective Capital Interests; (3)
allocate all Profits resulting from such sales among the
Members Capital Accounts in accordance with their respective
Capital Interests; (4) discharge all liabilities of Members
(other than liabilities to Members), including all costs
relating to the dissolution, winding up, and liquidation and
distribution of assets; (5) establish such reserves as
reasonably may be necessary to provide for contingent
liabilities of Venture (for purposes of determining the
Capital Accounts of Members, the amounts of such reserves
shall be deemed to be an expense of Venture); (6) discharge
any liabilities of Venture to Members other than on account of
their interests in Venture capital or Profits; and (7)
distribute the remaining assets in the following order:
(i) If any assets of the Venture are to be
distributed in kind, the net fair market value of
such assets as of the date of dissolution shall be
determined by independent appraisal or by agreement
of Members. Such assets shall be deemed to have been
sold as of the date of dissolution for their fair
market value, and the Capital Accounts of Members
shall be adjusted pursuant to the provisions of this
Agreement to reflect such deemed sale.
(ii) The positive balance of each Member's Capital
Account as determined after taking into account all
Capital Account adjustments for Venture's taxable
year during which the liquidation occurs, shall be
distributed to Members, either in cash or in kind, as
determined by Manager, with any assets distributed in
kind being valued for this purpose at their fair
market value as determined pursuant to Section
9.3(b)(i) hereof. Any such distributions to Members
in respect of their Capital Accounts shall be made in
accordance with the time requirements set forth in
the Regulations.
(c) Upon completion of the winding up, liquidation and
distribution of assets, Venture shall be deemed terminated.
(d) Manager shall comply with any applicable requirements of
applicable law pertaining to the winding up of the affairs of
Venture and the final distribution of its assets.
9.4. TERMINATION DOCUMENTATION. When all debts, liabilities and
obligations of Venture have been paid and discharged or adequate
provisions have been made therefor and all of the remaining property
and assets have been distributed to Members, an appropriate termination
document shall be executed and filed as required by law.
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9.5. RETURN OF CONTRIBUTION NONRECOURSE TO OTHER MEMBERS. Except as
provided by law, upon dissolution, each Member shall look solely to the
assets of Venture or the return of its capital contribution. If Venture
property remaining after the payment of discharge of the debts and
liabilities of Venture is insufficient to return the cash or other
property contribution to one or more Members, such Member or Members
shall have no recourse against any other Member.
10. MISCELLANEOUS PROVISIONS.
10.1. NOTICES. Any notice, demand, or communication required or
permitted to be given by any provision of this Agreement shall be
deemed to have been sufficiently given or served for all purposes if
delivered personally to the party or to an executive officer of the
party to whom it is directed or, if sent by registered or certified
mail, postage and charges prepaid, addressed to the Member's and/or
Venture's address, as appropriate, which is set forth in this
Agreement. Except as otherwise provided herein, any such notice shall
be deemed to be given 3 business days after the date on which it was
deposited in a regularly maintained receptacle for the deposit of
United States mail, addressed and sent as aforesaid.
10.2. BOOKS OF ACCOUNT AND RECORDS. Proper and complete records and
books of Venture shall be caused to be kept by Manager in which shall
be entered fully and accurately all transactions and other matters
relating to Venture's business in such detail and completeness as is
customary and usual for businesses of the type engaged in by Venture.
Such books and records shall be maintained as provided herein. The
books and records at all times shall be maintained at the principal
executive office of Venture and shall be open to the reasonable
inspection and examination of Members of their duly authorized
representatives during reasonable business hours.
10.3. APPLICATION OF FLORIDA LAW. This Agreement and its application
and interpretation shall be governed exclusively by its terms and by
the laws of the State of Florida.
10.4. WAIVER OF ACTION FOR PARTITION. Each Member irrevocably waives
during the term of Venture any right that it may have to maintain any
action for partition with respect to the property of Venture.
10.5. AMENDMENTS. This Agreement may not be amended except by the
unanimous written agreement of all Members.
10.6. EXECUTION OF ADDITIONAL INSTRUMENTS. Each Member hereby agrees to
execute such other and further statements of interest and holdings,
designations, powers of attorney and other instruments necessary to
comply with any applicable laws, rules or regulations.
10.7. CONSTRUCTION. Whenever the singular letter is used in this
Agreement and when required by the context, the same shall include the
plural, and the masculine gender shall
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include the feminine and neuter genders and vice versa; and the word
"person" or "party" shall include a corporation, firm, partnership,
proprietorship or other form of association.
10.8. HEADINGS. The headings in this Agreement are inserted for
convenience only and are no way intended to describe, interpret,
define, or limit the scope, extent or intent of this Agreement or any
provision hereof.
10.9. WAIVERS. The failure of any party to seek redress for violation
or to insist upon the strict performance of any covenant or condition
of the Agreement shall not prevent a subsequent act, which would have
originally constituted a violation, from having the effect of an
original violation.
10.10. RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies provided
by this Agreement are cumulative and the use of any one right or remedy
by any party shall not preclude or waive the right to use any or all
other remedies. Said rights and remedies are given in addition to any
other rights the parties may have by law, statute, ordinance or
otherwise.
10.11. SEVERABILITY. If any provision of this Agreement or the
application thereof to any person or circumstance shall be invalid,
illegal, or unenforceable to any extent, the remainder of this
Agreement and the application thereof shall not be affected and shall
not be enforceable to the fullest extent permitted by law.
10.12. HEIRS, SUCCESSORS AND ASSIGNS. Each and all of the covenants,
terms, provisions and agreements herein contained shall be binding upon
and inure to the benefit of the parties hereto and, to the extent
permitted by this Agreement, their respective heirs, legal
representatives, successors and assigns.
10.13. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
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MEMBERS: MANAGER:
GREYHOUND LEISURE SERVICES, GREYHOUND LEISURE SERVICES,
INC. INC.
By: /s/ X.X. Xxxxxx By: /s/ X.X. Xxxxxx
------------------------------- ---------------------------------
Name: X.X. Xxxxxx Name: X.X. Xxxxxx
----------------------------- -------------------------------
Title: President Title: President
---------------------------- ------------------------------
CENTURY DUTY FREE, INC. MEMBERS:
XXXXX X. XXXXXXX, INDIVIDUALLY
By: /s/ Xxxxxx Xxxx
-------------------------------
Name: Xxxxxx Xxxx /s/ Xxxxx X. Xxxxxxx
----------------------------- ------------------------------------
Title: President (Witness) /s/ Xxxxx X. Xxxxxx
---------------------------- ------------------------------------
(Witness) /s/
------------------------------------
MEDIA CONSULTANTS, INC. BAYSIDE COMPANY STORE, INC.
d/b/a BAYSIDE TO GO.
By: /s/ X.X. xx Xxxxxxxx By: /s/ Xxxxxx Xxx Xxxxxx
-------------------------------- ---------------------------------
Name: X.X. xx Xxxxxxxx Name: Xxxxxx Xxx Xxxxxx
------------------------------ -------------------------------
Title: President Title: President
----------------------------- ------------------------------
STATE OF FLORIDA
COUNTY OF DADE
Before me personally appeared X.X. Xxxxxx, Xxxxxx Xxxx, Xxxxx X. Xxxxxxx, Xxxxxx
Xxx Xxxxxx, and Xxxxx X. xx Xxxxxxxx, to me well-known and known to me to be the
persons who executed the foregoing instrument.
Witness my hand and official seal this ___ day of September, 1995.
--------------------------------------
Xxxxxxxx X. Xxxxxxxx
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EXHIBIT A
The Function of Minority Joint Venture Members is outlined as follows:
Xxxxx X. Xxxxxxx will serve as a resource to assist in the development of
business strategies with emphasis on superior organizational performance and a
proactive employee service philosophy. She will provide technical knowledge of
the operational processes of local government agencies, and will work to enhance
the public image of the Joint Venture in the Hispanic community through
continued participation in local and national Hispanic social and professional
organizations.
Bayside Company Store, Inc. d/b/a Bayside To Go will contribute its sales and
merchandising abilities, providing expertise in the creativity of new lines of
merchandise, store design, and training of African American and Caribbean
employees.
Century Duty Free, Inc. will oversee the design, construction management,
quality control, and construction of all airport facilities. Xxxxxx Xxxx of
Century Duty Free will be responsible for all improvements made to duty free
airport facilities during the term of the contract.
Media Consultants, Inc. will be responsible for many of the advertising
marketing and public relations programs for the Joint Venture. Under Xxxxx xx
Xxxxxxxx' direction the Joint Venture will create programs and profiles to
insure excellent customer penetration locally and elsewhere. In addition, Media,
Inc. will handle public relations as needed with Dade County and its government
organizations.
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EXHIBIT B
GLSI offers the following training opportunities to DBE Members:
o On the job training combined with executive training
o Sales and customer skills (90 days on the job training)
o Total Quality Management training
o Merchandising, visual merchandising (90 days on the job training)
o Supervisory skills and management (seminars at GLSI and with outside
resources)
o Office skills -- interviewing, hiring, training, motivating
employees, understanding M.I.S., accounting functions (90 days on the
job training plus outside seminars)
o Parent company training program from The Dial Corp
At the end of the training period a participant will have the option of
running one of the duty free stores at MIA.
During the training periods, the trainee will receive, in addition to its
percentage of income from profits, a salary commensurate with the positions
occupied and the pay scales in effect at the time.
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FIRST ADDENDUM TO THE JOINT VENTURE AGREEMENT
This First Addendum to Joint Venture Agreement ("First Addendum") is
made as of this 25th day of October, 1995, by and among Greyhound Leisure
Services, Inc. ("GLSI"), Century Duty Free, Inc. ("Century"), Media Consultants,
Inc. ("Media"), Xxxxx X. Xxxxxxx ("Xxxxxxx"), and Bayside Company Store, Inc.
d/b/a Bayside to Go ("Bayside"), as the first addendum to the Joint Venture
Agreement between all parties dated as of August 31, 1995. Any capitalized terms
shall have the same meanings as assigned to them in the Agreement.
1. AMENDMENT OF SECTION 3.2(d). The fourth sentence of subparagraph (d)
is deleted, and the following sentence is inserted in lieu thereof:
"If the Members cannot agree on a decision, then the issue shall be
decided by arbitration in accordance with Section 3.2(e). The decision
of the arbitrator shall be binding on the members of the Management
Committee, the Members and the Venture."
2. ARBITRATION. The following provision is added to the Agreement as
subparagraph (e) of Section 3.2:
"(e) If arbitration is required to resolve an issue which the Members
are unable to decide by consensus pursuant to Section 3.2(d), then any
Member may refer the issue for arbitration. The referral shall be made
to the Miami, Florida office of the American Arbitration Association
("AAA"). The Member(s) requesting arbitration shall request that the
AAA appoint a single arbitrator, within five (5) working days from the
date of the request, who is an individual with at least ten (10) years
of experience in operation of airport retail concessions. The
arbitrator shall exert reasonable efforts to schedule the arbitration
hearing within thirty (30) days after the date of his or her
appointment, and shall act with a view to resolving the matter as
expeditiously as possible. The arbitration shall otherwise be in
accordance with the Commercial Arbitration Rules of the AAA. The costs
of the arbitration shall be paid by the Venture, although each Member
shall be responsible for the fees and costs incurred in retaining
counsel (if any) to represent the Member in the arbitration. An award
rendered in connection with an arbitration pursuant to this Section
shall be final and binding and judgment upon such an award may be
entered and enforced in any court of competent jurisdiction."
IN WITNESS WHEREOF, the Members have caused this First Addendum to be executed
as of the date first set forth above.
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MEMBERS: MANAGER:
GREYHOUND LEISURE SERVICES, GREYHOUND LEISURE SERVICES,
INC. INC.
By: /s/ X.X. Xxxxxx By: /s/ X.X. Xxxxxx
------------------------------- ---------------------------------
Name: X.X. Xxxxxx Name: X.X. Xxxxxx
----------------------------- -------------------------------
Title: President & CEO Title: President & CEO
---------------------------- ------------------------------
CENTURY DUTY FREE, INC. MEMBERS:
XXXXX X. XXXXXXX, INDIVIDUALLY
By: /s/ Xxxxxx Xxxx
-------------------------------
Name: Xxxxxx Xxxx /s/ Xxxxx X. Argudine
----------------------------- ------------------------------------
Title: President (Witness) /s/ Xxxxx X. Xxxxxx
---------------------------- ------------------------------------
(Witness) /s/ ??????????????
------------------------------------
MEDIA CONSULTANTS, INC. BAYSIDE COMPANY STORE, INC.
d/b/a BAYSIDE TO GO.
By: /s/ X.X. xx Xxxxxxxx By: /s/ Xxxxxx Xxx Xxxxxx
-------------------------------- ---------------------------------
Name: X.X. xx Xxxxxxxx Name: Xxxxxx Xxx Xxxxxx
------------------------------ -------------------------------
Title: President Title: President
----------------------------- ------------------------------
STATE OF FLORIDA
COUNTY OF DADE
Before me personally appeared X.X. Xxxxxx, Xxxxxx Xxxx, Xxxxx X. Xxxxxxx, Xxxxxx
Xxx Xxxxxx, and Xxxxx X. xx Xxxxxxxx, to me well-known and known to me to be the
persons who executed the foregoing instrument.
Witness my hand and official seal this 25th day of October, 1995.
/s/ Xxxxxxxx X. Xxxxxxxx
--------------------------------------
Xxxxxxxx X. Xxxxxxxx
[SEAL OF THE NOTARY PUBLIC XXXXXXXX X. XXXXXXXX
OF THE STATE OF FLORIDA] My Commission CC393387
Expires Jul. 18, 1998
Bonded by HAI
800-422-1555
