EXHIBIT 3.7
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FORM OF OPERATING AGREEMENT
OF
EPIC RESORTS, LLC SUBSIDIARIES
Dated as of ______, 1998
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TABLE OF CONTENTS
Page
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1. FORMATION AND GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.1 Formation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.2 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.3 Defined Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
2. TERM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
3. PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
4. PRINCIPAL OFFICE; REGISTERED AGENT AND REGISTERED OFFICE. . . . . . . . . . . .1
4.1 Principal Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
4.2 Registered Agent and Registered Office . . . . . . . . . . . . . . . . . .2
5. FICTITIOUS BUSINESS NAME STATEMENT; OTHER CERTIFICATES. . . . . . . . . . . . .2
6. CONTRIBUTIONS AND MEMBERSHIP INTEREST . . . . . . . . . . . . . . . . . . . . .2
6.1 Initial Capital. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
6.2 Additional Members . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
7. MANAGEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
7.1 Management by Member . . . . . . . . . . . . . . . . . . . . . . . . . . .2
7.2 Officers of the Company. . . . . . . . . . . . . . . . . . . . . . . . . .4
7.3 Duties of the Officers . . . . . . . . . . . . . . . . . . . . . . . . . .4
7.4 Standard of Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
8. PROFIT AND LOSS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
9. DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
9.1 Limitation on Distributions. . . . . . . . . . . . . . . . . . . . . . . .6
9.2 Distributions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
10. COMPANY EXPENSES; RESERVES. . . . . . . . . . . . . . . . . . . . . . . . . . .6
10.1 Company Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
10.2 Reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
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11. DISSOLUTION AND TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . .6
11.1 Time for Dissolution . . . . . . . . . . . . . . . . . . . . . . . . . . .6
11.2 No Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
11.3 Disposition of Assets Upon Dissolution . . . . . . . . . . . . . . . . . .7
12. ACCOUNTING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
12.1 Fiscal Year. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
12.2 Books and Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
12.3 Tax Returns and Elections. . . . . . . . . . . . . . . . . . . . . . . . .7
13. BANK ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
14. POWER OF ATTORNEY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
15. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
16. DEFINED TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
16.1 Defined Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
16.2 Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
16.3 Additional Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
17. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
17.1 Binding Effect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
17.2 Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
17.3 Applicable Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
17.4 Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
17.5 Gender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
17.6 Legal Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . .9
17.7 This Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
17.8 Non-Exclusive Remedies. . . . . . . . . . . . . . . . . . . . . . . . . 10
17.9 No Third Party Beneficiary Rights . . . . . . . . . . . . . . . . . . . 10
17.10 Exhibits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
17.11 Language. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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OPERATING AGREEMENT
OF
EPIC RESORTS - WESTPARK RESORT, LLC
Dated as of July 7, 1998
This OPERATING AGREEMENT (the "Agreement") is made and entered into
effective as of the 7th day of July, 1998, by Epic Resorts, LLC (the "Member")
and Epic Resorts - Westpark Resort, LLC (the "Company").
1. FORMATION AND GENERAL
1.1 FORMATION. The Member has formed the Company as a limited liability
company pursuant to the Delaware Limited Liability Company Act (the "Act").
1.2 NAME. The name of the Company shall for all purposes be "Epic Resorts
- Westpark Resort, LLC." The Member may change the name of the Company or adopt
such trade or fictitious names as it may determine is appropriate.
1.3 DEFINED TERMS. Reference is hereby made to SECTION 16 of this
Agreement for the definition of certain capitalized terms used herein.
2. TERM
The term of the Company commenced on the date of filing and recording of
the Certificate of Formation with the appropriate Delaware authorities, as
required by the Act, and shall continue until terminated as provided in
SECTION 11.
3. PURPOSE
The purpose and business of the Company shall be to engage in any lawful
act or activity for which limited liability companies may be organized under the
Act.
4. PRINCIPAL OFFICE; REGISTERED AGENT AND REGISTERED
OFFICE
4.1 PRINCIPAL OFFICE. The principal office and place of business of the
Company shall be located at 0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxx xx Xxxxxxx,
Xxxxxxxxxxxx 00000. The Member may from time to time change such principal
office and place of business or may change or establish such additional offices
or places of business of the Company as it may deem necessary or appropriate.
4.2 REGISTERED AGENT AND REGISTERED OFFICE. The name of the Company's
initial registered agent for service of process in Delaware shall be CT
Corporation and the address of the initial registered office and initial
registered agent shall be 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx,
Xxxxxxxx 00000.
5. FICTITIOUS BUSINESS NAME STATEMENT; OTHER CERTIFICATES
The Member shall, from time to time, register the Company as a foreign
limited liability company and file such fictitious or trade name statements or
certificates in such jurisdictions and offices as the Member considers necessary
or appropriate. The Company may do business under any fictitious business names
deemed desirable by the Member. The Member shall, from time to time, file or
cause to be filed such certificates of amendment, certificates of cancellation,
or other certificates as it reasonably deems necessary under the Act or under
the laws of any jurisdiction in which the Company is doing business to establish
and continue the Company as a limited liability company or to protect the
limited liability of the Member.
6. CONTRIBUTIONS AND MEMBERSHIP INTEREST
6.1 INITIAL CAPITAL. Upon the formation of the Company, the Member has
made such initial capital contribution to the Company as it deemed appropriate
in consideration for 100% of the membership interests in the Company.
6.2 ADDITIONAL MEMBERS. The Company shall be a single member limited
liability company unless and until additional members are admitted, in which
event this Agreement shall be appropriately amended.
7. MANAGEMENT
7.1 MANAGEMENT BY MEMBER. The management of the affairs of the Company
shall be vested in the Member. The Member shall be solely responsible for the
management and operation of the Company's business, and shall have full,
exclusive and complete discretion in the management and control of the affairs
of the Company and the Company's business for the purposes set forth in SECTION
3. The power and authority of the Member to make decisions with respect to the
business and affairs of the Company and to take such action for and on behalf of
the Company as it deems necessary or appropriate to enable the Company to carry
out its purposes as set forth herein, shall include without limitation, full and
complete power to, and the Member is expressly authorized on behalf of the
Company to:
(a) perform any and all acts necessary or appropriate to the improvement,
management and operation of the Business;
(b) commence, defend or settle any or all litigation, arbitration or other
proceedings regarding the Company, or any aspect thereof;
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(c) establish bank accounts in which shall be deposited Company funds and
from which payments shall be made;
(d) purchase contracts of liability, casualty, title, errors and omissions
and other insurance which the Member in its sole discretion deems necessary or
advisable for the protection of the assets and affairs of the Company or for any
purpose convenient or beneficial to the Company;
(e) take and hold all property of the Company (real, personal and mixed)
in the Company name, or in the name of a nominee, trustee or agent of the
Company;
(f) lease, sell, mortgage, pledge, assign, exchange, transfer or otherwise
dispose of all or any portion of the Company's assets;
(g) borrow money, whether on a secured or unsecured basis, or refinance
any loan to the Company;
(h) execute and deliver on behalf of and in the name of the Company, or in
the name of a nominee of the Company, deeds, deeds of trust, deeds to secure
debt, notes, leases, subleases, mortgages, bills of sale, financing statements,
security agreements, easements and any and all other instruments necessary or
incidental to the conduct of the Company's business and financing thereof;
(i) contract for and coordinate all accounting and clerical functions of
the Company and employ such accountants, lawyers, and other management or
service personnel as may from time to time be required to carry on the business
of the Company;
(j) collect all revenue accruing to the Company and to pay all
indebtedness and other obligations of the Company and costs of operation and
maintenance of the assets of the Company;
(k) pay all taxes, assessments, rents and other impositions applicable to
the assets of the Company and undertake when appropriate any action or
proceeding seeking to reduce such taxes, assessments, rents or other
impositions;
(l) prepare, or have prepared, and file all tax returns for the Company;
(m) perform any and all other obligations provided elsewhere in this
Agreement to be performed by the Member; and
(n) otherwise provide for the management of the Company on such terms as
the Member shall determine in the exercise of its reasonable discretion.
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7.2 OFFICERS OF THE COMPANY.
(a) INITIAL OFFICERS / DUTIES. The initial Officers of the Company
shall be as follows:
OFFICERS
Xxxxxx X. Xxxxxxx - President
Xxxxx X. Xxxxxxxx - Secretary and Treasurer
The Company may have such additional Officers as are appointed, from time to
time, by the Member. Officers of the Company shall have such duties and
responsibilities as may be granted from time to time by the Board.
(b) TERMS OF SERVICE. Each Officer shall serve until the earlier of
his or her death, resignation or removal. An Officer may be removed at any time
by the Member. Any Officer may resign at any time by delivering his or her
written resignation to the Member.
7.3 DUTIES OF THE OFFICERS. In addition to obligations imposed by other
provisions of this Agreement, each Officer shall devote to the Company such time
as is reasonably necessary and its best efforts in carrying out the business of
the Company in order to accomplish its purposes. The Officers shall have the
authority, responsibilities and duties as are customary for officers holding
similar positions with respect to businesses conducted in corporate form and
such additional authority, responsibilities and duties as the Board may
delegate, from time to time, to the Officers. In addition, the Officers, on
behalf of the Company and at the expense of the Company, shall:
(a) execute, acknowledge and certify all documents and instruments
and take or cause to be taken all actions which may be necessary or appropriate
(i) for the continuation of the Company's valid existence as a limited liability
company under the laws of the State of Delaware and of each other jurisdiction
in which such existence is necessary to protect the limited liability of the
Member, (ii) to effectuate the provisions of this Agreement or (iii) to enable
the Company to conduct its business;
(b) to the extent reasonably deemed necessary or appropriate by the
Board, cause all persons dealing with the Company, the Board or any Officer,
agent or employee of the Company acting on behalf of the Company, to be aware of
the character of the Company as an Delaware limited liability company;
(c) conduct the affairs of the Company in compliance with the
applicable laws and in the best interests of the Company and of the Member;
(d) not permit the use of Company funds or assets for other than the
benefit of the Company and of the Member;
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(e) arrange for the preparation of all necessary informational
federal income tax forms on behalf of the Company and for the preparation and
filing of any and all state and local income and franchise tax returns required
to be filed by the Company;
(f) obtain and maintain on behalf of the Company such all-risk,
public liability, workmen's compensation, Officers' liability, fidelity, forgery
and other insurance, if any, as may be available on commercially reasonable
terms and as may be deemed necessary or appropriate by the Board;
(g) hold all Company property in the Company name or, in the case of
cash or cash equivalents, in one or more depository accounts as to which the
Company is a beneficial owner; and
(h) use reasonable efforts not to cause the Company to incur debts or
other liabilities obligations beyond the Company's ability to pay such
liabilities.
7.4 STANDARD OF CARE.
(a) The Member or any director, officer, partner, employee,
beneficiary, trustee or affiliate of the Member serving on behalf of the
Company, any Manager, and any Officer or employee of the Company in the
performance of his, her or its duties, shall be fully protected in relying in
good faith on information, opinions, reports, or statements, including financial
statements, books of account and other financial data, if prepared or presented
by: (i) one or more Officers or employees of the Company; or (ii) legal counsel,
public accountants, or other persons which he, she or it reasonably believes
have professional or expert competence.
(b) Neither the Member nor any director, officer, partner, employee,
beneficiary, trustee or affiliate of the Member serving on behalf of the
Company, nor any Manager thereof shall be liable for damages to the Company or
the Member with respect to claims relating to his, her or its conduct for or on
behalf of the Company, except that any of the foregoing persons shall be liable
to the Company for damages to the extent that it is proved by clear and
convincing evidence (i) that his, her or its conduct was not taken (A) in good
faith, (B) in a manner reasonably believed to be in or not opposed to the best
interests of the Company, or (C) with the care that an ordinarily prudent person
in a like position would use under similar circumstances; or (ii) with respect
to any criminal action, proceeding or investigation, he, she or it had no
reasonable cause to believe his or its conduct was unlawful.
8. PROFIT AND LOSS
All profits and losses of the Company shall be allocated to the Member and
treated as the profits and losses of the Member.
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9. DISTRIBUTIONS
9.1 LIMITATION ON DISTRIBUTIONS.
(a) The Company shall not make any distribution of cash, except to
the extent that the Company then has cash available in excess of the sum of
(i) amounts required to pay or make provision for all Company expenses, plus
(ii) all reserves that are considered necessary or appropriate by the Member.
To the extent that the Member reasonably foresees that the Company will receive
cash or other consideration to satisfy liabilities not yet due and payable, the
Company shall not be required to establish reserves or make other provision to
satisfy such liabilities prior to making distributions under this SECTION 9.
(b) Distributions of cash shall only be made to the extent cash is
available to the Company without requiring (i) the sale of Company assets or the
pledge of Company assets at a time or on terms that the Member believes are not
in the best interests of the Company or (ii) a reduction in reserves that the
Board believes are necessary or desirable for working capital or other Company
purposes.
(c) Anything in this Agreement to the contrary notwithstanding, the
Company shall not make any distribution of cash or other property to the Member
pursuant to any provision of this Agreement if such distribution would be in
violation of any loan or credit agreement to which the Company is a party or by
which it is bound.
9.2 DISTRIBUTIONS. Subject to SECTION 9.1, prior to the commencement of
liquidation and winding up, the Member may, in its sole discretion, make
distributions of cash to the Member.
10. COMPANY EXPENSES; RESERVES
10.1 COMPANY EXPENSES. The Company shall be responsible for paying all
costs and expenses of acquiring, holding, owning, financing, selling, improving,
maintaining and operating the business. In the event any such costs and
expenses are or have been paid by the Member on behalf of the Company, then the
Member shall be entitled to be reimbursed for such payment or expense as long as
such payment is reasonably necessary for Company business and is reasonable in
amount.
10.2 RESERVES. The Company shall endeavor to maintain cash reserves for
operating expenses, capital expenditures, repairs, replacements and
contingencies and related items in such amounts as the Member in its sole
discretion deems necessary or advisable.
11. DISSOLUTION AND TERMINATION
11.1 TIME FOR DISSOLUTION. The Company shall be dissolved and its business
wound up, upon the earliest to occur of:
(a) the Member's determination that the Company should be dissolved;
or
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(b) the sale of all or substantially all of the Company's assets.
11.2 NO RELEASE. It is understood and agreed that the dissolution of the
Company shall not release or relieve any party hereto of its obligations under
this Agreement.
11.3 DISPOSITION OF ASSETS UPON DISSOLUTION. Upon any dissolution of the
Company, the Member shall take full account of the Company assets and
liabilities, shall liquidate the assets as promptly as is consistent with
obtaining the fair value thereof and the proceeds from such liquidation shall be
distributed, or the assets distributed in kind if the Member so elects, to the
Member. Notwithstanding the foregoing, if the Member determines that an
immediate sale or disposition of part or all of the Company assets would cause
undue loss to the Member, the Member, in order to avoid such loss, may, after
having given notification to the Member, either defer liquidation of and
withhold from distribution for a period determined by it any assets of the
Company except those necessary to satisfy the Company's debts and obligations,
or distribute the assets to the Member in kind.
12. ACCOUNTING
12.1 FISCAL YEAR. The fiscal year of the Company shall be the calendar
year.
12.2 BOOKS AND RECORDS. The Officers shall keep, or cause to be kept, full
and accurate records of all transactions of the Company. All of the books of
account of the Company shall, at all times, be maintained in the principal
office of the Company, and shall be open during reasonable business hours for
the reasonable inspection and examination by the Member or its authorized
representatives, who shall have the right to make copies thereof.
12.3 TAX RETURNS AND ELECTIONS. The Officers shall take such steps, if
any, as may be necessary to cause the Company to be disregarded as a separate
entity for federal income tax purposes pursuant to Treasury Regulation
301.7701-3, or any successor regulation. If the Company is required to file
a federal income tax return, the Officers shall prepare, or cause to be
prepared, a federal income tax return for the Company; and, in connection
therewith, make any appropriate or necessary elections, including elections
with respect to the useful lives of the properties of the Company and the
rates of depreciation or cost recovery on such properties.
13. BANK ACCOUNTS
The officers may open and maintain one or more bank accounts in the name
of the Company in which shall be deposited all funds of the Company.
Withdrawals from such account or accounts shall be made only in accordance
with this Agreement upon the signature or signatures of the President and
Chief Financial Officer. Funds of the Company shall not be commingled with
funds of any other person or entity. Notwithstanding the foregoing, the
operating revenues of the Company, capital contributions, and the proceeds of
any loan obtained by the Company may be deposited in a central account in the
name of an entity affiliated with the
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Company so long as separate entries are made on the books and records of the
Company and on the books and records of such other entity reflecting that
deposits in the bank account of such entity with respect to amounts received
from the Company have been deposited therein for the account of the Company
and that withdrawals from such bank account have been made for the purpose of
disbursing funds to the Company or for the purpose of paying costs, expenses
or liabilities of the Company.
14. POWER OF ATTORNEY
The Member hereby irrevocably makes, constitutes and appoints Xxxxxx X.
Xxxxxxx and Xxxxx X. Xxxxxxxx as its true and lawful attorney(s), in its name,
place and stead, to make, sign, execute, endorse, negotiate, consent to,
deliver, acknowledge, swear to, file and record with respect to the Company such
documents, applications or certificates required to qualify to do business in
any jurisdiction where such qualification is deemed reasonably necessary by the
Board of Managers.
15. NOTICES
Whenever any notice is required or permitted to be given under any
provision of this Agreement, such notice shall be in writing, signed by or on
behalf of the person giving the notice, and shall be given by (a) personal
delivery, (b) facsimile or other telecommunication method (with confirmation of
receipt), (c) overnight courier service, or (d) certified mail, postage prepaid,
return receipt requested, addressed to the person or persons to whom such notice
is to be given at the address set forth opposite such Person's signature to this
Agreement, or as changed by means of a written notice to the Company given in
the manner required by this Section 15. All notices shall be deemed given when
received (refusal of delivery or the failure to receive delivery for any other
reason which is within the control of the person to whom the notice or
communication is addressed shall constitute receipt).
16. DEFINED TERMS
16.1. DEFINED TERMS. As used in this Agreement, the following terms
have the following respective meanings, unless the context clearly requires
otherwise:
"ACT": As defined in SECTION 1.1 hereof.
"AFFILIATE": With regard to any person, any person which controls, is
controlled by or is under common control with such person. As used herein, the
term "CONTROL", "CONTROLLED BY" and "UNDER COMMON CONTROL WITH" shall include
the ownership of ten percent (10%) or more of the beneficial interest in the
person referred to.
"AGREEMENT": This Operating Agreement as amended from time to time,
together with the exhibits attached hereto.
"BANKRUPT": A person or entity shall be deemed to be "Bankrupt"
when such person or entity files a petition in bankruptcy, or voluntarily
takes advantage of any bankruptcy or
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insolvency law, or is adjudicated a bankrupt, or when a petition or answer is
filed proposing the adjudication of such person or entity as a bankrupt and
such person or entity either consents to the filing thereof or such petition
or answer is not discharged or denied prior to the expiration of ninety (90)
days from the date of such filing.
"CODE": The Internal Revenue Code of 1986, as amended.
"COMPANY": The limited liability company created for the purpose and
upon the terms and conditions set forth in this Agreement.
"MEMBER": Epic Resorts, LLC and its successors and assigns
"TREASURY REGULATION": The temporary or final regulation(s)
promulgated pursuant to the Code by the U.S. Department of the Treasury, as
amended, and any successor regulation(s).
16.2. ACCOUNTING TERMS. Except as otherwise specifically provided
herein, all terms herein which relate to accounting matters shall be interpreted
in accordance with generally accepted accounting principles.
16.3. ADDITIONAL TERMS. Capitalized terms used in this Agreement and
not defined in SECTION 16.1 hereof shall (unless otherwise expressly provided
herein) have the meanings assigned to them in other portions of this Agreement.
17. MISCELLANEOUS
17.1 BINDING EFFECT. Except as herein otherwise provided to the contrary,
this Agreement shall be binding upon and inure to the benefit of the parties
hereto, their successors and assigns.
17.2 AMENDMENTS. No amendment, modification or waiver of this Agreement,
or any part hereof, shall be valid or effective unless in writing and signed by
the Member.
17.3 APPLICABLE LAWS. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
17.4 CONSTRUCTION. The headings and titles of the Sections, Sub-sections
and Paragraphs herein have been inserted as a matter of convenience of reference
only and shall not control or affect the meaning or construction of any of the
terms or provisions herein.
17.5 GENDER. Whenever the context shall so require, all words herein in
any gender shall be deemed to include the masculine, feminine, or neuter gender,
and all singular words shall include the plural, and all plural words shall
include the singular.
17.6 LEGAL CONSTRUCTION. In case any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof and this
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Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein. Furthermore, in lieu of each such
illegal, invalid or unenforceable provision there shall be added
automatically as part of this Agreement a provision as similar in terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
17.7 THIS AGREEMENT. The words "herein," "hereof," "hereunder," "hereby,"
"this Agreement" and other similar reference shall be construed to mean and
include this Agreement and all amendments hereof and supplements hereto unless
the context should clearly indicate or require otherwise.
17.8 NON-EXCLUSIVE REMEDIES. Except as otherwise provided herein, no
remedy herein conferred or reserved is intended to be exclusive of any other
available remedy or remedies, and each and every such remedy shall be cumulative
and shall be in addition to every such remedy given under this Agreement or now
or hereafter existing at law or in equity or by statute. It is expressly
agreed that the remedy at law for breach by any of the parties for its
obligations hereunder is inadequate in view of the complexities and
uncertainties in measuring the actual damages which would be sustained by reason
of either party's failure to comply fully with each of such obligations.
Accordingly, the obligations of each party hereunder are expressly made
enforceable by specific performance.
17.9 NO THIRD PARTY BENEFICIARY RIGHTS. This Agreement is made solely and
specifically between and for the benefit of the parties hereto, and their
respective successors and assigns, subject to the express provisions hereof
relating to successors and assigns, and no other person, individual, corporation
or entity, whatsoever, shall have any rights, interests or claims hereunder or
be entitled to any benefits under or on account of this Agreement as a third
party beneficiary or otherwise.
17.10 EXHIBITS. All exhibits, attachments, annexed instruments and
addenda referred to herein shall be considered a part of this Agreement as fully
as if and with the same force and effect as if such exhibit, attachment, annex
or addendum had been included herein in full.
17.11 LANGUAGE. The language used in this Agreement shall be deemed to
be the language chosen by the parties to express their mutual intent, and no
rule of strict construction shall be applied against any party.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
EPIC RESORTS, LLC
By: Epic Membership Corp.
Managing Member
---------------------------------
By:
Its:
Address: 0000 Xxxxx Xxxxxx
Xxxxx 000
Xxxx xx Xxxxxxx, XX 00000
(000) 000-0000
[SUBSIDIARY LLC]
By: ------------------------------
Name:
Its:
Address: 0000 Xxxxx Xxxxxx
Xxxxx 000
Xxxx xx Xxxxxxx, XX 00000
(000) 000-0000
11
