As filed with the Securities and Exchange Commission on May 6, 1997
Registration No. ____________
_____________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
FORM S-11
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________
Pre-Effective Amendment No. 1
133 HOTEL CONDOMINIUM UNITS TO BE BUILT IN TWO PHASES WITH
MANDATORY (IF THE UNIT IS TO BE RENTED) RENTAL POOL
AT THE
WILDERNESS HOTEL & RESORT
Wilderness Development Corporation
(Exact name of registrant as specified in governing instrument)
511 E. Adams Street
Wisconsin Dells, WI 53965
(608) 253-9729
(Address of principal executive offices)
Thomas J. Lucke
511 E. Adams Street
Wisconsin Dells, WI 53965
(Name and address of agent for service)
Copy to:
Timothy C. Sweeney, Esq.
Patrick S. Sweeney, Esq.
Sweeney & Sweeney, S.C.
440 Science Drive, 4th Floor
Madison, WI 53711
(608) 238-4444
_______________________
Approximate date of commencement of proposed sale to the public: As soon
as practicable after this Registration Statement becomes effective.
The registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that
this registration statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until the
registration statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine. If the
filing fee is calculated pursuant to Rule 457(o) under the Securities Act,
only the title of the class of securities to be registered, the proposed
maximum aggregate offering price for that class of securities and the
amount of registration fee need to appear in the Calculation of
Registration Fee table. Any difference between the dollar amount of
securities registered for such offerings and the dollar amount of
securities sold may be carried forward on a future registration statement
pursuant to Rule 429 under the Securities Act.
PHASE I
Title of
Each Class Proposed
of Average Proposed
Securities Amount Of Offering Maximum Amount of
Being Units Being Price Aggregate Registration
Registered Registered Per Unit* Offering Price Fee
Hotel 61 138,999.00 8,478,900.00 $2,543.70
Condominium
Units
PHASE II
Title of
Each Class Proposed Proposed
of Average Maximum
Securities Amount Of Offering Aggregate Amount of
Being Units Being Price Offering Registration
Registered Registered Per Unit* Price Fee
Hotel 72 145,956.00 10,508,800.00 $3,152.61
Condominium
Units
TOTAL COMBINED PHASES
Title of Each Proposed Proposed Amount of
Class Amount Of Average Maximum Registration
of Securities Units Being Offering Aggregate Fee
Being Registered Price Offering
Registered Per Unit* Price
Hotel 133 142,764.66 18,987,700.00 $5,696.31
Condominium
Units
* These prices represent an arithmetic average of the maximum Offering
price for each type of Unit offered; i.e., Units range in price from
$114,900.00 to $207,900.00 (see breakdown of Unit prices pages 20 and 21).
__________________________
<PAGE>
INDEX TO EXHIBITS
TO
REGISTRATION STATEMENT
OF WILDERNESS DEVELOPMENT CORPORATION
Page Number In
Sequentially
Numbered
Exhibit Title Document
The Security
4-A Draft Wilderness Hotel Condominium Construction
and Sales Agreement . . . . . . . . . . . . . . . . . . . . . . . .
4-B Rental Pooling and Agency Agreement . . . . . . . . . . . . . . . .
4-C Preliminary Price List . . . . . . . . . . . . . . . . . . . . . .
The Condominium Documents
10-A Draft Condominium Declaration for Wilderness
Hotel Condominium Association, Inc. . . . . . . . . . . . . . . . .
10-B Draft Articles of Incorporation of Wilderness
Hotel Condominium Association, Inc. . . . . . . . . . . . . . . . .
10-C Draft Bylaws of Wilderness Hotel Condominium
Association, Inc. . . . . . . . . . . . . . . . . . . . . . . . . .
The Registrant
3-A Articles of Incorporation of Wilderness
Development Corporation . . . . . . . . . . . . . . . . . . . . . .
3-B Bylaws of Wilderness Development Corporation . . . . . . . . . . . .
3-C Organizational Consent of Directors . . . . . . . . . . . . . . . .
Material Contracts and Agreements
10-D Draft Management and Use Agreement between the
Association and Wilderness Hotel & Resort, Inc. . . . . . . . . . .
10-E Use and Access Agreement between Owners,
Registrant, Wilderness Resort & Hotel, Inc.,
Wild Golf, Inc. and Tom and Terri Lucke . . . . . . . . . . . . . .
Opinions
8 Tax Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Sales Materials
17 Unit Description . . . . . . . . . . . . . . . . . . . . . . . . . . .
18 Economic Model and Information . . . . . . . . . . . . . . . . . . . .
<PAGE>
WILDERNESS DEVELOPMENT CORPORATION
(A Development Stage Corporation)
Wisconsin Dells, Wisconsin
FINANCIAL STATEMENT
February 28, 1997
TABLE OF CONTENTS
PAGE
INDEPENDENT AUDITOR'S REPORT . . . . . . . . . . . . . . . 1
FINANCIAL STATEMENT
Balance Sheet . . . . . . . . . . . . . . . . . . . . . . 2
Summary of Significant Accounting Policies . . . . . . . 3
Notes to Financial Statement . . . . . . . . . . . . . . 4
<PAGE>
Clifton Gunderson L.L.C.
Certified Public Accounting & Consultants
Independent Auditor's Report
The Stockholders
Wilderness Development Corporation
(A Development Stage Corporation)
Wisconsin Dells, Wisconsin
We have audited the accompanying balance sheet of Wilderness Development
Corporation, as of February 28, 1997. This financial statement is the
responsibility of the corporation's management. Our responsibility is to
express an opinion on this financial statement based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the balance sheet is free of
material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the balance sheet. An
audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the
overall balance sheet presentation. We believe that our audit provides a
reasonable basis for our opinion.
In our opinion, the balance sheet referred to above presents fairly, in
all material respects, the financial position of Wilderness Development
Corporation as of February 28, 1997, in conformity with generally accepted
accounting principles.
CLIFTON GUNDERSON L.L.C.
Madison, Wisconsin
March 11, 1997
<PAGE>
WILDERNESS DEVELOPMENT CORPORATION
(A Development Stage Corporation)
BALANCE SHEET
February 28, 1997
ASSETS
Cash $874
Development costs in process - design and
feasibility 108,826
Development costs in process -
offering costs 116,450
Organization costs, less accumulated
amorization of $333 3,667
--------
TOTAL ASSETS $229,817
========
LIABILITIES AND STOCKHOLDERS' EQUITY
LIABILITIES
Notes payable $212,744
Accounts payable 30,357
Accrued interest 8,037
--------
Total liabilities 251,138
--------
STOCKHOLDERS' EQUITY
Common stock, 9,000 shares of $.10 par value
authorized; 562.50 shares issued and
outstanding 56
Additional paid-in capital 507
Deficit accumulated during the
development stage (21,884)
--------
Total stockholders' equity (21,321)
--------
TOTAL LIABILITIES AND STOCKHOLDERS'
EQUITY $229,817
========
These financial statements should be read only in connection with
the summary of significant accounting policies and notes to
financial statement.
<PAGE>
WILDERNESS DEVELOPMENT CORPORATION
(A Development Stage Corporation)
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
February 28, 1997
Wilderness Development Corporation (A Wisconsin Corporation), was formed
in July, 1996. The corporation is developing condominiums in Wisconsin
Dells, WI. Significant accounting policies followed by the corporation
are presented below:
USE OF ESTIMATES IN PREPARING FINANCIAL STATEMENTS
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the
financial statements. Actual amounts could differ from those estimates.
ORGANIZATION COSTS
Costs incurred in organizing the corporation are amortized over five
years.
INCOME TAXES
The corporation has elected S corporation status under the provisions of
the tax code for both federal and state income taxation. As a result, the
taxable income and income tax credits are passed through to its
stockholders.
This information is an integral part of the accompanying financial
statement.
<PAGE>
WILDERNESS DEVELOPMENT CORPORATION
(A Development Stage Corporation)
NOTES TO FINANCIAL STATEMENT
February 28, 1997
NOTE 1 - DEVELOPMENT STAGE OPERATIONS
The corporation was formed July 25, 1996. Operations since that time have
consisted primarily of preparing documents for a security offering,
obtaining financing, land surveying, and architectural designing.
NOTE 2 - NOTE PAYABLE
The note is payable September 15, 1997 and bears interest at 9.75%. The
maximum credit available is $400,000. The note is secured by real estate
of a related entity.
This information is an integral part of the accompanying financial
statement.
<PAGE>
WILDERNESS HOTEL & RESORT, INC.
Wisconsin Dells, Wisconsin
FINANCIAL STATEMENTS
December 31, 1996
<PAGE>
TABLE OF CONTENTS
PAGE
ACCOUNTANT'S REPORT . . . . . . . . . . . . . . . . . . . . 1
FINANCIAL STATEMENTS (Unaudited)
Balance Sheet . . . . . . . . . . . . . . . . . . . . . . 2
Statement of Income . . . . . . . . . . . . . . . . . . . 3
Statement of Stockholders' Equity . . . . . . . . . . . . 4
Statement of Cash Flows . . . . . . . . . . . . . . . . . 5
Summary of Significant Accounting Policies . . . . . . . 7
Notes to Financial Statements . . . . . . . . . . . . . . 9
SUPPLEMENTAL INFORMATION (Unaudited) . . . . . . . . . . . 13
Direct Costs . . . . . . . . . . . . . . . . . . . . . . 14
Operating Expenses . . . . . . . . . . . . . . . . . . . 15
<PAGE>
Clifton Gunderson L.L.C.
Certified Public Accountants & Consultants
Accountant's Report
The Stockholders and
Board of Directors
Wilderness Hotel & Resort, Inc.
Wisconsin Dells, Wisconsin
We have compiled the accompanying unaudited balance sheet of Wilderness
Hotel & Resort, Inc., as of December 31, 1996, and the related statements
of income, stockholders' equity, and cash flow for the year then ended in
accordance with Statements on Standards for Accounting and Review Services
issued by the American Institute of Certified Public Accountants.
A compilation is limited to presenting in the form of financial statements
information that is the representation of management. We have not audited
or reviewed the accompanying financial statements and, accordingly, do not
express an opinion or any other form of assurance on them.
The supplemental information accompanying the financial statements is
presented only for additional analysis purposes. We have not audited or
reviewed the accompanying supplemental information and, accordingly, do
not express an opinion or any other form of assurance on such information.
CLIFTON GUNDERSON L.L.C.
Madison, Wisconsin
April 22, 1997
<PAGE>
WILDERNESS HOTEL & RESORT, INC.
BALANCE SHEET
December 31, 1996
(Unaudited)
ASSETS
CURRENT ASSETS
Cash $143,906
Accounts receivable 7,296
Prepaid expenses 23,835
Inventory 20,539
---------
Total current assets 195,576
---------
PROPERTY AND EQUIPMENT
Land 9,380
Land improvements 440,336
Buildings 5,521,229
Equipment and furnishings 1,139,368
Vehicles 25,894
Construction in process 39,200
---------
Total, at cost 7,175,407
Less accumulated depreciation (657,658)
---------
Net property and equipment 6,517,749
---------
OTHER ASSETS
Due from related parties 2,079,950
Loan costs, less amortization of $26,801 41,453
Goodwill, less accumulated amortization of
$13,333 86,667
Organization costs, less accumulated
amortization of $4,368 6,552
---------
Total other assets 2,214,622
TOTAL ASSETS $8,927,947
=========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Current portion of long-term debt $6,166,944
Accounts payable 44,013
Due to related party 60,000
Room deposits 113,875
Special assessments 6,454
Accrued expenses 0
Wages and related taxes 14,573
Sales and room taxes 21,847
Property taxes 105,227
Interest 189,132
---------
Total current liabilities 6,722,065
LONG-TERM DEBT less
current maturities 936,473
---------
Total liabilities 7,658,538
---------
STOCKHOLDERS' EQUITY
Common stock, 9,000 shares of $.10 par value
authorized; 1,076.93 shares issued and
outstanding 108
Less notes receivable for the purchase of
common stock (2,038,840)
Additional paid-in capital 3,549,892
Retained earnings (deficit) (241,751)
---------
Total stockholders' equity 1,269,409
---------
TOTAL LIABILITIES AND
STOCKHOLDERS' EQUITY $8,927,947
=========
These financial statements should be read only in connection with
the accompanying accountant's report, summary of significant
accounting policies, and notes to financial statements.
<PAGE>
WILDERNESS HOTEL & RESORT, INC.
STATEMENT OF INCOME
Year Ended December 31, 1996
(Unaudited)
REVENUE
Room $2,657,592
Telephone 16,362
Gift shop sales 117,705
Retreat sales 73,709
Pool bar sales 93,454
Vending sales 41,127
Miscellaneous 11,173
---------
Total revenue 3,011,122
DIRECT COSTS 1,075,050
---------
Gross profit 1,936,072
OPERATING EXPENSES 1,348,093
---------
Income from operations 587,979
OTHER INCOME (EXPENSE)
Interest income 91,514
Interest expense (672,445)
Other income 3,300
Gain on sale of property and equipment 20,538
---------
NET INCOME $30,886
=========
These financial statements should be read only in connection
with the accompanying accountant's report, summary of
significant accounting policies, and notes to financial
statements.
<PAGE>
<TABLE>
WILDERNESS HOTEL & RESORT, INC.
STATEMENT OF STOCKHOLDERS' EQUITY
Year Ended December 31, 1996
(Unaudited)
<CAPTION>
Notes Receivable
Number for the Retained
of Common Purchase of Paid-In Earnings
Shares Stock Common Stock Capital (Deficit) Total
<S> <C> <C> <C> <C> <C> <C>
BALANCE, JANUARY 1, 1996 1,000.00 $100 ($2,202,020) $3,399,900 $67,363 $1,265,343
Sale of common stock 76.93 8 0 149,992 0 150,000
Reduction in subscription
note receivable 0 0 163,180 0 0 163,180
Net income 0 0 0 0 30,886 30,886
Dividends 0 0 0 0 (340,000) (340,000)
--------- ------ ----------- ---------- --------- ----------
BALANCE, DECEMBER 31, 1996 1,076.93 $108 ($2,038,840) $3,549,892 ($241,751) $1,269,409
========= ====== =========== ========== ========= ==========
</TABLE>
These financial statements should be read only in connection with
the accompanying accountant's report, summary of significant accounting
policies, and notes to financial statements.
<PAGE>
WILDERNESS HOTEL & RESORT, INC.
STATEMENT OF CASH FLOWS
Year Ended December 31, 1996
(Unaudited)
CASH FLOWS FROM OPERATING ACTIVITIES
Cash received from customers $3,080,195
Cash paid to suppliers and employees (1,795,920)
Interest paid (483,314)
Interest received 91,514
--------
Net cash provided by operating activities 892,475
---------
CASH FLOWS FROM INVESTING ACTIVITIES
Acquisition of property and equipment (2,812,562)
---------
Net cash used in investing activities (2,812,562)
---------
CASH FLOWS FROM FINANCING ACTIVITIES
Loan proceeds 2,685,000
Loan costs (32,493)
Dividends paid (340,000)
Debt repayments (636,317)
Proceeds of related party receivables 210,500
Proceeds from sale of common stock 150,000
---------
Net cash provided by financing activities 2,036,690
---------
NET INCREASE IN CASH 116,603
CASH, BEGINNING OF YEAR 27,303
--------
CASH, END OF YEAR $143,906
========
NONCASH INVESTING AND FINANCING ACTIVITIES
The corporation transferred $2,338,062 in assets
and $316,600 in liabilities to a related
corporation in exchange for a note receivable of
$2,042,000.
The corporation combined $4,015,000 of an existing
mortgage into the new $6.3 million mortgage.
Payments of $163,180 on the stock subscription
receivable were applied as direct reductions to
the note payable to Dellview Resorts, Inc.
(Continued)
<PAGE>
WILDERNESS HOTEL & RESORT, INC.
STATEMENT OF CASH FLOWS
Year Ended December 31, 1996
(Unaudited)
RECONCILIATION OF NET INCOME TO NET CASH
PROVIDED BY OPERATING ACTIVITIES
Net income $30,886
Adjustment to reconcile net income to
net cash provided by operating activities:
Depreciation 456,151
Amortization 29,791
Gain on sale of property (20,538)
Net operating changes in:
Accounts receivable (4,122)
Prepaid expenses (9,825)
Accounts payable 50,133
Accrued expenses 297,430
Inventory (6,049)
Room deposits held 69,895
Special assessments (1,277)
NET CASH PROVIDED BY OPERATING
ACTIVITES $892,475
========
These financial statements should be read only in connection with the
accompanying accountant's report, summary of significant accounting
policies, and notes to financial statements.
<PAGE>
WILDERNESS HOTEL & RESORT, INC.
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
December 31, 1996
(Unaudited)
Wilderness Hotel & Resort, Inc. (a Wisconsin Corporation), was formed in
November, 1994. The corporation owns and manages a hotel operation in
Wisconsin Dells. Since the whole operation is one property, this
represents a concentration of risk. Significant accounting policies
followed by the corporation are presented below:
USE OF ESTIMATES IN PREPARING FINANCIAL STATEMENTS
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the
financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those
estimates.
ALLOWANCE FOR DOUBTFUL ACCOUNTS
The corporation considers accounts receivable to be fully collectible;
accordingly, no allowance for doubtful accounts is required.
INVENTORY
Inventory consists of resale items available for purchase by guests. The
inventory is reported at cost using the first in-first out method.
PROPERTY, DEPRECIATION, MAINTENANCE AND REPAIRS
Property and equipment are carried at cost. Depreciation is calculated
based on the estimated useful lives of the various assets in amounts
sufficient to relate the costs to the accounting periods benefited. The
property and equipment items are depreciated using accelerated methods.
Major additions, improvements and interest during construction periods are
charged to the property accounts while maintenance and repairs which do
not improve or extend the life of the respective assets are expensed
currently. When property is retired or otherwise disposed, the asset and
related accumulated depreciation is removed from the accounts. Any
recognized gain or loss is included in income.
LOAN COSTS
Costs incurred in obtaining financing are amortized over the term of the
loan.
GOODWILL
Goodwill, representing the excess of the cost over the fair market value
of the Dellview property at the date of acquisition, is amortized over a
period of 15 years.
INCORPORATION COSTS
The corporation incurred legal and accounting fees in its organization and
formation. These costs are amortized over a period of five years.
INCOME TAXES
The corporation has elected S corporation status under the provisions of
the tax code for both federal and state income taxation. As a result, the
taxable income and income tax credits are passed through to its
stockholders.
This information should be read only in connection
with the accompanying accountant's report.
<PAGE>
WILDERNESS HOTEL & RESORT, INC.
NOTES TO FINANCIAL STATEMENTS
December 31, 1996
(Unaudited)
NOTE 1 - PROPERTY AND EQUIPMENT
The estimated lives of property and equipment used for calculating
depreciation are as follows:
Life in Years
Buildings 39
Equipment and furnishings 5-7
Land improvements 15
NOTE 2 - LONG-TERM DEBT
Mortgage note payable to Bank of Wisconsin Dells with the
interest rate locked for two years at 9.75%. Thereafter,
the rate is locked for one year periods at 112.5 basis
points over New York prime. The payment terms are as
follows: a total annual payment of $823,280 consisting
of $225,000 and $275,000 of interest only due July 15 and
August 15, respectively and a principal and interest
payment of $323,280 due September 15. The loan is
renewable on an annual basis. The mortgage is secured by
all corporate property and equipment, assignment of lease
proceeds and rents, personal guaranty of the
stockholders, irrevocable unlimited guaranty from a
related entity, and a life insurance policy on a major
stockholder. The corporation is in violation of loan
covenants at December 31, 1996.
$6,100,000
Variable rate (10% at December 31, 1996) note payable
to Atlantis Hotel, Inc. (a related party), principal
is payable in $30,000 annual installments from 1997 to
1999, with any unpaid balance due September 10, 2000.
Interest payments are due quarterly. The note is
secured by all corporate property and equipment.
270,000
9.5.% note payable to GMAC, principal and interest are
payable monthly. The note is secured by a corporate
vehicle. 14,577
6% promissory notes payable to Dellview Resorts, Inc.
due December 31, 2004, secured by the personal guaranty
of the stockholders. 688,840
9.625%, $520,000 note payable to Bank of Wisconsin Dells,
principal of $52,000 and interest is payable annually
on September 10, with any unpaid balance due September 10,
2001. The note is secured by corporate real estate. As
of December 31, 1996, no money has been drawn on the note.
Unsecured promissory note payable to stockholder. $ 30,000
---------
Total notes payable 7,103,417
Less: Current maturities 6,166,944
---------
Long-term debt $ 936,473
=========
The following is a schedule by years of principal payments required under
the existing long-term debt.
Years ending December 31, 1997 $ 6,166,944
1998 37,633
1999 30,000
2000 180,000
2001 -
After 688,840
----------
Long-term debt $ 7,103,417
==========
The corporation's mortgage note with the Bank of Wisconsin Dells contains
various restrictive covenants including provision for insurance coverage,
indebtedness, capital investment, owner draws, and debt coverage.
NOTE 3 - RELATED PARTY TRANSACTIONS
Land Lease
The corporation leases land from a major stockholder. The lease requires
semi-annual payments of $39,000 due on June 30 and November 30. The lease
has an initial 9 year term expiring on November 30, 2003 with ten 9 year
renewal options.
Office Management and Consulting Services
The corporation pays Lucke Management, Inc. a fee for office and
administrative services. A stockholder of the corporation is the sole
owner of Lucke Management, Inc. The amount paid in 1996 for these
services was $33,000.
Due to Related Party
The corporation also entered into an agreement with Lucke Management, Inc.
to manage the operation for a one time fee of $100,000. The amount paid
in 1996 for these services was $40,000, with an additional amount due of
$60,000.
Notes Payable
The corporation owes $30,000 to a major shareholder at December 31, 1996.
The corporation owes $270,000 to Atlantis Hotel, Inc. (controlled by a
major shareholder) as of December 31, 1996.
Due from Related Parties
The amounts due the corporation from related parties at December 31, 1996
are as follows:
Wilbar, Inc. $ 202,050
Wild Golf, Inc. 1,876,900
Wilderness Development Corporation 437
Shareholders 563
---------
$ 2,079,950
=========
NOTE 4 - NOTES RECEIVABLE FOR THE PURCHASE OF COMMON STOCK
There are two notes receivable with the following terms:
A note receivable for the purchase of common stock bears
interest at 6%, is collateralized by 440 shares of the
corporation's common stock, and is due November 30, 1999. $ 1,350,000
A note receivable for the purchase of common stock bears
interest at 6%, collateralized by 225 shares of the
corporation's common stock, with 10% principal payments
annually and any unpaid balance due December 31, 2004. 688,840
---------
$ 2,038,840
=========
NOTE 5 - CAPITALIZED INTEREST
The total interest cost for 1996 is $708,328, of which $35,883 has been
capitalized as part of building costs. It represents the amount of
interest paid during the construction of an addition to the hotel.
This information should be read only in connection
with the accompanying accountant's report.
<PAGE>
SUPPLEMENTAL INFORMATION
WILDERNESS HOTEL & RESORT, INC.
DIRECT COSTS
Year Ended December 31, 1996
(Unaudited)
Cost of resale items $142,022
Laundry service 43,585
Housekeeping supplies 26,932
Telephone 36,230
Licenses and permits 1,500
Vending costs 1,745
Video/TV expense 2,460
Salaries/wages 542,766
Payroll taxes 65,026
Uniforms 4,094
Advertising 130,650
Postage 11,676
Charge card discounts 66,364
---------
$1,075,050
=========
This information should be read only in connection
with the accompanying accountant's report.
<PAGE>
WILDERNESS HOTEL & RESORT, INC.
OPERATING EXPENSES
Year Ended December 31, 1996
(Unaudited)
Salaries $37,420
Payroll taxes 3,233
Office expense 27,032
Office management 33,000
Land rent 78,000
Insurance 50,609
Professional fees 17,073
Entertainment 7,231
Bank service charges 39
Utilities 132,824
Property taxes 148,477
Repairs and maintenance 66,574
Travel 10,701
Vehicle expense 3,431
Supplies 133,004
Amortization 29,791
Depreciation 456,151
Wisconsin surcharge 466
Garbage removal 5,471
Consulting fees 100,000
Lease payments 7,480
Penalties 86
---------
$1,348,093
=========
This information should be read only in connection
with the accompanying accountant's report.
<PAGE
WILDERNESS HOTEL
CONSTRUCTION AND SALES AGREEMENT
GENERAL PROVISIONS The Buyer, ________________________________________,
offers to purchase the Property known as [Street Address] 511 East Adams
Street in the Village of Lake Delton, County of Sauk Wisconsin,
particularly described as Unit: of Wilderness Hotel Condominium,
Seller's undivided interest in the common elements appurtenant to the
Unit, together with and subject to the rights, interests, obligations and
limitations as set forth in the Registration Statement (see lines 200 to
203), Collateral Contracts (see lines 204 to 205) declaration and
condominium plat (and all amendments to them) creating the Condominium,
which altogether constitute the Property.
- PURCHASE PRICE: _____________________________________________ Dollars
($____________________).
- EARNEST MONEY of $________________________ in the form of a check
accompanies this Offer.
- THE BALANCE OF PURCHASE PRICE will be paid in cash or equivalent at
closing unless otherwise provided in this Offer.
- ADDITIONAL ITEMS INCLUDED IN PURCHASE PRICE: Seller shall include in the
purchase price and transfer free and clear of encumbrances: Seller's
interest in any common surplus and reserves of the condominium allocated
to the Unit; and all fixtures, as defined at lines 191 to 195 and as may
be in or on the Unit on the date of this Offer, unless excluded at lines
15 to 16 and the following additional items:
Hotel Condominium furnishings per the attached personal property list
- ITEMS NOT INCLUDED IN THE PURCHASE PRICE: N/A.
- PARKING: The parking for this Unit is: unassigned and pursuant to the
Use and Access Agreement (see lines 204 to 205).
- ASSOCIATION FEE: The association fee for this Unit is
$____________________ per _______________________________________.
- PROPERTY CONDITION REPRESENTATIONS: Seller represents to Buyer that as
of the date of acceptance Seller has no notice or knowledge of conditions
affecting the Property or transaction (as defined at lines 166 to 185).
The transfer of the Property is exempt by Wis. Stats. 709.01 from the
requirement to provide a Seller's Real Estate Condition Report, as the
Property is new construction and has not been inhabited.
- TIME IS OF THE ESSENCE as to: (1) Earnest money payment(s); (2) binding
acceptance; (3) occupancy; (4) date of closing; (5) delivery of
Condominium Disclosure Materials (see lines 85 to 90) and all other dates
and deadlines in this Offer.
OPTIONAL PROVISIONS AND ADDENDA
See lines 223 to 266 for optional provisions including contingencies.
ADDITIONAL PROVISIONS
- This Offer is subject to the terms, conditions, and restrictions of the
Registration Statement (see lines 200 to 203) and Collateral Contracts
(see lines 204 to 205), and Buyer acknowledges receipt thereof.
- The parties agree to be bound by the terms, conditions and restrictions
of the Registration Statement and Collateral Contracts, and execute the
same as required.
- Seller agrees to construct the Property as set forth in the Registration
Statement. Delivery of the Property will be made no later than two (2)
years after execution of this Hotel Condominium Construction and Sales
Agreement.
- Any rental of the Property must be pursuant to the Rental Pool Agreement
as further set forth in the Registration Statement which is consistent
with the design of the Property as a business investment in a hotel
condominium project located in a golf resort complex.
- At closing, Buyer shall pay three (3) months' Association fee in advance
to establish a reserve and the pro rata balance of the current quarter's
Association fees (billed quarterly in advance) due as of closing.
- The Seller reserves the right to cancel the Registration Statement, in
its sole discretion, if market conditions so dictate, and upon Seller's
cancellation of the Registration Statement, this Hotel Condominium
Construction and Sales Agreement shall be null and void and all earnest
money shall be returned to Buyer.
- Buyer shall have the right to cancel this Condominium Construction and
Sales Agreement, without penalty or obligation, within five (5) days from
the date of the execution hereof, pursuant to Section 703.33 of the
Wisconsin Statutes.
- Buyer acknowledges receipt of the Registration Statement.
ACCEPTANCE, DELIVERY AND RELATED PROVISIONS
- BINDING ACCEPTANCE: This Offer is binding upon both parties only if a
copy of the accepted Offer is delivered to Buyer on or before
__________________________________________. CAUTION: This Offer may be
withdrawn prior to delivery of the accepted Offer.
- DELIVERY OF DOCUMENTS AND WRITTEN NOTICES: Unless otherwise stated in
this Offer, delivery of documents and written notices to a party shall be
effective only when accomplished in any of the following ways:
(1) By depositing the document or written notice postage or fees prepaid
in the U.S. Mail or a commercial delivery system addressed to the party
at:
Seller: Wilderness Development Corporation, 511 East Adams Street,
Wisconsin Dells, WI 53965
With a Copy to: Sweeney & Sweeney, S.C., 440 Science Drive, Madison,
Wisconsin 53711 (608) 238-4444 fax: (608) 238-8262
Buyer: _______________________________________________________.
(2) By giving the document or written notice personally to the party;
(3) By electronically transmitting the document or written notice to the
following telephone number:
Buyer: ( ) __________________ Seller: Wilderness Development
Corporation (608) 254-4982
OCCUPANCY AND RELATED PROVISIONS
- OCCUPANCY of Property shall be given to Buyer at time of closing unless
otherwise provided in this Offer. At time of Buyer's occupancy, the Unit
and any limited common elements assigned exclusively to the Unit shall be
free of all debris and personal property except for personal property sold
to Buyer.
- RENTAL WEATHERIZATION: This transaction is exempt from State of
Wisconsin Rental Weatherization Standards (ILHR 67, Wisconsin
Administrative Code) as the Property is less than ten (10) years old.
- CLOSING: This transaction is to be closed at the Wilderness Hotel &
Resort, 511 East Adams Street, Wisconsin Dells, Wisconsin 53965 no later
than twenty (20) days after substantial completion of the Property and
written notice to Buyer, unless another date or place is agreed to in
writing. Immediately after closing Buyer and Seller shall notify the
condominium association of the transfer.
- CLOSING PRORATIONS: The following items shall be prorated at closing:
real estate taxes, rents, property owner's or condominium association fees
and assessments and any payments due under the Collateral Contracts. Any
income, taxes or expenses shall accrue to Seller, and be prorated, through
the day prior to closing. Net general real estate taxes shall be prorated
based on the net general real estate taxes for the current year, if known,
otherwise on the net general real estate taxes for the preceding year.
- FORM OF TITLE EVIDENCE: Seller shall give evidence of title by an
owner's policy of title insurance (including the ALTA Condominium 4
endorsement or equivalent) as further described at lines 145 to 159.
- CONVEYANCE OF TITLE: Upon payment of the purchase price, Seller shall
convey the Property by warranty deed (or other conveyance as provided
herein) free and clear of all liens and encumbrances, except: municipal
and zoning ordinances and agreements entered under them, recorded
easements for the distribution of utility, municipal and association
services, easements for performance of association duties, recorded
building and use restrictions and covenants, general taxes levied in the
year of closing, Wisconsin Condominium Act, condominium declaration and
plat and association articles of incorporation, bylaws and rules, the
Offering, the Collateral Contracts, and amendments to the above, and
(provided none of the foregoing prohibit use of the Property as a hotel
condominium), which constitutes merchantable title for purposes of this
transaction. Seller further agrees to complete and execute the documents
necessary to record the conveyance. WARNING: Condominium instruments, the
Offering, the Collateral Contracts, municipal and zoning ordinances,
recorded building and use restrictions, covenants and easements prohibit
certain improvements or uses and therefore should be reviewed carefully by
Buyer.
- SPECIAL ASSESSMENTS: Special assessments, if any, including those by the
homeowner's or condominium association, for work on site actually
commenced or levied prior to date of closing shall be paid by Seller no
later than closing. All other special assessments shall be paid by Buyer.
CONDOMINIUM DISCLOSURES AND PROPERTY CONDITION PROVISIONS
- CONDOMINIUM DISCLOSURES: Seller agrees to provide Buyer with complete,
current copies of the disclosure materials (organization and operational
documents, plans, financial statements and, in the case of a conversion
condominium, property information) as required by Wisconsin Statutes s.
703.33 no later than 15 days prior to closing and any amendment to these
materials promptly after its adoption. These materials are available at
cost from the condominium association. As provided in Section 703.33(4),
Wis. Stats., Buyer may, within five business days after receipt of these
documents, including any material modification thereto, rescind this Offer
by written notice mailed or delivered to Seller, the date of mailing or
actual delivery being the effective date of notice.
- REAL ESTATE CONDITION REPORT: Wisconsin law requires sellers of property
which includes 1-4 dwelling units to provide buyers with a Real Estate
Condition Report. Excluded from this requirement are sales of property
that has never been inhabited, and this Property has never been inhabited.
- INSPECTIONS: Seller agrees to allow Buyer's inspectors reasonable access
to the Unit, upon reasonable notice. Buyer agrees to promptly provide
copies of all inspection reports to Seller, and to listing broker if Unit
is listed.
- PROPERTY DAMAGE BETWEEN ACCEPTANCE AND CLOSING: Seller shall maintain a
constructed Unit until the earlier of closing or occupancy of Buyer in
materially the same condition as of the date of acceptance of this Offer,
except for ordinary wear and tear, and except for Units under construction
which Seller shall complete. If, prior to the earlier of closing or
occupancy of Buyer, the Unit or common elements in the building containing
the Unit are damaged in an amount of not more than five percent (5%) of
the selling price, Seller (individually or through the homeowner's or
condominium owner's association), shall be obligated to repair the
Property and restore it to the same condition that it was on the day of
this Offer. If the damage shall exceed such sum, or such damage shall
occur to the common elements of the condominium in excess of insurance
coverage in an amount which, when multiplied by the percentage interest of
the Unit in the declaration exceeds Two Thousand Dollars ($2,000.00),
Seller shall promptly notify Buyer in writing of the damage and this Offer
may be canceled at option of Buyer. Should Buyer elect to carry out this
Offer despite such damage, the insurance proceeds shall be held in trust
for the sole purpose of restoring the Property.
- PRE-CLOSING INSPECTION: At a reasonable time, preapproved by Seller or
Seller's agent, within 3 days before closing, Buyer shall have the right
to inspect the Unit to determine that there has been no significant change
in the condition of the Unit, except for ordinary wear and tear and
completion of construction, and that any construction or defects Seller
has elected to cure have been completed or repaired in a good and
workmanlike manner.
DEFAULT
Seller and Buyer each have the legal duty to use good faith and due
diligence in completing the terms and conditions of this Offer. A
material failure to perform any obligation under this Offer is a default
which may subject the defaulting party to liability for damages or other
legal remedies.
If Buyer defaults, Seller may:
(1) sue for specific performance and request the earnest money as
partial payment of the purchase price; or
(2) terminate the Offer and have the option to: (a) request the
earnest money as liquidated damages; or (b) direct Escrow Agent
to return the earnest money and have the option to sue for
actual damages.
If Seller defaults, Buyer may:
(1) sue for specific performance; or
(2) terminate the Offer and request the return of the earnest money,
sue for actual damages, or both.
In addition, the Parties may seek any other remedies available in law
or equity.
The Parties understand that the availability of any judicial remedy
will depend upon the circumstances of the situation and the discretion of
the courts. If either Party defaults, the Parties may renegotiate the
Offer or seek nonjudicial dispute resolution instead of the remedies
outlined above. By agreeing to binding arbitration, the Parties may lose
the right to litigate in a court of law those disputes covered by the
arbitration agreement.
EARNEST MONEY
- HELD BY: Earnest money shall be held by an Escrow Agent selected by
Seller and shall be held in the account of the Seller's Escrow Agent until
applied to purchase price or otherwise disbursed as provided in the Offer.
If negotiations do not result in an accepted offer, the earnest money
shall be promptly disbursed (after clearance from payor's depository
institution if earnest money is paid by check) to the person who paid the
earnest money.
- DISBURSEMENT: At closing, earnest money shall be disbursed according to
the closing statement. If this Offer does not close, the earnest money
shall be disbursed according to a written disbursement agreement signed by
all Parties to this Offer. If said disbursement agreement has not been
delivered to the Escrow Agent within 60 days after the date set for
closing, the Escrow Agent may disburse the earnest money: (1) as directed
by an attorney who has reviewed the transaction and does not represent
Buyer or Seller; (2) into a court hearing a lawsuit involving the earnest
money and all Parties to this Offer; (3) as directed by court order; or
(4) any other disbursement required or allowed by law. The Escrow Agent
may retain legal services to direct disbursement per (1) or to file an
interpleader action per (2) and the Escrow Agent may deduct from the
earnest money any costs and reasonable attorneys fees, not to exceed Four
Hundred Fifty Dollars ($450.00), prior to disbursement.
- LEGAL RIGHTS/ACTION: The Escrow Agent's disbursement of earnest money
does not determine the legal rights of the Parties in relation to this
Offer. At least 30 days prior to disbursement per (1) or (4), the Escrow
Agent shall send Buyer and Seller notice of the disbursement by certified
mail. If Buyer or Seller disagree with the Escrow Agent's proposed
disbursement, a lawsuit may be filed to obtain a court order regarding
disbursement. The Buyer and Seller should consider consulting attorneys
regarding their legal rights under this Offer in case of a dispute. Both
Parties agree to hold the Escrow Agent harmless from any liability for
good faith disbursement of earnest money in accordance with this Offer.
TITLE EVIDENCE
- FORM OF TITLE EVIDENCE: Seller shall give evidence of title to the
Property in the form of an owner's policy of title insurance (with a
Condominium 4 endorsement or equivalent) in the amount of the purchase
price on a current ALTA form issued by an insurer licensed to write title
insurance in Wisconsin.
- PROVISION OF MERCHANTABLE TITLE: Seller shall pay all costs of providing
title evidence. For purposes of closing, title evidence shall be
acceptable if a commitment for the required title insurance is delivered
to Buyer's attorney or to Buyer not less then 3 business days before
closing, showing title to the Property as of a date no more than 15 days
before delivery of such title evidence to be merchantable, subject only to
liens which will be paid out of the proceeds of closing and standard
abstract certificate limitations or standard title insurance requirements
and exceptions, as appropriate.
- TITLE ACCEPTABLE FOR CLOSING: If title is not acceptable for closing,
Buyer shall notify Seller in writing of objections to title by the time
set for closing. In such event, Seller shall have a reasonable time, but
not exceeding 15 days, to remove the objections, and the time for closing
shall be extended as necessary for this purpose. In the event that Seller
is unable to remove said objections, Buyer shall have 5 days from receipt
of notice thereof, to deliver written notice waiving the objections, and
the time for closing shall be extended accordingly. If Buyer does not
waive the objections, this Offer shall be null and void. Providing title
evidence acceptable for closing does not extinguish Seller's obligations
to give merchantable title to Buyer.
ENTIRE CONTRACT
This Offer, including any amendments to it, and documents incorporated
herein by reference contains the entire agreement of the Buyer and Seller
regarding the transaction. All prior negotiations and discussions have
been merged into this Offer. This agreement binds and inures to the
benefit of the Parties to this Offer and their successors.
DEFINITIONS
- ACCEPTANCE: Acceptance occurs when all Buyers and Sellers have signed
the Offer.
- CONDITIONS AFFECTING THE PROPERTY OR TRANSACTION: A "condition affecting
the Property or transaction" is defined as follows:
(a) Planned or commenced public improvements by government authorities or
the homeowner's or condominium association which may result in special
assessments against the Unit or otherwise materially affect the
Condominium or the present use of the Property;
(b) Government agency, court, homeowner's or condominium association order
requiring repair, alteration or correction of a Property condition;
(c) Structural inadequacies which if not repaired will significantly
shorten the expected normal life of the Condominium;
(d) Mechanical systems inadequate for the present use of the Condominium;
(e) Conditions constituting a significant health or safety hazard for
occupants of the Property;
(f) Insect or animal infestation of the Condominium;
(g) Underground storage tanks on the Condominium for storage of flammable
or combustible liquids including but not limited to gasoline and heating
oil;
(h) Any portion of the Condominium being in a 100 year flood plain, a
wetland or a shoreland zoning area under local, state or federal
regulations;
(i) Material violations of environmental rules or other rules or
agreements regulating the use of the Condominium;
(j) Material violation of state or local smoke detector laws;
(k) High voltage electric (100 KV or greater) or steel natural gas
transmission lines located on but not directly serving the Condominium;
(l) That a structure on the Property is designated as a historic building
or that any part of the Property is in a historic district;
(m) Other conditions or occurrences which would significantly reduce the
value of the Property to a reasonable person with knowledge of the nature
and scope of the condition or occurrence.
- DAYS: Deadlines expressed as a specific number of "days" from the
occurrence of an event, such as acceptance, are calculated by excluding
the day the event occurred. The deadline then expires at midnight on the
last day. Deadlines expressed as a specific number of "business days"
exclude Saturdays, Sundays and any legal public holiday under Wisconsin or
Federal law, or other holiday designated by the President such that the
postal service does not receive registered mail or make regular deliveries
on that day. Deadlines expressed as a specific day of the calendar year
or as the day of a specific event, such as closing, expire at midnight of
that day.
- FIXTURES: A "Fixture" is an item of property which is physically
attached to or so closely associated with land and improvements so as to
be treated as part of the real estate, including without limitation,
physically attached items not easily removable without damage to the
premises, items specifically adapted to the premises, and items
customarily treated as fixtures including but not limited to all: screen
and storm doors and windows; electric lighting fixtures; window shades;
curtain and traverse rods; blinds and shutters; heating and cooling units
and attached equipment; water heaters and softeners; attached or fitted
floor coverings; built-in appliances; and ceiling fans. See lines 11 to
14.
- TIME IS OF THE ESSENCE: If "Time is of the Essence" applies to a date or
deadline, failure to perform by the exact date or deadline is a breach of
contract. If "Time is of the Essence" does not apply to a date or
deadline, then performance within a reasonable time of the date or
deadline is allowed before a breach occurs. See lines 23 to 24.
- OFFER: "Offer" shall mean this Hotel Condominium Construction and Sales
Agreement.
- REGISTRATION STATEMENT: "Registration Statement" shall mean the Form S-
11 Registration Statement Under the Securities Act of 1993 for "133 Hotel
Condominium Units to Be Built In Two Phases With Mandatory (If The Unit Is
To Be Rented) Rental Pool At The Wilderness Hotel & Resort" submitted to
the Securities and Exchange Commission by Wilderness Development
Corporation on May 6, 1997 as Registration No. _____________, and any
amendments thereto or state filings thereof.
- COLLATERAL CONTRACTS: "Collateral Contracts" shall mean the Rental
Pooling Agreement, Use and Access Agreement and Management and Use
Agreement as further set forth in the Registration Statement or any
amendments thereto.
PROVISIONS RELATED TO FINANCING
- LOAN COMMITMENT: If this Offer is contingent on financing, Buyer agrees
to pay all customary financing costs (including closing fees), to apply
for financing promptly, and to provide evidence of application promptly
upon request of Seller. If Buyer qualifies for said financing or other
financing acceptable to Buyer, Buyer agrees to deliver to Seller, or
Seller's agent, a copy of the written loan commitment no later than the
deadline for loan commitment under the Financing Contingency. If Buyer
does not make timely delivery of said commitment, Seller may terminate
this Offer if Seller delivers a written notice of termination to Buyer
prior to Seller's actual receipt of a copy of Buyer's written loan
commitment.
- FINANCING UNAVAILABILITY: If this Offer is contingent on financing and
financing is not available on the terms stated, Buyer shall promptly
deliver written notice to Seller of same including copies of lender(s)'
rejection letter(s) or other evidence of unavailability. Unless a
specific loan source is named in the financing contingency, Seller shall
then have 5 days to give Buyer written notice of Seller's decision to
finance this transaction on the same terms set forth herein, and this
Offer shall remain in full force and effect, with the time for closing
extended accordingly. If Seller's notice is not timely given, this Offer
shall be null and void.
- LAND CONTRACT: If this Offer provides for a land contract, prior to
execution of the land contract Seller shall provide the same evidence of
merchantable title as required above and written proof, at or before
execution, that the total underlying indebtedness, if any, is not in
excess of the proposed balance of the land contract, that the payments on
the land contract are sufficient to meet all of the obligations of Seller
on the underlying indebtedness, and that all creditors whose consent is
required have consented to the land contract sale.
PROPERTY ADDRESS: Unit ___, Wilderness Hotel Condominium, Lake Delton,
Wisconsin
OPTIONAL PROVISIONS: THE PROVISIONS ON LINES 225 THROUGH 259 ARE A PART OF
THIS OFFER IF MARKED, SUCH AS WITH AN "x". THEY ARE NOT PART OF THIS
OFFER IF MARKED N/A OR ARE LEFT BLANK.
____ FINANCING CONTINGENCY: This Offer is contingent upon Buyer being able
to obtain, within ______ days of acceptance of this Offer, a
__________________________ [INSERT LOAN PROGRAM (fixed) (adjustable)]
[STRIKE ONE] rate first mortgage loan commitment, in an amount of not less
than $____________________ for a term of not less than ______ years,
amortized over not less than _______ years. If the purchase price under
this Offer is modified, the loan amount, unless otherwise provided, shall
be adjusted to the same percentage of the purchase price as in this
contingency and the monthly payments shall be adjusted as necessary to
maintain the term and amortization stated above. IF FINANCING IS FIXED
RATE the annual rate of interest shall not exceed _______% and monthly
payments of principal and interest shall not exceed
$__________________________. IF FINANCING IS ADJUSTABLE RATE the initial
annual interest rate shall not exceed _____%. The initial interest rate
shall be fixed for ______ months, at which time the interest rate may be
increased not more than _____% per year. The maximum interest rate during
the mortgage term shall not exceed _____%. Initial monthly payments of
principal and interest shall not exceed $__________________. Monthly
payments of principal and interest may be adjusted to reflect interest
changes. MONTHLY PAYMENTS MAY ALSO INCLUDE 1/12th of the estimated net
annual real estate taxes, hazard insurance premiums, and private mortgage
insurance premiums. Buyer agrees to pay a loan fee in an amount not to
exceed ______% of the loan. [Loan fee refers to discount points and/or
loan origination fee, but DOES NOT include Buyer's other closing costs.]
SEE LINES 206 TO 221 FOR ADDITIONAL FINANCING PROVISIONS.
_____ SECONDARY OFFER: This Offer is secondary to a prior accepted
offer. This Offer shall become primary upon delivery of written notice to
Buyer that this Offer is primary. Seller agrees to deliver said notice to
Buyer promptly upon Seller's receipt of evidence satisfactory to Seller
that the prior offer is null and void. Buyer may declare this Offer null
and void by delivering written notice of withdrawal to Seller prior to
delivery of Seller's notice that this Offer is primary. Buyer may give
notice of withdrawal no earlier than ______ hours from acceptance of this
Offer. All other Offer deadlines which are measured from acceptance shall
be measured from the time this Offer becomes primary.
_____ INSPECTION CONTINGENCY: This Offer is contingent upon a
qualified independent inspector conducting an inspection, at
Buyer's expense, of the Unit/and
______________________________________________________________________
which discloses no defects as defined below. This contingency shall be
deemed satisfied unless Buyer, within _____ days of acceptance, delivers
to Seller a copy of the inspector's written inspection report and a
written notice listing the defects identified in the inspection report to
which Buyer objects. Buyer agrees to deliver a copy of the report and
notice to Sweeney & Sweeney, S.C., if Property is listed, upon delivery to
Seller.
- RIGHT TO CURE: Seller shall have a right to cure the defects. If Seller
has right to cure, Seller may satisfy this contingency by: (1) delivering
a written notice of Seller's election to cure defects within 10 days of
receipt of Buyer's notice; and (2) curing the defects in a good and
workmanlike manner and delivering to Buyer a written report detailing the
work done no later than 3 days prior to closing. This Offer shall be null
and void if Buyer makes timely delivery of the above notice and report and
Seller has a right to cure but does not timely deliver the notice of
election to cure.
- "DEFECT" DEFINED: For the purposes of this contingency, a defect is
defined as a structural, mechanical or other condition that would have a
significant adverse effect on the value of the Property; that would
significantly impair the health or safety of future occupants of the Unit;
or that if not repaired, removed or replaced would significantly shorten
or have a significant adverse effect on the expected normal life of the
Unit. Defects do not include structural, mechanical or other conditions
the nature and extent of which Buyer had actual knowledge or written
notice before signing this Offer.
IF ACCEPTED, THIS OFFER CAN CREATE A LEGALLY ENFORCEABLE CONTRACT. BOTH
PARTIES SHOULD READ THIS DOCUMENT CAREFULLY. SELLER'S REPRESENTATIVES MAY
PROVIDE A GENERAL EXPLANATION OF THE PROVISIONS OF THE OFFER BUT ARE
PROHIBITED BY LAW FROM GIVING ADVICE OR OPINIONS CONCERNING YOUR LEGAL
RIGHTS UNDER THIS OFFER OR HOW TITLE SHOULD BE TAKEN AT CLOSING. AN
ATTORNEY SHOULD BE CONSULTED IF LEGAL ADVICE IS NEEDED.
This Offer was drafted on _____________________________ [date] by Buyer.
(x)____________________________________ _______________________
Buyer's Signature Print Name here:
_______________________________________ _______________________
(Social Security No.) (Date)
(x)____________________________________ _______________________
Buyer's Signature Print Name here:
_______________________________________ _______________________
(Social Security No.) (Date)
EARNEST MONEY RECEIPT. Seller's representative acknowledges receipt of
earnest money as per line 9 of the above offer.
WILDERNESS DEVELOPMENT CORPORATION By
___________________________________________________________________
SELLER ACCEPTS THIS OFFER. THE WARRANTIES, REPRESENTATIONS AND COVENANTS
MADE IN THIS OFFER SURVIVE CLOSING AND THE CONVEYANCE OF THE PROPERTY.
THE UNDERSIGNED HEREBY AGREES TO CONVEY THE ABOVE-MENTIONED PROPERTY ON
THE TERMS AND CONDITIONS AS SET FORTH HEREIN AND ACKNOWLEDGES RECEIPT OF A
COPY OF THIS OFFER.
WILDERNESS DEVELOPMENT CORPORATION (EIN 39-1861046)
By:____________________________________ _______________________
Seller's Signature Print Name here:
_______________________________________ _______________________
(Social Security No.) (Date)
This Offer was presented to Seller by _______________________ on
___________________, 19___, at ___ a.m./p.m.
THIS OFFER IS REJECTED _________________ ________ THIS OFFER IS
(Seller's Initials) (Date)
COUNTERED [See attached counter) ___________________ __________
(Seller's Initials) (Date)
RENTAL POOLING AND AGENCY AGREEMENT
THIS AGREEMENT, dated this day of ___________, 19__, is between
WILDERNESS DEVELOPMENT CORPORATION, a Wisconsin corporation, (the
"Company") and the condominium unit owner whose name and address are set
forth below ("Owner", or one of the "Owners" when referred to collectively
with all of the condominium unit owners that have entered or will enter
into this Agreement with the Company).
RECITALS
WHEREAS, Owner has purchased a certain condominium unit known as
Unit #_______ of the Wilderness Hotel Condominium (the "Unit", or one of
the "Units" when referred to collectively with all of the condominium
units to be operated by the Company pursuant to this Agreement), including
an undivided interest in certain common elements, in a portion of a resort
known as Wilderness Hotel & Resort (the "Wilderness Hotel & Resort"), in
Sauk County, Wisconsin, which houses 133 hotel condominium units (the
"Condominium Hotel Project"). Owner does not intend to hold the Unit for
his/her exclusive personal use, but rather desires to have the Unit
managed as a hotel condominium unit by the Company when Owner is not
personally occupying the Unit, which personal use is subject to the terms
of this Agreement. The purpose of this Agreement is to provide for the
proper rental and management of the Unit(s) in connection with the
Company's and/or its affiliate companies' (as defined herein), operation
of the entire Wilderness Hotel & Resort as a first-class resort hotel; and
to accommodate this objective each initial Owner of a Unit is required to
enter into this Rental Pooling and Agency Agreement (the "Agreement") in
connection with his/her purchase of a Unit; and
WHEREAS, the Owner(s) desire to place the Unit in one of seven
(7) different rental pools (the "Rental Pools") segregated pursuant to the
Unit type, as described herein. The Units which comprise each Rental Pool
are to be operated and managed by the Company. The parties hereto desire
this Agreement to establish the seven (7) Rental Pools.
AGREEMENT
In consideration of the foregoing and the mutual covenants
contained herein, the sufficiency of which is hereby acknowledged, the
parties agree as follows:
ARTICLE 1
Creation, Management and Control of the Rental Pools
1.1 Description Of The Rental Pool.
Each Owner and all Transferees of a Unit intending to offer their
Unit(s) for rent or lease, shall be required to enter into this Agreement.
By the execution of this Agreement, the Company is hereby appointed agent
and attorney-in-fact for the Owner(s) in the rental operation and
management of the Owner's Unit as a hotel accommodation. Under this
Agreement the Owners will share in the net rental income from the rental
of all of the Units participating in that Unit's Rental Pool ("Net Rental
Income") . There are seven (7) specific Rental Pools in the Hotel
Condominium Project. Each individual Rental Pool is made up of similar
Units and each Rental Pool is more particularly described below:
Name of Type of Unit Number of Units in Description
Pool in Pool Rental Pool
Pool A A, A-1 38 One Room
Pool B B, B-1 19 One
Room/Loft
Pool C C, C-1 40 One Bedroom
Pool D D, D-1 20 One
Bedroom/Loft
Pool E E 8 Master
Bedroom
Pool F F 4 Three
Bedroom/Loft
Pool G G/H 4 One/Two
Bedroom(s)
1.2 Agency. Owner hereby appoints the Company his exclusive
agent for the proper rental, management and operation of the Unit(s) and
the Rental Pools, and hereby retains the Company to perform all of the
services herein contemplated and the Company hereby agrees to discharge
these duties, all in accordance with the terms and conditions set forth in
this Agreement.
1.3 Power and Authority of the Company. The Company shall have
full power and authority to take all actions and to do all things
reasonably necessary or desirable for the proper, efficient and economical
management and operation of all of the Units in the Hotel Condominium
Project. The Company shall determine the marketing and operating
programs, policies and procedures to be followed in connection with the
Rental Pools, all in accordance with the provisions of this Agreement and
to the end that the Units will be maintained and operated in a first-class
manner with a goal of reasonable profitability. Except as otherwise
specifically provided in Section 1.4, the Company shall have total
discretion and control in all matters relating to the rental and marketing
policies for the Units and for their management, operation and
maintenance; and in connection therewith Owner hereby authorizes and
appoints the Company as his/her attorney-in-fact and agent to execute and
deliver on his/her behalf transient hotel rental arrangements for his/her
Unit; to demand, receive and receipt for the rent payments thereunder; and
to exercise all other rights, powers and authority granted to the Company
hereunder, including without limitation the power and authority to do all
of the following:
(a) To operate and manage each of the Units and Rental Pools,
and to enter into agreements with others with respect to such management
and operation, which agreements shall contain such terms, provisions and
conditions as the Company deems, in its absolute discretion, to be
advisable and in the best interest of all of the Owners of Units in the
Hotel Condominium Project;
(b) To acquire, hold, sell, lease or otherwise dispose of any
personal property connected with the Units and the Company's rental
operation of the Units, including the purchase, lease, maintenance,
exchange, trade or sale of such properties at such price, rental amount,
for cash, securities or other property, and upon such terms as the Company
deems appropriate;
(c) To make or cause to be made all repairs or to perform or
cause to be performed such maintenance as the Company deems necessary to
maintain the interior walls of the Unit(s) and all furniture furnishings,
fixtures, machinery and operating equipment located in, on or about the
Unit(s) in satisfactory condition for transient hotel rental to third
parties;
(d) To maintain or cause to be maintained all common elements
of the Hotel Condominium Project that are used in connection with the
rental operation of the Units in a first-class condition as a prestigious
resort hotel;
(e) To control or cause to be controlled (i) the use and
operation of all the common areas and physical facilities of the Hotel
Condominium Project to assure the efficient rental of the Units (i.e., all
housekeeping closets and hotel supply storage areas), and (ii) the use and
operation of all recreational amenities in the common areas to assure the
best use by Owners and guests alike and to insure maximizing Net Rental
Income with the beneficial use of the recreational amenities;
(f) To arrange for all advertising and promotion of the rental
accommodations of the Hotel Condominium Project, in accordance with other
marketing being done for the benefit of the Wilderness Hotel & Resort as
the Company deems advisable;
(g) To establish from time to time such rates for third
parties' transient hotel rental of the Unit(s) as the Company may deem
appropriate;
(h) To employ persons, agents and contractors in the rental
operation and management of the Unit(s), including but not limited to,
supervisory managing agents, building management agents, rental agents,
marketing representatives, security personnel and insurance brokers, on
such terms and for such compensation as the Company deems appropriate;
(i) To employ persons to perform legal and independent auditing
services in connection with the rental operation and management of the
Units and to provide services in connection with the preparation and
filing of any tax returns required in connection with the Rental Pools;
(j) To purchase from others such public liability, innkeeper's,
fidelity and other insurance as the Company deems advisable, appropriate
or convenient for the protection of the Units, or the equipment used in
connection with the rental operation of the Units or for any purpose
convenient or beneficial to the rental operation of the Units;
(k) To defend, settle or otherwise dispose of litigation with
any third party relating to the rental operation of the Units;
(l) To place record title to, or the right to use, the Hotel
Condominium Project's assets (acquired in connection with the rental
operation of the Units) in the name or names of a nominee or nominees for
any purpose convenient or beneficial to the rental operation of the Units;
(m) To incur charges with respect to bank accounts maintained
and expenses relating to the purchase of supplies, materials, equipment or
similar items used in connection with the rental operation of the Units;
(n) To borrow up to an aggregate of $100,000 principal
outstanding at any one time as may be required for the maintenance and
operation of the Units and to secure the repayment of such borrowing by
pledging or otherwise encumbering all or any part of the Gross Room
Revenues (as defined in Section 3.1(a)) and to refund, refinance, modify,
consolidate or extend the maturity of any indebtedness created by such
borrowing, or any pledge, encumbrance or other security device, all upon
such terms as the Company deems appropriate;
(o) To, at the Company's sole and absolute discretion, lend
money to the Owners as a group; provided, however, that if the Company
makes any such loan or loans, the amount of any such loan shall be treated
as a joint liability of the Owners and shall be repayable upon such terms
and conditions and shall bear interest at such rate of interest as shall
be reasonable under the circumstance;
(p) To enter into such agreements, contracts, documents and
instruments with such parties and to give such receipts, releases and
discharges with respect to all of the foregoing and matters incidental
thereto as the Company may deem advisable, appropriate or convenient; and
(q) Perform any and all other legal acts to ensure the proper
establishment and management of the Units in the Rental Pools.
1.4 Limitations on the Company's Power and Authority. The
Company shall not do any of the following:
(a) Do any act in contravention of this Agreement;
(b) Do any act which would make it impossible to carry on the
rental pooling program contemplated hereunder;
(c) Possess or assign rights in any property acquired in
connection with the rental operation of the Units for other than proper
purposes relating to the rental pooling program;
(d) Permit a creditor who makes a non-recourse loan to the
Owners as a group, or to the Company in connection with its rental
operation of the Units, to have or acquire, at any time as a result of
making the loan, any direct or indirect interests in the profits, capital
or property of the rental pooling program established pursuant to this
Agreement, other than as a secured creditor.
1.5 General Duty of the Company. The Company agrees to use its
best efforts to manage and control the rental operation of the Units and
Rental Pools and shall devote such time and effort thereto as the Company
shall deem necessary. In connection therewith, the Company shall perform
any and all functions, acts, and things that, in its sole discretion, are
reasonably necessary or desirable for the proper, efficient and economical
management and operation of the Units and for the protection of Owners'
and the Company's interests and rights therein. These duties and
responsibilities shall include, without limitation, the provision of
management and sales supervision and training, and accounting and
management control of the Units, and the proper promotion of the rental
accommodations of the Hotel Condominium Project to the general public.
ARTICLE 2
Use of Condominium Units
2.l Availability. Except as set forth in Section 2.2 below,
Owner shall make his/her Unit available at all times for occupancy by
third parties as hotel rental accommodations in connection with the
operation of the Hotel Condominium Project. Other than as set forth in
Section 2.2 below, the Owner shall not have the right to occupy any Unit
in the Hotel Condominium Project, including the Unit owned by Owner,
except upon the same terms and conditions and subject to the same rules
and regulations as the general public. Furthermore, Owner shall not have
the right to rent his Unit to anyone but shall only be permitted to allow
specified guests to occupy his Unit pursuant to Section 2.2 below and all
other hotel transient rental arrangements shall be made and managed by the
Company.
2.2 Use by Owner. Owners shall have the right to use the Unit
he/she has purchased or other Units in the Hotel Condominium Project upon
the following terms and conditions:
(a) Personal Use Nights. In addition to all other rights and
obligations available to a Unit Owner, he/she and/or his/her assigns may
use the Unit for a total of ten (10) nights during any one (1) calendar
year within an Owner's own Rental Pool ("Personal Use Nights"). Such
Personal Use Nights shall not be allowed from June 10th through Labor Day.
Further, all Personal Use Nights shall be subject to availability within
Owner's own Rental Pool. An Owner's Personal Use Nights shall be free of
any rental charge whatsoever, except: for any telephone charges; charges
to the room during the Owner's stay at the Wilderness Hotel & Resort;
recreation fees or charges at the Wilderness Hotel & Resort; any
extraordinary wear and tear and/or damage to any Unit and/or the
furnishings contained therein; and any other charge or fee not incidental
to actual rental charge normally due from the occupant of a hotel room
within the hotel industry. In the event an Owner owns a Unit for less
than a full calendar year, the number of Personal Use Nights shall be
prorated on the basis of ten (10) Personal Use Nights per 365 days. Any
use shall be subject to the terms of this Agreement and all rules and
regulations of the Hotel Condominium Project and the Wilderness Hotel &
Resort. Notwithstanding anything contained herein to the contrary,
Personal Use Nights must be used during a calendar year or the right to
use the Personal Use Night shall expire on December 31 of that certain
calendar year. As a result, no Personal Use Nights can be accumulated
from year to year.
(b) Unit Inside an Owner's Rental Pool.
In addition to the Owner using ten (10) Personal Use Nights and
at any time during the year, in the event on the day of the Unit Owner's
check in, at 10:30 p.m., each and every Unit in an Owner's Rental Pool is
not rented, an Owner, on a "first come first serve" basis, may rent that
Unit for 25% of the lowest available rental rate for that Unit taking into
consideration the time of year, other discounts being offered and similar
considerations. This charge of 25% of lowest available rental rate shall
not be considered Gross Room Revenue for purposes of the Rental Pool.
Rather, the sums shall be paid to the Company as an administrative fee to
cover reasonable costs associated with renting the Unit for that night.
Any amount charged to the Owner for his/her occupancy will be deducted
from the Owner's hotel account unless Owner elects to pay upon check out.
In addition to amounts charged Owner for occupancy, Owner shall be charged
for any normal and actual telephone costs or extra ordinary maintenance
costs associated with Owners occupancy.
(c) Unit Outside an Owner's Rental Pool. In addition to the
Owner using the ten (10) Personal Use Nights and at any time during the
year, in the event each and every Unit in an Owner's Rental Pool is rented
for a given night, an Owner may occupy any of the Units in the Hotel
Condominium Project at the lowest available rental rate for that Unit,
taking into consideration the time of year, other discount rates then
being offered, and similar considerations. Seventy-five percent (75%) of
the published rental rate is typical of the lowest available rate given by
resort hotels to various types of groups or repetitive business, except
during peak holiday periods. The terms and conditions of an Owner's
reduced rate occupancy of a Unit with respect to reservations,
cancellations and occupancy shall be identical to the terms and conditions
imposed on any other guest of the Wilderness Hotel & Resort. Any amount
charged for an Owner's occupancy will be deducted from Owner's hotel
account unless Owner elects to pay upon check out. In addition to amounts
charged Owner for occupancy, Owner shall be charged for any normal and
actual telephone costs or extra ordinary maintenance costs associated with
Owners occupancy.
(d) Restriction on Rental. An Owner, may not rent his/her Unit
to others independent of the Company's rental operation of the Units and
the Rental Pools. Further, an Owner can block off and reserve the use of
his/her Unit any time prior to that Unit being reserved by a member of the
general public, but rate will not be determined until the morning after
the Unit Owner's arrival at the Wilderness Hotel & Resort, unless Owner is
using one of his/her ten (10) Personal Use Nights.
(e) Notification of Intent to Occupy. Owner shall not have the
right to use a Personal Use Night on any specific day pursuant to the
terms of this Agreement unless he/she shall make a reservation with the
reservation clerk for the Wilderness Hotel & Resort and the Unit(s) has
not been reserved for occupancy on such days. Similarly, if an Owner
wishes to allow a specified guest to occupy his/her Unit during all or any
of the Owner's Personal Use Nights, Owner must make a reservation as
provided above, together with a written memorandum signed by Owner stating
his consent to the Personal Use Nights being used by the specified guest.
Owner may cancel any Personal Use Night reservation seventy-two (72) hours
prior to date of arrival, and pay a Ten Dollar ($10.00) cancellation fee;
provided, however, that if the notice of cancellation is received less
than seventy-two (72) hours prior to the date of arrival, the Owner, for
the purposes of determining the number of Personal Use Nights used, shall
be deemed to have occupied the Unit for the period specified in his/her
reservation unless the Company shall actually obtain a rental of the Unit
during that period.
(f) Manner of Use. An Owner's Unit may be occupied on a
Personal Use Night by any Owner or specified guest. Only Owner or his
spouse shall be granted discount rates for their use of other categories
of Units in the Hotel Condominium pursuant to paragraphs 2.2(b) and
2.2(c), and only to the extent other discount rates are then available to
group or repetitive business. At any time a Unit is used by Owner,
his/her spouse, or specified quests, whether being a Personal Use Night,
at a discount rate or otherwise, the user or users shall comply with all
Hotel rules and regulations with respect to their use of the Unit and
Hotel Condominium Project and Wilderness Hotel & Resort facilities. The
Personal Use Nights and/or discount rates, as the case may be, shall be
available to the Owner, spouse, or specified guest on a basis of one per
Unit owned by the Owner. By way of example, an Owner of one Unit using a
discount rate or Personal Use Night shall be entitled to use only one Unit
on that specific night. Any other Unit rented by the Owner spouse or
specified guest shall be at full rack rate.
ARTICLE 3
Compensation of the Company
3.1 Management Fee. Owner shall pay the Company a "Management
Fee" of thirty five percent (35%) of the Gross Room Revenues allocated to
his/her Hotel account. "Gross Room Revenues" are all revenues and income
actually received from the rental of all of the Units, whether on cash or
credit, less cash and credit refunds; sales and rooms taxes collected from
guests or customers; insurance proceeds other than from rent or business
interruption insurance; gains on the sale or disposition of equipment used
in the rental pooling operations; any reversal of any contingency or sales
or room tax reserve; and any commissions received from booking ground
tours or other miscellaneous income generated in connection with the
Company's operation of the Rental Pools. Gross Room Revenues shall not
include revenues from the other operations of the Hotel Condominium
Project such as food, beverages, meeting space, vending machines and coin
operated gaming machines, all of which shall be provided by the Company
and/or its Affiliates and all proceeds of which shall flow to the Company
and/or its Affiliates which provided the service.
3.2 Overhead Expenses. The Management Fee shall be deemed in
part to constitute reimbursement to the Company for costs and expenses
incurred by the Company for services which are performed by personnel
located at its corporate headquarters, which services include executive
supervision, management, consulting, policy making, corporate finance,
personnel and employee relations and benefit administration, legal
services, research and development not otherwise allocated among specific
matters in the Company's operation, and the services of its technical,
operational and marketing experts making periodic inspection and
consultation visits to the Hotel Condominium Project.
3.3 Extraordinary Direct Expenses. In addition to the
Management Fee, Owners shall reimburse the Company for any extraordinary
direct expenses incurred by it in connection with its operation and
management of the Units. Extraordinary direct expenses shall include, but
not be limited to, expenses incurred by the Company for travel, telephone,
entertainment, legal and accounting services, and the like, to the extent
the expense is outside the ordinary course of business, all of which shall
be documented as relating directly to the Company's performance of its
obligations under this Agreement.
3.4 Compensation Treated as Expense. All compensation due to
the Company, including the Management Fee and direct extraordinary expense
reimbursement, shall be treated as a Room Operating Expense and charged
proportionately to each Owner's Hotel account according to the provisions
of Section 4.2(c). The Management Fee and direct extraordinary expense
reimbursement shall be payable to the Company monthly in arrears.
ARTICLE 4
Sharing of Revenues and Expenses
4.1 Rental Pool.
(a) Proposed Rent. The Company, in its sole discretion, shall
charge a fair, reasonable and competitive rental rate for the Unit(s),
taking into consideration the Unit's location, its conveniences and
amenities and the size of the Unit and the Wilderness Hotel & Resort's
class and atmosphere. The rent schedule for all Units in the Hotel
Condominium Project shall be published on a regular basis and, except for
rental adjustments made at the Company's discretion for group or long-term
occupancy, and reduced-rate or complimentary accommodations granted at the
Company's discretion for purposes the Company deems advisable and to the
benefit of the Hotel Condominium Project, the rent charged for the Units
in the Hotel Condominium Project shall be in accordance with the rates so
published.
(b) Revenue Allocation. The Gross Room Revenues received from
all of the Units shall be pooled into seven (7) different Rental Pools and
the Company shall allocate monthly to Owner's Hotel account an amount
equal to the Gross Room Revenues of the Unit Rental Pool for the prior
month divided by the number of Units in the Rental Pool.
4.2 Operating Expenses.
(a) Room Operating Expenses. The "Room Operating Expenses"
generally include all costs, charges and expenses attributable to the
operation of all of the Units in a specific Rental Pool and each separate
Rental Pool as hotel accommodations, including without limitation the
compensation paid to the Company pursuant to Sections 3.2 and 3.4; the
salaries, payroll rates and employee benefits of all Hotel Condominium
Project personnel providing services in connection with the rental
operation of the Units (i.e., managers, assistant managers, bookkeepers,
reservation clerks, maids and room service employees, and the like); costs
of linen and laundry service; costs of guest supplies; advertising and
promotional expenses, including salaries, payroll rates and employee
benefits of sales personnel; reasonable travel expenses of the Company's
personnel; costs of office supplies and equipment, including postage and
long distance telephone charges; fees and commissions paid to travel
agents and hotel representatives; any and all reserves required to replace
any improvements at the Hotel Condominium Project, credit card
commissions; bad debt losses; expenses of repair, maintenance and
refurbishment of office, reception, housekeeping and maintenance areas;
expenses of repair, maintenance and refurbishment of Unit furnishings,
fixtures, equipment and household items; costs of utilities; that certain
access and use fee to be paid pursuant to that certain access and use
agreement dated ____________ by and between the Association and the
Company and its affiliated entities (the "Access and Use Agreement");
computer bookkeeping and accounting expenses; and fees for legal and other
professional services. The Room Operating Expenses also include the cost
of thorough periodic cleaning and repair of the Units and their
furnishings, which maintenance, cleaning and repair shall be done by the
Company to the extent feasible on a rotating basis so as to maintain all
Units in proper condition for their rental use. Room Operating Expenses
do not include the charge for fire, casualty and liability insurance
purchased through the Association; Association charges, fees and
assessments; property taxes, or mortgage payments attributable to any
Unit, all of which each Owner shall pay directly or through the
Association.
(b) Shared Expenses. Though Room Operating Expenses shall not
include any portion of the operating expenses of the Hotel Condominium
Project that are attributable to the commercial operations in the Hotel
Condominium Project and/or by Wilderness Hotel & Resort (i.e., the
operation of food beverage and conference facilities, and the like),
certain costs, charges and expenses will be incurred by the Company that
are attributable to the Unit rental operations and the other commercial
operations in the Hotel Condominium Project, including but not limited to
the operation, maintenance, repair and replacement of the recreational and
public areas (including parking facilities) of the Wilderness Hotel &
Resort. The Company shall conclusively allocate to Room Operating
Expenses, in a reasonably equitable manner, a portion of such shared
expenses.
(c) Allocation. The Company shall allocate monthly to Owner's
Hotel account an amount equal to the aggregate of all Room Operating
Expenses attributable to the Owner's Rental Pool divided by the number of
Units in the Owner's Rental Pool.
4.3 Distributions or Assessments.
(a) Distributions. "Net Rental Income" shall be the amount of
Gross Room Revenues remaining in Owner's Hotel account after deducting his
share of the Room Operating Expenses. Within 30 days after the end of
each calendar quarter, the Company shall make distributions to Owner of
his Net Rental Income, less any deduction made pursuant to Sections 2.2(a)
and 2.2(b) for Owner's occupancy and less any deductions made pursuant to
Section 4.4 for Association fees, charges and assessments. The Company
may also retain from these quarterly distributions an amount that it deems
reasonably necessary to maintain an adequate working capital reserve,
which reserved amount from all Units shall never exceed $200,000.
(b) Assessments. If Owner's share of the Gross Room Revenues
for any month is less than his/her share of the Room Operating Expenses,
or if there is a negative balance in his/her Hotel account after deducting
any Owner occupancy or Association charges and any capital reserve amount,
the Company shall assess the Owner for the deficit amount, which
assessment shall be payable promptly upon Owner's receipt of the billing.
If Owner shall fail to pay the deficit assessment within 30 days after the
billing date, Owner shall be charged a late fee equal to interest on the
assessed amount from the expiration of such 30 day period until paid in
full at the published prime rate at Firstar Bank plus 4 percentage points.
All future Net Rental Income attributable to the Unit shall be retained by
the Company until all deficit assessments plus interest are paid in full.
Furthermore, to secure payment of all sums due the Company hereunder, the
Company shall have a lien on the Owner's Unit, all interests of Owner
therein, all revenues produced therefrom and Owner's furniture and
equipment located therein. Upon demand by the Company, Owner shall
execute such documents as the Company deems necessary to evidence and
record such lien.
4.4 Payment of Association Charges, Assessments and Fees. For
the convenience of Owner and to facilitate the operation of the Wilderness
Hotel Condominium Association (the "Association"), Owner hereby authorizes
the Company to pay to the Association out of Owner's quarterly
distributable income all fees and unpaid charges and assessments due from
Owner to the Association. If, in the sole discretion of the Company, the
Association shall fail to maintain the common elements of the Hotel
Condominium Project in such condition as to promote and enhance the rental
of the Units, the Company may withhold from the sums payable to the
Association, and expend such sums as are necessary to maintain and repair
the common elements so as so to promote and enhance the rental of the
Units. Maintenance includes security and protection for the lives and
property of the Owners and rental guests.
ARTICLE 5
Accounting
5.1 Books of Account. The Company, and any persons or entity
performing any of the Company's duties hereunder, shall keep complete
books and records covering the rental operations of the Units, and an
ownership register showing the names and addresses of each Owner and the
number of Units held by each of them, all of which shall be maintained at
the Company's corporate headquarters. Owner shall have the right of access
to and inspection of these books and records at all reasonable times. The
Company shall cause the books and records to be kept in accordance with
accounting principles customary to the hotel industry, applied in a
consistent manner and reflecting all rental transactions, including
specifically all transactions relating to Room Operating Expenses and to
the rental or occupancy of the Units.
5.2 Accounting Reports. Promptly after the end of each
calendar year, the Company shall deliver to Owner an audited annual report
containing a complete statement of income and expenses for the Rental Pool
rental operations for that calendar year, together with a statement
showing the amounts allocated to or against the Owner's Hotel account
during such year, all as certified to by a certified public accountant
selected by the Company. The cost of the preparation of these statements
shall be charged proportionately to Owner as a Room Operating Expense.
The Company shall also prepare annually a rental operations budget for the
ensuing 12 month's income and expenses, a copy of which shall be furnished
to Owner upon receipt of his written request.
ARTICLE 6
Taxes, Insurance and Banking
6.1 Taxes. The Company shall not be liable for any federal or
state income or corporate excise taxes attributable to income earned by,
or paid to, Owner under this agency arrangement, or Owner's ad valorem
personal and real property taxes. The Company will, however, collect and
pay to the appropriate entity any sales tax or room tax assessed and
levied by any governmental body, which tax shall be added separately to
the room rate and collected in addition to the room rental charges.
6.2 Insurance. To the extent not already provided by the
Association, the Company shall obtain and maintain such public liability,
property damage, automobile, innkeepers, garagemens, casualty and other
insurance in such amounts and upon such terms as the Company shall deem
advisable. Owner(s) and/or the Association on behalf of the Owners shall
be named as an additional insured. The Company also may obtain and
maintain an insurance policy covering the Furnishings (as defined in
Section 9.1) in all the Units. The premiums paid for these insurance
policies shall be charged proportionately to the Owner(s) as Room
Operating Expenses.
6.3 Banking. The Company shall cause all funds from the rental
operation of the Units to be deposited in a separate bank account or
accounts as shall be determined by the Company. All withdrawals
therefrom shall be made upon checks signed by any person authorized by the
Company to sign them.
ARTICLE 7
Advisory Board
7.1 Advisory Board. The Owners shall select, at their annual
meeting of the Association, five of their number to act as an advisory
group (the "Advisory Board") to the Company in the operation of the Rental
Pools and to discuss with the Company any suggestions the Owners may have
given the Advisory Board in connection with Hotel Condominium Project
matters generally. An executive officer of the Company and the Hotel
Condominium Project general manager shall meet with the Advisory Board at
least quarterly at the Hotel Condominium Project upon the request of the
Advisory Board. The actions of the Advisory Board shall be advisory only
and not binding, and nothing herein shall be construed as giving the
Owners, either collectively or individually, any right to control or to
interfere in any manner with the Company's operation of the Units or the
Hotel Condominium Project. Any and all complaints, suggestions and
comments of any Owner shall be directed to the Company by and through the
Advisory Board.
ARTICLE 8
Term
8.1 Term.
(a) Commencement. The agency created under this Agreement
shall commence on the date hereof and, except as provided in subsection
(b) below, shall continue indefinitely.
(b) Termination. (i) At any time after 20 years following the
date the first completed Unit is placed under the Company's rental
management pursuant to this Agreement as entered into by one of the Owners
(the "First Management Date"), the Owners may, as a group, terminate this
Agreement as entered into by each of them if at a meeting called for the
purpose of such termination, the motion is passed by a two-thirds vote of
all of the Owners. Such termination shall be effective at the end of the
third full calendar month following such meeting. A meeting for the
purposes of terminating this Agreement by all Owners may be called by the
Advisory Board or by Owners owning more than one third of the Units in the
Hotel Condominium Project. THE OWNERS, BY THEIR EXECUTION OF THIS
AGREEMENT, HEREBY ACKNOWLEDGE AND AGREE THAT THE TWENTY (20) YEAR TERM OF
THIS AGREEMENT IS COMMERCIALLY REASONABLE. IN THE EVENT THE TWENTY (20)
YEAR TERM IS EVER DETERMINED TO BE COMMERCIALLY UNREASONABLE, THEN THE
TERM OF THIS AGREEMENT SHALL BE MODIFIED TO A TERM DEEMED TO BE
COMMERCIALLY REASONABLE AND THE REMAINDER OF THIS AGREEMENT SHALL NOT BE
MODIFIED AND SHALL REMAIN IN FULL FORCE AND EFFECT. FURTHER, THE OWNER,
BY HIS/HER EXECUTION OF THIS AGREEMENT, ACKNOWLEDGES AND AGREES THAT
HE/SHE HAS RECEIVED ADEQUATE CONSIDERATION FROM THE COMPANY AND ITS
AFFILIATES BY VIRTUE OF THE BENEFITS AND RIGHTS RECEIVED UNDER THE ACCESS
AND USE AGREEMENT.
(ii) At any time after 3 years following the first management
date, the Company may, upon 90 days prior written notice to Owner,
withdraw as agent hereunder and thereby terminate this Agreement. Such
withdrawal and termination may be given to Owner individually or to all of
the Owners, and shall be effective at the expiration of the 90 day notice
period.
(iii) This Agreement shall automatically terminate, as to a
specific Owner only, upon the bankruptcy, insolvency or dissolution of an
Owner, or upon the death of Owner provided, however, that (A) if Owner is
two or more people owning a Unit as Joint tenants or tenants by the
entirety, then this Agreement shall terminate upon the death or bankruptcy
of the last surviving tenant; and (B) if Owner is two or more people or
entities owning a Unit as tenants in common, then this Agreement shall
terminate upon the death, bankruptcy, insolvency or dissolution of the
persons or entities owning more than a 50% interest in the Unit on a
cumulative basis.
(iv) This Agreement shall automatically terminate, as to a
specific Owner, upon the conveyance or other transfer of Owner's title to
his Unit, whether by sale to a third party, foreclosure by a mortgagee or
otherwise.
(v) Any termination of this Agreement shall be subject to any
then existing Unit rental reservations. An Owner shall receive a refund
of his pro rata share of the balance in the reserve accounts established,
if any, pursuant to Sections 4.3 and 9.3.
(vi) In the event the Owners terminate this Agreement by a vote
of the Owners pursuant to paragraph 8.1(b)(i), then the consideration
granted to the Owners as described herein (i.e., the rights and benefits
granted the Owners under the Access and Use Agreement) shall be rescinded
and of no further force and effect. In that event, all Owners, their
successors or assigns shall have no further rights to use the amenities at
the Wilderness Hotel & Resort.
ARTICLE 9
Furniture and Fixtures Reserve
9.1 Maintenance of Furnishings. During the term of this
Agreement the Unit's interior, the furniture, furnishings, fixtures,
equipment and household items (collectively the "Furnishings") and the
limited common elements, including utility and plumbing systems located
within Owner's Unit, shall be maintained by the Company as it deems
appropriate for the Unit's use as a hotel accommodation. The cost and
expense of replacement or repair of the Unit's interior, its limited
common elements or the Furnishings that may be lost, stolen, damaged or
destroyed during any third party's rental of the Units shall be a Room
Operating Expense.
9.2 Ownership of Furnishing. In connection with Owner's
purchase of the Unit, he obtained an original Furnishings package
containing the number, type and quality of Furnishings for the Unit that
meet the standards established by the Company for all the Units in the
Hotel Condominium Project. These original Furnishings and all replacement
Furnishings for the Unit shall remain Owner's separate property. To
maintain the Unit's suitability for hotel rental, Owner may not alter his
Unit as initially furnished without the prior written consent of the
Company.
9.3 Furnishings Reserve. A common reserve of $300,000 will be
established by the Company from which repairs and maintenance of
Furnishings will be paid as needed and without regard to individual
Owner's contributions thereto. This common reserve will be initially
funded through a monthly charge equal to four percent of Gross Room
Revenues, to be proportionately charged to each Owner's Hotel account as a
Room Operating Expense. Once established, the reserve funds shall be
replenished as needed through assessments charged by the Company, in a
reasonably equitable manner, to each Owner as an additional Room Operating
Expense. Similarly, if the Company determines that the reserve is
inadequate at any time to maintain the quality of the Units as hotel
accommodations, the additional needed funds will be assessed to each Owner
as an additional Room Operating Expense.
ARTICLE 10
Assignment
10.1 Consent to Assignment. The Owner shall not assign this
Agreement without the written consent of the Company. The Company may,
from time to time, without Owner's consent, assign all or a substantial
amount of its duties, functions and discretions under this Agreement to
any recognized hotel management chain, an affiliate entity of the Company,
or to a business entity specifically formed to operate the Hotel
Condominium Project.
10.2 Agency With Transferee. Upon the sale or other
disposition of the Unit, the transferee of the Unit may negotiate a new
rental pooling and agency agreement (the "New Agreement") with the
Company. If the New Agreement is on substantially the same terms as this
Agreement, the parties shall be free to enter into the New Agreement. If
however, the New Agreement is upon terms that differ from the terms of
this Agreement, the Company shall not enter into the New Agreement until
it has received a consent to the New Agreement from two-thirds of the
Owners. To obtain the Owners' consent, the Company shall deliver to each
Owner a written request for the Owner's consent, which request shall
identify the terms in the New Agreement that differ from this Agreement.
Each Owner shall be deemed to have consented to the New Agreement unless,
within 15 days after the Company delivers the request, the Owner delivers
to the Company a written denial of consent to the New Agreement. If more
than one third of the Owners deliver to the Company a denial of consent to
the New Agreement, the Company shall not enter into the New Agreement with
the transferee. The purpose of the consent provision is solely to
preclude the Company from gradually changing the terms and conditions of
this Agreement without Owners approval.
ARTICLE 11
Miscellaneous
11.1 Competing or Related Businesses. The Company (and any
person or entity affiliated with the Company, including any officer or
director of the Company or of any such affiliated entity) and Owner may
acquire real properties for their own account, or engage in the
acquisition, development, operation or management of real estate on behalf
of other partnerships, joint ventures, corporations or other business
ventures formed by them or in which they may have an interest, including
without limitation, business ventures similar to, related to or in direct
or indirect competition with the rental operations of the Hotel
Condominium Project. Owner shall not have any right by virtue of this
Agreement in or to such other business ventures or income or profits
derived therefrom.
11.2 Conflicts of Interest.
(a) Additional Employment. The fact that Owner or the Company,
or any person or entity affiliated or related thereto, is employed by, or
is directly or indirectly interested in or affiliated or connected with,
any person, firm or corporation (a) employed by the Company, in connection
with the Unit rental operations, to render or perform management or other
services of any kind, or (b) from or to whom the Company may buy, sell,
lease or otherwise acquire or dispose of any property which the Hotel
Condominium Project, in connection with the Unit rental operations, may
have or desire to have an interest in, shall not prohibit the Company from
employing such person, firm or corporation, or from otherwise dealing with
the same. Owner shall not have any rights in or to any income or profits
derived from any such employment or other dealings by any such person,
firm or corporation. It is expressly understood, however, that any such
employment or other dealings shall be on terms not less favorable to the
Unit rental operations than the terms for comparable services or
transactions reasonably available from unrelated persons, firms or
corporation.
(b) Conflicts Within Hotel Management. The Company will act as
agent for the Owners under this Agreement. During the development stage
of the Units, the Company will control the board of directors of the
Association. The Company intends to enter into a contract with the
Association for the management, operation and maintenance of the common
areas controlled by the Association. The Affiliates of the Company will
own and operate the Wilderness Hotel & Resort. The officers and directors
of the Company are also officers or directors of Wild Golf, Inc.,
Wilderness Hotel & Resort, Inc. and WILBAR, Inc. and have been involved
directly with the development and promotion of the Wilderness Hotel &
Resort and may be involved, directly or indirectly, in the operation of
the Units. Accordingly, the Company may have conflicts of interest with
regard to: (1) its services to be performed for the Owners under this
Agreement and for the Association under a common areas management
agreement; (2) the remuneration to be paid for providing such services;
(3) its relationship as manager of the common areas for the Association,
and its initial control of the board of directors of the Association; and
(4) the manner in which the obligations of the Wilderness Hotel & Resort
management and the Association have to one another are performed.
(c) Conflicts Within Wilderness Hotel & Resort. Wilderness
Hotel & Resort, Inc., Wild Golf, Inc. and WILBAR, Inc. (collectively the
"Affiliates") currently operate and perform management services for the
Wilderness Hotel & Resort. The Company and its Affiliates intend to
develop, market and manage, in the future, other hotels, condominiums, or
hotel-condominium projects, to organize condominium or homeowners'
associations for the operation of such projects, to designate its
employees as temporary directors for such associations and to act as
rental agent and managers for the owners of units in such projects. The
existing Wilderness Hotel & Resort and future projects at the Wilderness
Hotel & Resort will be in competition with the Units for rental
accommodation.
(d) Company Policies. The Company and its Affiliates have
adopted the following policies with respect to the conflicts of interest
set forth above, however, these policies may be varied if circumstances
change:
(i) Transactions Within Hotel Management. The Company will
provide rental management services for the Units under this Agreement.
The Company intends to enter into a management agreement with the
Association to provide management services for the common areas of the
Units and intends to enter into the Access and Use Agreement with Owners
to provide Owners with certain access and use of the Wilderness Hotel &
Resort recreational facilities. It is the policy of the Company that the
Company's operation of the Units and the common areas and its, or any
Affiliate's, relationship with the Owners or the Association, will be on
terms no less favorable to the Owners or the Association than the terms
pursuant to which such operations or relationships with unrelated persons
or entities are or could be conducted.
(ii) Competition by Affiliates Within Wilderness Resort. The
Company, Wilderness Hotel & Resort, Inc., Wild Golf, Inc. and Wilbar, Inc.
intend to cooperate with each other in providing appropriate
accommodations for prospective transient hotel tenants. The Units,
together with all other condominium Units built in the future will be
given a fair exposure to prospective transient hotel tenants that contact
the Company for reservations.
11.3 Notices. All notices, demands and communications given
pursuant to this Agreement shall be deemed sufficiently given if
personally served or mailed by registered or certified mail, return
receipt requested, and addressed as follows, or to such other address as a
party may from time to time designate in writing:
To the Company: Wilderness Development Corporation
511 E. Adams Street
Wisconsin Dells, WI 53965
With a Copy to: Attorney Timothy C. Sweeney
and Attorney Patrick S. Sweeney
Sweeney & Sweeney, S.C.
440 Science Drive, 4th Floor
Madison, WI 53711
To Owner: To Owner's address as set forth below.
Any notice given hereunder by mail shall be deemed delivered when
deposited in the United States mails, postage prepaid.
11.4 Liability of the Company; Indemnification. The Company
shall not be liable to Owner for the performance of any act or for its
failure to act so long as it is not guilty of fraud, gross negligence or
willful misconduct in such performance or failure. The Owners of all the
Units shall indemnify the Company, any employee or agent of the Company,
and any Hotel Condominium Project employee or agent, against any loss or
threat of loss as a result of any claim or legal proceeding relating to
the performance or nonperformance of any act concerning the operation of
the Rental Pools; provided, however, that with respect to the subject
matter of the claim or legal proceeding, the party against whom the claim
is made or legal proceeding is directed was not guilty of fraud, gross
negligence or willful misconduct in such performance or nonperformance.
The indemnification authorized by this section 11.4 shall include payment
of (a) reasonable attorney's fees or their expenses incurred in settling
any claim or threatened action or incurred in any finally adjudicated
legal proceeding; and (b) the removal of any liens affecting any property
of the indemnitee. All indemnification shall be made from the proceeds of
the rental operation of the Units and Owner shall not be personally liable
to any indemnitee.
11.5 Owner's Acknowledgments. By the execution hereof, Owner
and the Company intend to create an agency relationship between the
Company, as an independent contractor, and the Owner. The parties do not
intend the agency relationship hereby created to be a partnership or joint
venture between themselves, and the Owner does not intend this Agreement
to create a partnership or joint venture among all or any number of the
Owners. If, however, this Agreement is deemed to create a partnership for
income tax purposes and if the Management Fee paid by Owner to the Company
pursuant to Section 3.2 hereof is not deductible by Owner for income tax
purposes because such Management Fee is characterized as partnership
distributions, then before any income of the partnership created by this
Agreement is allocated to Owner, such income shall be first allocated to
the Company to the extent of any such Management Fee paid to the Company
and characterized as a partnership distribution. Owner acknowledges that
the Rental Pools established pursuant to this Agreement is a speculative
venture and there is no guaranty, in fact or by implication, that Owner
shall receive any, or any specific, sum of money in any given period of
time on account of his entry into this Agreement.
11.6 No Transfer of Interest in Real Estate. Ownership of the
Unit is and shall continue to be held by Owner and shall not result in any
transfer of any ownership interest or right to the Company or any other
party. The agency established pursuant to this Agreement is for the
purpose of establishing a Rental Pool program for the Units and Owner has
granted to the Company only the limited right to rent the Unit and pool
the income derived therefrom, as described herein.
11.7 Entire Agreement and Amendments. This Agreement
constitutes the entire understanding between the parties with respect to
the subject matter hereof. Amendments to this Agreement that (a) are of
an inconsequential nature and do not affect the rights of the Owners in
any material respect, or (b) are, in the opinion of counsel to the
Company, necessary to prevent the Owners or the Company from being in any
manner subject to adverse income tax consequences not intended by the
parties in negotiating the provisions of this Agreement, may be made by
the Company through use of the power of attorney granted in Section 1.1
above. Any amendment made pursuant to subsection (b) of the preceding
sentence shall be deemed effective as of the date of this Agreement.
Except as provided in the foregoing sentences, this Agreement may only be
amended or terminated by written instrument duly authorized and executed
pursuant to all requisite authorization on the part of all of the parties
hereto.
11.8 Successors and Assigns. Subject to the provisions of
Section 10, all of the terms and conditions of this Agreement shall be
binding upon and shall inure to the benefit of the Company and Owner,
their respective personal representatives, successors and assigns.
11.9 Captions and Pronouns. The captions and headings of the
various sections of this Agreement are for convenience only and are not to
be construed as modifying in any way the scope or intent of the provisions
thereof. Wherever the context requires or permits, the singular shall
include the plural, the plural shall include the singular, and the
masculine, feminine and neuter shall be freely interchangeable. If this
Agreement shall be signed by more than one person as Owner, all
obligations hereunder on the part of Owner to be observed and performed
shall be joint and severable.
11.10 Provisions Severable. The unenforceability or invalidity
of any provision or provisions hereof shall not render any other provision
or provisions herein contained unenforceable or invalid.
11.11 Governing Law. This Agreement and its application shall
be construed under and governed by the laws of the State of Wisconsin.
EXECUTED as of the date first above written.
THE COMPANY:
WILDERNESS DEVELOPMENT CORPORATION,
a Wisconsin corporation
ATTEST:
By:_________________________ By:________________________________
Secretary President
OWNER:
___________________________________
(Signature)
___________________________________
(Signature)
Unit No. __________________________________
Purchase Price $____________________________
EIN or Social
Security Number _________________________
Name (Print) ______________________________
Name (Print) ______________________________
Street Address ____________________________
City State, Zip Code ______________________
Preliminary Price List
PHASES I AND II
Number of Units Description of Unit Initial Prices
18 Type A-1 Unit $114,900.00
20 Type A-Unit $120,900.00
9 Type B-1 Unit $128,900.00
10 Type B Unit $131,900.00
21 Type C-1 Unit $130,900.00
19 Type C Unit $136,900.00
10 Type D-1 Unit $145,900.00
10 Type D Unit $148,900.00
8 Type E Unit $192,900.00
4 Type F Unit $207,900.00
2 Type G $182,900.00
2 Type H $177,900.00
DECLARATION OF CONDOMINIUM OWNERSHIP
AND OF EASEMENTS, RESTRICTIONS, COVENANTS AND
CONDITIONS FOR WILDERNESS HOTEL CONDOMINIUM,
a hotel condominium
THIS DECLARATION is made this ___ day of ______________, 1996 by
WILDERNESS HOTEL & RESORT, INC., a Wisconsin corporation (the "Declarant")
and Thomas J. Lucke and Terri L. Lucke (the "Luckes").
R E C I T A L S:
1. Declarant is beneficial owner and the land lessee and the
Luckes are the title owners and land lessor and the Declarant and the
Luckes are together the owners in fee simple of certain real estate
hereinafter described, in the Village of Lake Delton, Sauk County,
Wisconsin; and
2. The Luckes consent to and authorize the Declarant to, and
do hereby submit and subject such real estate, together with all
buildings, structures, improvements and other permanent fixtures of
whatsoever kind now or hereafter thereon, and all rights and privileges
belonging or in any way pertaining thereto, to a Declaration of
Condominium pursuant to the provisions of the Wisconsin Condominium
Ownership Act, Chapter 703 of the Wisconsin Statutes, as in force on the
date of this Declaration (the "Act"); and
3. The Declarant desires to establish certain rights,
conditions, restrictions, covenants and easements in, over and upon said
real estate for the benefit of Declarant and all future owners of any part
of said real estate, and any Unit or Units thereof, or therein contained,
and to provide for the harmonious, beneficial, and proper use and conduct
of the property and all Units; and
4. The Declarant desires and intends that the several Unit
Owners, mortgagees, occupants, and other persons hereafter acquiring any
interest in the property shall at all times enjoy the benefits of, and
shall hold their interests subject to the rights, conditions,
restrictions, covenants and easements hereinafter set forth, all of which
are declared to be in furtherance of a plan to promote and protect the
cooperative aspect of the property and are established for the purpose of
enhancing and perfecting the value, desirability and attractiveness of the
property;
NOW, THEREFORE, the Declarant, as the title holder of the real
estate referred to above and described at greater length below, and for
the purposes above set forth, DECLARES AS FOLLOWS:
ARTICLE I
DEFINITIONS AND LEGAL DESCRIPTION OF LAND
Section 1. Legal Description of Land. The real estate which is
hereby submitted and subjected to the provisions of the Act are two (2)
parcels of land located in the Village of Lake Delton, Sauk County,
Wisconsin, as more particularly described in Exhibit 1.1.A ("Parcel A,"
"Parcel B," the "Property" and/or the "Condominium Property").
For the purpose of brevity and clarity, certain words and terms
used in this Declaration are defined as follows:
Section 2. Association. "Association" shall mean and refer to
WILDERNESS HOTEL CONDOMINIUM ASSOCIATION, INC., a corporation formed under
the nonstock corporation statute, Chapter 181 of the Wisconsin Statutes,
its successor and assigns.
Section 3. Owner. "Owner" shall mean and refer to the record
owner, whether one or more persons or entities, of a fee simple title to
any unit, or a land contract buyer, but excludes those having such
interest merely as security for the performance of an obligation.
Section 4. Unit.
4.1 Definition. Subject to subparagraphs 6(b), 6(c), and
6(d) of Article I, Section 6 hereof, "Unit" means unit as defined by the
Act and is used herein to refer to the hotel living units located or to be
located on the Condominium Property. A Unit shall consist of the space
described herein and exhibited on pages ____ of Exhibit A and shall
include exterior doors and windows of the respective Units. Further, the
individual heating and air-conditioning system serving a Unit shall be
deemed to be a part of the Unit which it is serving, notwithstanding that
a portion thereof might be located outside of the Unit boundaries. In the
event that the actual physical location of any Unit at any time does not
precisely coincide with Exhibit A and subsequent amendments, the actual
physical locations shall control over the locations, dimensions, and
descriptions contained in Exhibit A and subsequent amendments.
4.2 Unit Boundaries. Each Unit shall be that part of the
building containing the Unit that lies within the following boundaries of
the Unit:
a. Upper Boundary. The upper boundary of a Unit shall be
the horizontal plane (or inclined plane or curved surface, as the
case may be) of the lowest surface of the finished ceiling extended
to the intersection with the perimetrical boundaries.
b. Lower Boundary. The lower boundary of a Unit shall be
the horizontal plane of the upper surface of the finished floor or
slab extended to the intersection with the perimetrical boundaries.
c. Perimetrical Boundaries. The perimetrical boundaries
of the Unit shall be the vertical planes (or inclined planes or
curved surfaces, as the case may be) of the finished interior of the
walls bounding the Unit extended to the intersections with each other
and with the upper and lower boundaries.
d. Other Parts of Unit. In addition, a Unit includes the
following items serving the particular Unit although they may be
outside the defined cubicle of air;
(1) all exterior doors and windows (including any
screens and storm windows) and all their opening,
closing and locking mechanisms and hardware;
(2) all wall, floor, baseboard and ceiling mounted
electrical fixtures and equipment, outlets and
switches and the junction boxes serving them;
(3) all plumbing fixtures and the piping, valves and
other connecting and controlling materials or
devices lying between the fixtures and the main
water or sewage lines connecting to the lowest
story of the Unit;
(4) all decorative plaster, paint, woodwork,
carpeting, vinyl, fixtures or other aspects of
the interior walls, floors and ceilings of a
Unit;
(5) all fireplace units, mantels, screening, inserts,
chimneys, piping, valves and other connecting and
controlling materials or devices serving them;
and
(6) all Limited Common Elements appurtenant to the
Unit.
e. Heating and Air Conditioning Systems. The heating and
air conditioning equipment and devices (including heaters, air
conditioners, condensers, pipes, valves, radiators, thermostats, duct
work, pumps and similar items) serving the Units shall be part of the
Units.
f. Identification of Units. Units are identified by
number and location on the Condominium Plat of the Condominium. This
description includes the interests pertaining to the Unit in the
Common Elements and Limited Common Elements and the rights and
obligations created under this Declaration.
4.3 Types of Unit. There shall be twelve (12) types of
Units: Types A-1, A, B-1, B, C-1, C, D-1, D, E, F, G and H, as further
set forth in Exhibit A. Unit types A, B, C and D are substantially
identical and distinguished (i.e., "A-1" versus "A") by their views. The
Unit types without a "-1" designation enjoy a golf course and pool view.
The Unit types and Unit numbers are further set forth on pages ___ of
Exhibit A.
Section 5. Unit Number. "Unit Number" shall mean the number,
letter, or combination thereof, identifying a Unit and is further set
forth in Exhibit A.
Section 6. Common Elements. "Common Elements" or "Common
Areas" means all of the Property, except the Units and Limited Common
Elements, and shall include, but not be limited to:
a. The land underneath the improvements and all
improvements and other parts of the Property not included within the
respective Units or Limited Common Elements, including but not
limited to: the land underneath the first floor of the Units; crawl
spaces throughout the improvements; foundation walls and/or slabs;
the roofs; all structural beams, posts and members; exterior walls;
hallways; lobbies; stairs; stairwells; common storage rooms;
elevators; equipment rooms; common laundry rooms; common shower
bathrooms, and lockerrooms; and meeting rooms;
b. Easements through the Units, whether or not shown on
the Plat, for conduits, ducts, plumbing, wiring and other facilities
for furnishing the utility services to the various Units, to the
Common Elements and to the Limited Common Elements;
c. All structural beams, posts and members within a Unit
and an easement of support in every portion of a Unit which
contributes to the support for the building;
d. Any heating, air conditioning or other utility areas,
equipment and devices and installations and all utility services
which are available to more than one Unit, or to the Common Elements;
e. All sidewalks, entranceways (including entranceways,
windows and doors) and other means of ingress and egress located
within the Property;
f. All electrical apparatus and wiring, television
cables, plumbing pipes and apparatus, telephone wires, and all other
ducts, conduits, cables, wires or pipes within the Common Elements,
but not such equipment as is described in Paragraph 4.2(d)(2) and (3)
of Article I; and
g. All tangible personal property owned by the
Association required for the maintenance and operation of the
Property and for the common use and enjoyment of the Owners.
Section 7. Limited Common Elements. "Limited Common Elements"
means the patios, balconies, privacy walls, balcony railings, patio and
balcony flooring and other portions of the Common Elements identified as
Limited Common Elements on Exhibit A, which are reserved for the use of
the Owner of one or more Units to the exclusion of all other Owners.
Section 8. Declarant and Developer. "Declarant" shall mean and
refer to Wilderness Hotel & Resort, Inc., a Wisconsin corporation.
"Developer" shall mean and refer to Wilderness Development Corporation, a
Wisconsin corporation, and its successors and assigns. Developer may also
be referred to as the "Company."
Section 9. Mortgage. "Mortgage" shall mean any Mortgage or
other security instrument, including a land contract, by which a Unit or
any part thereof is encumbered.
Section 10. Mortgagee. "Mortgagee" shall mean any Person named
as the Mortgagee under any Mortgage under which the interest of any Owner
is encumbered, or any land contract vendor of any Unit, or any successor
to the interest of such person under such Mortgage or such land contract.
Section 11. Person. "Person" shall mean an individual,
corporation, partnership, limited liability partnership, limited liability
company, association, trust or other legal entity.
Section 12. Occupant. "Occupant" shall mean any person whom an
Owner agrees may occupy his or her Unit so as to exclude the Owner from
the right of occupancy during part or all of the period of such occupancy,
whether or not a written Occupancy Agreement is executed, and whether or
not the Occupant pays consideration for the right to use the Unit. There
may be more than one Occupant occupying a Unit at one time.
Section 13. Guest. "Guest" means a person whom an Owner or an
Occupant permits to occupy a Unit while the Owner or Occupant also has the
right to occupy the Unit, whether or not the Owner or Occupant actually
occupies the Unit during all of the period of the Guest's occupancy.
Section 14. Common Expenses. "Common Expenses" means all
expenses of the Association, as set forth more fully in Section 2 of
Article VIII, which shall be assessed to the Unit Owners from time to time
by annual or special assessments.
Section 15. RPA Agreement. "RPA Agreement" shall mean the
Rental Pooling and Agency Agreement under which the Company will act as
exclusive agent of Owner for rental of the Unit as hotel rental
accomodations.
Section 16. Construction. "Construction," "Constructed" or any
derivation thereof, means full completion of a Unit(s) and accompanying
Limited Common Element(s) and Common Area(s) to the extent the Unit(s)
is(are) ready for occupancy and use as hotel rental accommodations.
Section 17. Resort. "Resort" means the Wilderness Hotel &
Resort owned and operated by Declarant, or any successor or assign.
Other terms not defined herein shall have the meaning assigned
to them by the Act.
ARTICLE II
PROPERTY AND UNITS: SUBMISSION TO ACT
Section 1. Submission of Property to the Act. The Declarant
and the Luckes hereby submit the Property, and all buildings and Units,
and improvements constructed or to be constructed thereon to the
provisions of the Act.
Section 2. Identification. Each Unit shall be specifically
designated by its Unit Number as set forth in Exhibit A attached hereto
and hereby made a part of this Declaration. Every deed, Occupancy
Agreement, mortgage, or other instrument may legally describe a Unit by
its Unit Number and every such description shall be deemed good and
sufficient for all purposes, as provided in the Act. The Developer shall
construct 133 Units in two (2) phases. Phase I shall consist of sixty-one
(61) Units on Parcel A of the Property, and Phase II shall consist of
seventy-two (72) Units on Parcel B of the Property.
ARTICLE III
COMMON ELEMENTS AND LIMITED COMMON ELEMENTS
Section 1. Ownership of Common Elements. Each Owner shall be
entitled to and shall own an undivided interest in the Common Elements as
a tenant-in-common with all other Unit Owners of the Property, and, except
as otherwise limited in this Declaration, shall have the right to use the
Common Elements for all purposes incident to the use and occupancy of such
Owner's Unit as a hotel condominium, and such other incidental uses
permitted by this Declaration, which right shall be appurtenant to and run
with such Unit. Each Unit's percentage of ownership in the Common
Elements shall be equal to a fraction in which the numerator shall be the
square feet in the Owner's Unit and Limited Common Elements and the
denominator shall be the total square feet of all Constructed Units and
Limited Common Elements in the Condominium. A Unit's undivided interest
in the Common Elements will be automatically amended upon the Construction
of additional Units. Each Unit's percentage of ownership in the Common
Elements upon the Construction of Phases I and II shall be as set forth in
Exhibit B.
Section 2. No Partition of Common Elements. There shall be no
partition of Common Elements through judicial proceedings or otherwise
until this Declaration is terminated and the Property is withdrawn from
its terms or from the terms of any statute applicable to condominium
ownership; provided, however, that if any Unit shall be owned by two or
more co-owners as tenants-in-common or as joint tenants, nothing herein
contained shall be deemed to prohibit a voluntary or judicial partition of
said Unit Ownership between such co-owners.
Section 3. Restrictions on Use of Common Elements. The Common
Elements shall be used only for access, ingress and egress to and from the
respective Units (and for such other purposes as authorized herein or by
the Association) by the Unit Owners, occupants and guests and their
respective authorized visitors, for those hotel condominium purposes
permitted by the rules and regulations promulgated by the Board, and for
such other purposes which are incidental to the hotel condominium use of
the Units. Any such use is subject always to the rules and regulations.
All provisions of this Declaration restricting or limiting the use of the
Units shall apply to the use by the Unit Owners of the Common Elements.
Anything in this Declaration to the contrary notwithstanding, Declarant
and/or Developer, their agents, successors or assigns may use the Units
owned by the Declarant and/or Developer and the Common Elements for
purposes related to the sale of the Units by Declarant and/or Developer,
their agents, successors or assigns, and may maintain signs, and shall
have a right of ingress and egress, for the foregoing purpose.
Section 4. Use of Patio and Balcony Limited Common Elements.
The Patio and Balcony and other Limited Common Elements may be used by the
Owner, occupants and guests of the Unit to which such Limited Common
Elements is appurtenant for sunbathing, social gatherings and other
reasonable hotel condominium activities without prior notice to or
approval of the Board of Directors, but subject to such rules and
regulations as the Directors may promulgate. All provisions of this
Declaration restricting or limiting the use of the Units shall also apply
to uses by the Unit Owners of the Limited Common Elements.
ARTICLE IV
OTHER PROPERTY RIGHTS AND OBLIGATIONS OF OWNERS
Section 1. Owner's Right to Ingress and Egress and Support.
Each Owner shall have the right to ingress and egress over, upon and
across the Common Elements necessary for access to an Owner's Unit and
such rights shall be appurtenant to and pass with the title to each Unit.
Each Owner shall have the right to ingress, egress and use of
driveways, walkways and parking facilities over, upon and across the land
contiguous to the Condominium Property owned by Declarant and the Luckes
and used for such purposes by the Resort as shall be necessary for access
to and use of an Owner's Unit. Such right of ingress, egress and use
shall be on the same terms and conditions of such use by paying patrons of
the Resort, and shall be appurtenant to and pass with the title to each
Unit.
Section 2. Use of Units. Each Unit shall be used for hotel
condominium purposes only. Occupancy limits for each Unit shall be
initially established in the description of the Units in Exhibit A, as may
be further modified by the rules and regulations promulgated by the Board
or imposed by zoning rules and regulations. As a hotel condominium, no
Unit Owner shall utilize or occupy a Unit as the Owner's permanent and
legal residence. The Village of Lake Delton defines "Hotel" to mean: ".
. . all places wherein sleeping accommodations are offered to pay to
transients, in 5 or more rooms, and all places used in connection
therewith." Except for operation of the Unit as a hotel condominium, no
other trade or business of any kind may be carried on therein. No Unit
may be divided into a smaller Unit, nor shall part of any Unit be sold or
otherwise transferred.
Section 3. Rental of Units. All Units offered for rent as
hotel rental accommodations shall utilize the Declarant or its affiliates,
successors or assigns as agent for the Owner pursuant to the RPA Agreement
as further set forth in Exhibit C or any successor thereto. All owners
must execute such RPA Agreement as a condition of ownership of a Unit. No
Owner shall rent or accept any compensation for rent other than pursuant
to the RPA Agreement.
Section 4. Use of Common Elements. There shall be no
obstruction of the Common Elements, nor shall anything be kept or stored
on any part of the Common Elements without the prior written consent of
the Association except as specifically provided herein. Nothing shall be
altered on, constructed on, or removed from the Common Elements except
upon the prior written consent of the Association. No garbage or rubbish
containers shall be placed or kept on any Common Element or Limited Common
Element, except in places specifically designated by the Association.
Section 5. Prohibitions of Damage and Certain Activities.
Nothing shall be done or kept in any Unit, on any Limited Common Element
or on any Common Element or any part thereof which would increase the rate
of insurance on the premises or any part thereof over what the
Association, but for such activity, would pay, without the prior written
consent of the Association. Nothing shall be done or kept in any Unit, on
the Limited Common Elements or on the Common Elements or any part thereof,
which would be in violation of any statute, rule, ordinance, regulation,
permit or other validly imposed requirement of any governmental body. No
damage to, or waste of, the Limited Common Elements or Common Elements or
any part thereof shall be committed by an Owner, and each Owner shall
indemnify and hold the Declarant, Association and other Owners harmless
against all loss to the Association or other Owners resulting from any
damage or waste caused by him or his Occupants or Guests. No noxious,
destructive, illegal or offensive activity shall be carried on in any
Unit, on the Limited Common Elements, or on Common Elements or any part
thereof, nor shall anything be done therein which may be or may become an
annoyance or nuisance to any other Owner or occupant or to any other
person at any time lawfully occupying the Unit. Use of radios, stereos,
television, musical instruments, mechanical equipment and other devices
emitting sound shall be limited to volumes which are not audible to other
Unit Owners or occupants in their Units. Electrical devices for the
control of insects shall not be permitted.
Section 6. Animals. No animals or birds shall be permitted
within the Units or on the Limited Common Elements or Common Elements,
except that a visually impaired Owner, Occupant or guest may be assisted
by a dog trained to assist the visually impaired.
Section 7. Rules and Regulations. No Owner shall violate the
rules and regulations for the use of the Units, the Limited Common
Elements and the Common Elements as adopted from time to time by the
Association.
Section 8. Delegation of Use. Any Owner may delegate, but not
rent, in accordance with the RPA Agreement, By-Laws, the Rules and
Regulations or this Declaration, an Owner's right of enjoyment of the
Unit, its Common Elements and facilities to the members of Owner's
immediate family, to Occupants and to Guests invited by the Owner. Any
Owner may delegate in accordance with the RPA Agreement, By-Laws, the
Rules and Regulations or this Declaration, an Owner's right of enjoyment
of the Unit, its Common Elements and facilities to occupants secured on
behalf of Owner by Wilderness Hotel and Resort, Inc., Wilderness
Development Corporation, their successors or assigns, serving as the
qualified hotel condominium rental agent of Owner. Each Owner shall be
responsible for all of the Unit Owner's obligations in connection with the
use of the Unit and the Common Elements by Owner, Guests and Occupants.
An Owner shall be responsible for all damages to the Common Elements,
Limited Common Elements and Units in connection with the use of the Unit
by Owner, Occupants or Guests. Except as expressly set forth above,
nothing herein shall be deemed to relieve any party of any liability under
common law or statutory tort principles.
Section 9. Separate Mortgages of Units. Each Unit Owner shall
have the right to mortgage or encumber their own respective Unit, together
with their respective ownership interest in the Limited Common Elements
and the Common Elements. No Unit Owner shall have the right or authority
to mortgage or otherwise encumber in any manner whatsoever the Property or
any part thereof, except an Owner's own Unit and Owner's own respective
ownership interest in the Limited Common Elements and the Common Elements.
Section 10. Separate Real Estate Taxes. Real estate taxes are
to be separately taxed to each Unit Owner for an Owner's Unit and
corresponding percentage of ownership in the Common Elements, as provided
in the Act. In the event that, for any year, such taxes are not
separately taxed to each Unit Owner, but are taxed on the Property as a
whole, then each Unit Owner shall pay a proportionate share thereof,
allocated in accordance with an Owner's respective percentage of ownership
interest in the Common Elements.
Section 11. Maintenance, Repairs and Replacement.
a. All maintenance, repairs and replacements to the
Common Elements (unless necessitated by negligence, misuse or neglect
of a Unit Owner, in which case such expense shall be charged to such
Unit Owner as set forth in paragraph (d) below), shall be made by the
Board of Directors and charged to the Unit Owners as a common expense
in the manner provided herein.
b. The Association shall furnish, and be responsible for
all standard decoration, furnishing, housekeeping, maintenance,
repairs and replacement of interior surfaces and furnishings of each
Unit; all utility lines, mechanical equipment, heating, ventilation
and air-conditioning equipment and fixtures which serve the Units;
electrical fixtures and equipment which are located within any Unit;
and glass surfaces, screens, doors, storm doors, windows, and door
and window hardware appurtenant to the Units, and shall be charged to
the Unit Owner or Owners as a Special or Common Expense in the manner
provided herein (unless necessitated by negligence, misuse or neglect
of a Unit Owner, in which case such expense shall be charged to such
Unit Owner as set forth in paragraph (d) below). Notwithstanding the
foregoing, with the prior written consent of the Association, a Unit
Owner may elect to supplement and/or personalize furnishings within
the Unit. The expense for maintaining, repairing, and replacing any
such supplemental furnishings shall be borne solely by each such
Owner.
c. No Unit Owner may perform any alteration without the
prior written consent of the Board of Directors. The Board of
Directors shall not approve any alteration which may jeopardize the
soundness or safety of the property, reduce the rental appeal of the
property, reduce the value thereof, or impair any easement or
hereditament.
d. In the event that the need for maintenance, repairs or
replacement of a Unit, Common Element or Limited Common Element is
caused through the willful or negligent act of the Owner, his family,
or nonrenting occupant or Guest, the cost of such maintenance,
repairs or replacement shall be added to and become a part of the
assessment to which such Unit is subject.
e. The Board of Directors shall annually budget and
provide for funds necessary to perform its duties hereunder,
including but not limited to reserves for repairs or replacements.
Section 12. Common Surpluses. All common surpluses, in excess
of desired reserves, shall be credited to Unit Owners' assessments for
Common Expenses in proportion to their obligation for assessment. The
Association may, from time to time, provide for other common use of such
surpluses.
Section 13. Certain Additional Restrictions. In addition to
the other restrictions and limitations set forth herein, no Unit Owner
shall do any of the following without the prior written consent of the
Board:
a. Paint or otherwise change the appearance of any
exterior wall, door, window, patio, balcony or any exterior surface;
place any draperies or curtains at the windows of any Unit; tint,
color or otherwise treat or apply anything to any window which will
adversely affect the uniform exterior appearance of the building;
plant any planting outside of a Unit; erect any exterior lights or
signs; erect or attach any structures or fixtures within the Common
Elements;
b. Erect, construct or maintain any garbage or refuse
receptacles, or other equipment or structures on the exterior of the
building or on or in any of the Common Elements;
c. Hang any laundry, garments, or other unsightly objects
which are visible outside of the Unit;
d. Allow anything to remain in the Common Areas which
would be unsightly or hazardous;
e. Permit the use of a Unit by Occupants whom the Owner
knows or ought to know intend to violate any terms of the RPA
Agreement, this Declaration, occupancy limits or other rules and
regulations promulgated by the Board;
f. Park commercial vehicles, trucks, boats, campers,
trailers, mobile homes and similar vehicles in any parking area,
except any area designated by the Board for such purpose, and except
service vehicles during the time they are actually serving the Unit
or Common Elements;
g. Erect, construct or maintain any antennas on the
exterior of any building; and
h. Erect any fences, whether on the Patio Limited Common
Elements or elsewhere.
Nothing herein shall be deemed to prevent the Board from
promulgating rules and regulations barring or limiting other activities
not restricted or limited in this Declaration, except to the extent such
activities are expressly permitted.
Section 14. Signs. No signs shall be displayed from a Unit or
the Common Elements except those of the Declarant, Developer and the
Association.
ARTICLE V
ASSOCIATION MEMBERSHIP AND VOTING RIGHTS
Section 1. Membership. Every Owner shall be entitled and
required to be a member of the Association. If title to a Unit is held by
more than one person, each of such persons shall be members. An Owner of
more than one Unit shall be entitled to one membership for each such Unit.
Each such membership shall be appurtenant to the Unit upon which it is
based and shall be transferred automatically by conveyance of that Unit.
No person other than an Owner, Declarant, or Developer may be a member of
the Association, and membership in the Association may not be transferred
except in connection with the transfer of title to a Unit; provided,
however, that the rights of voting may be assigned to a Mortgagee as
further security for a loan secured by a mortgage on a Unit.
Section 2. Voting. Each Unit Owner is entitled to one vote for
each Unit owned, subject to suspension as set forth herein. When more
than one person holds an interest in a Unit, such Owners shall determine
among themselves how the Unit's vote shall be cast on each issue, but the
Unit's entire vote on the issue shall be cast indivisibly, i.e., there
shall be no split vote. Such votes may be cast by the Unit Owner or
Owners or by proxy or as permitted in the Association By-Laws.
ARTICLE VI
RIGHTS AND OBLIGATIONS OF THE ASSOCIATION
Section 1. The Common Elements. The Association, subject to
the rights and responsibilities of the Owners set forth in this
Declaration, shall be responsible for the exclusive management and control
of the Common Elements and all improvements thereon (including furnishing
and equipment related thereto), and shall keep the same in good, clean,
attractive and sanitary condition, order and repair.
Section 2. Services. The Association may obtain and pay for
the services of any person or entity to manage its affairs and perform its
duties under this Declaration, or any part thereof, to the extent it deems
advisable, as well as such other personnel as the Association shall
determine to be necessary or desirable for the proper operation of the
Common Elements, whether such personnel are furnished or employed directly
by the Association or by any person or entity with whom or which it
contracts. The Association may obtain and pay for legal and accounting
services necessary or desirable in connection with the operation of the
Common Elements or the enforcement of this Declaration.
Section 3. Personal Property for Common Use. The Association
may lease or acquire and hold for the use and benefit of all of the Owners
tangible and intangible personal property, and may dispose of the same by
sale or otherwise, and the beneficial interest in any such property shall
be deemed to be owned by the Owners in the same proportion and in the same
manner as their respective interests in the Common Elements. Such
interest shall not be transferable except with the transfer of a Unit. A
transfer of a Unit shall transfer to the transferee ownership of the
transferor's beneficial interest in such property without any reference
thereto. The transfer of title to a Unit under foreclosure shall entitle
the purchaser to the interest in such personal property associated with
the foreclosed Unit. The Association may decide to charge for the use of
such personal property by Owners or their Occupants or Guests. Nothing
herein shall prevent the Association from permitting a third party who
owns or leases such personal property from installing it on the
Condominium for the use and benefit of all the Owners.
Section 4. Repairs. The Association shall maintain, repair and
replace promptly, at the Association's expense, except as otherwise set
forth herein, all Common Elements, including but not limited to:
a. All boundary walls of a Unit contributing to the
support of the building, including but not limited to, the roofs and
exterior walls of buildings and all fixtures on the exterior,
boundary walls of Units, floor and ceiling, slabs, crawl spaces, and
load-bearing walls except interior surfaces (including wall and
ceiling materials), hallways, lobbies, stairs, stairwells, common
storage rooms, elevators, equipment rooms, common laundry rooms,
common shower bathrooms and lockerrooms and heating rooms;
b. All conduits, ducts, plumbing, wiring and other
facilities for the furnishing of utility services contained in the
portions of a Unit maintained by the Association; and all such
facilities contained within a Unit that serve part or parts of the
Condominium other than the Unit in which they are contained;
c. All property, real and personal, owned by the
Association and all Common Elements (other than such Limited Common
Elements which this Declaration requires the Owner to maintain) of
the Association.
d. All other items which the Board of Directors from time
to time determines shall be maintained, repaired or replaced by the
Association.
e. All incidental damage caused to a Unit by such work
shall be repaired promptly at the expense of the Association.
f. The Association shall retain the right to assess and
allocate the costs of any repairs among all, some or one Owner.
Section 5. Limited Common Elements. Each Unit Owner shall be
responsible for the maintenance, replacement and repair of the Patio and
Balcony Limited Common Elements appurtenant to his Unit.
Section 6. Rules and Regulations. The Association may make
reasonable rules and regulations governing the use of the Units, the
Limited Common Elements and the Common Elements, which rules and
regulations shall not be inconsistent with the rights and duties
established in this Declaration.
Section 7. Implied Rights. The Association may exercise any
other right or privilege given to it expressly by this Declaration or by
law, and every other right or privilege reasonably to be implied from the
existence of any right or privilege given to it or reasonably necessary to
effectuate any such right or privilege.
insert pp 36 and 37 of offer
ARTICLE VII
PHASING OF CONDOMINIUM AND
RESERVED RIGHTS OF DECLARANT
Section 1. Construction Phasing. Declarant reserves the right
to construct in phases the 133 hotel condominiums contemplated herein.
Declarant intends to initially construct sixty-one (61) Units in Phase I
on Parcel A commencing in the fall of 1997. The 61 Phase I Units are
scheduled for completion on or about June 1998. Declarant intends to
construct 72 Units in Phase II on Parcel B commencing in the fall of 1998.
The seventy-two (72) Phase II Units are scheduled for completion on or
about June 1999.
Declarant reserves the right to change the phasing, timing of
the construction, Unit size, design and mix, building location, or whether
or not to even commence construction of the 72 Phase II Units, if required
to meet market demands and to achieve the best development in the sole
opinion of the Declarant. Any additional improvements shall be completed
with and shall be similar to the quality of construction and materials as
those in Phase I.
Section 2. Effect of Phasing on Unit Owners' Interests. Each
Unit Owner's interest in the Common Elements and an Owner's liability for
Common Expenses (as set forth in Article III, Section 1) shall be modified
upon any phasing or construction of additional Units in the hotel
Condominium. Upon any phasing or construction of additional Units,
Limited Common Elements or Common Elements, each Unit Owner's ownership
interest in the Common Elements and liability thereon, shall be recomputed
based upon the then square feet in the Constructed Units, Limited Common
Elements and Common Elements pursuant to Article III, Section 1.
Following any such phasing or Construction of additional Units, the
interest of any mortgagee shall attach, by operation of law, to the new
percentage interest in the Common Elements appurtenant to the Unit on
which it has a lien. Unit Owners will continue to have one vote for each
Unit owned, as set forth in Article V.
Section 3. Effective Date of Phases. The Condominium shall be
deemed phased when a Unit(s) and its (their) Limited Common Element(s) and
Common Elements are Constructed.
Section 4. Easement for Phasing. Declarant and Developer shall
have an easement over, through and under the Property and its improvements
to facilitate the construction of additional improvements and to
facilitate the phasing; provided, however, any damage to the Property or
its improvements because of Declarant's or Developer's use of the easement
shall be Declarant's responsibility.
Section 5. Declarant's Exercise of Association Rights and
Responsibilities. Except as provided in Section 703.15(2)(d), Wisconsin
Statutes, as amended, Declarant reserves the right to appoint and remove
officers and directors of the Association and to exercise the powers and
responsibilities of the Association, its members and its directors until
the earlier of either of the following occur: (i) expiration of ten (10)
years from the date this Declaration is recorded; or (ii) thirty (30) days
after conveyance of seventy-five percent (75%) of the interest in the
Common Elements to purchasers. In computing when 75% of the interest in
the Common Elements has been conveyed, it will be assumed that all
possible phases will be Constructed. During this period of Declarant
control, Declarant shall have the full and exclusive right to take all
action on behalf of the Association, including but not limited to, the
right to (a) mortgage, sell, permit the use of and otherwise convey and
manage Units owned by the Association, (b) make contracts and agreements
on behalf of the Association for the maintenance, operation, and
management of the Condominium Property, including the personal property
held for common use, (c) determine, levy, and collect assessments, (d)
grant easements, and (e) enact and enforce rules and regulations for the
use of the Condominium. Any contracts or agreements entered into by
Declarant on behalf of the Association with Declarant or an affiliate of
Declarant shall be subject to Wis. Stats. 703.35.
Section 6. Rights of Declarant to Develop and Sell Units. In
addition, until the earlier of (i) ten (10) years from the date the
Declaration is recorded with the Register of Deeds for Sauk County,
Wisconsin, or (ii) the Declarant has Constructed all Units and sold all
Units which it has owned, Declarant and Developer reserve the following
rights: (a) to continue any unfinished development work on any unsold
Unit, (b) to complete any unfinished development work on the Limited
Common Elements and Common Elements (including obtaining any necessary
easements therefor); (c)to conduct promotional and sales activities using
unsold Units and the Limited Common Elements and Common Elements, which
activities shall include but need not be limited to maintaining sales and
management offices, model Units, parking areas, and advertising signs; and
(d) to do all other acts Declarant or Developer shall deem reasonably
necessary in connection with the development and sale of the remaining
Units. However, any such acts shall not violate the rights of the Unit
Owners or the Mortgagees or unreasonably interfere with the use and
enjoyment of the units, Limited Common Elements and Common Elements.
Furthermore, Declarant shall be responsible for any damages resulting from
the exercise of such rights.
Page 36 of offering
ARTICLE VIII
COVENANT FOR ASSESSMENTS
Section 1. Agreement to Pay Assessment. Each Owner of any Unit
by the acceptance of a deed therefor, whether or not it be so expressed in
the deed, shall be deemed to covenant and agree with each other and with
the Association to pay to the Association for the purposes provided in
this Declaration, annual assessments, special assessments for capital
improvements, and assessments for any other matters as provided in this
Declaration. Such assessments shall be fixed, established and collected
from time to time in the manner provided in this Article.
Section 2. Purpose of Assessments. The assessments levied by
the Association shall be used to fund the Common Expenses which shall be
used exclusively to promote the use of the Units as a hotel condominium
for the improvement and maintenance of the Common Elements and Units as
set forth herein, to meet any obligations of the Association, and for any
emergency repairs as the Association may deem necessary, including but not
limited to the following expenses:
a. Expenses of management and administration of the
Condominium, insurance, maintenance, operation, repair alteration and
replacement of the Common Elements, and of the portions of the
Limited Common Elements and Units to be maintained by the
Association, and costs of carrying out the powers and duties of the
Association, including professional fees and expenses.
b. Expenses declared Common Expenses by the Board, or
provisions of this Declaration or the By-Laws, including but not
limited to liabilities of the Association arising from the RPA
Agreement, Access and Use Agreement, Association Management
Agreement, or other agreements or contracts of the Association.
c. Sewer and water charges, electricity, garbage
disposal, community or cable television, telephone and other
utilities.
d. Cost of repairing the Condominium Property in excess of
insurance coverage to the extent required herein.
e. Any valid charge against the Condominium Property as a
whole, or against a specific Unit or Units.
Each Owner shall be responsible for a share of the Common
Expenses based upon the percentage or fractional ownership of Common
Elements appurtenant to the Owner's Unit, except as otherwise provided
herein.
Section 3. Annual Assessment. The Board of Directors of the
Association shall from time to time, and at least annually prepare a
budget for the Association and fix the annual assessment.
Section 4. Special Assessment for Capital Improvements. In
addition the annual assessments authorized above, the Association may
levy, in any assessment year, a special assessment applicable to that year
only for the purpose of defraying, in whole or in part, the cost of any
construction, reconstruction, repair or replacement of a capital
improvement upon any Common Element, or any Units, including fixtures and
personal property related thereto. If the cost of such construction,
reconstruction, repair or replacement exceeds the money generated by the
special assessment, the Association may levy an additional assessment
there for in any subsequent assessment year.
p. 37 SO
Section 5. Notice of Meetings. Written notice of any meting
called for the purpose of taking any action authorized under Section 4
shall be sent to all members and any Mortgagee who shall request such
notice, as provided in the Association's By-Laws.
Section 6. Rate of Assessment. Each unit shall be assessed a
portion of the total assessment in proportion to each Unit's ownership
interest in the Common Elements, except as may otherwise be allocated
among Owners by the Board.
Section 7. Date of Commencement of Annual Assessments. The
annual assessments provided for herein shall commence as to the Units on
the date on which at least one of the Units provided for herein has been
Constructed, conveyed to a Unit Owner other than Declarant and is ready
for occupancy. Until such time, the Declarant shall pay the amount of the
assessment against all Constructed Units of which it is the Owner. The
first annual assessment shall be determined by the Declarant prior to
conveyance of the first Unit and shall be adjusted according to the number
of months then remaining in that calendar year. The Board of Directors
shall fix the amount of the annual assessment against each Unit at least
thirty (30) days in advance of each annual assessment period. Written
notice of the annual assessment shall be sent to every owner subject
thereto. The due dates shall be established by the Board of Directors.
The Association shall, upon demand, and for a reasonable charge, furnish a
certificate signed by an officer of the Association setting forth whether
the assessments on a specific Unit have been paid.
Section 8. Working Capital. The Board of Directors shall have
the power to levy an assessment in proportion to each Unit's share of the
Common Expenses and aggregating an amount equal to one-fourth of the
annual budget adopted for the initial full fiscal year of the Association,
for working capital for the Association. Such assessment may be collected
by the Association only from the Unit Owner who shall initially purchase a
Unit from the Declarant. If such an assessment is levied against any such
Unit Owner, it shall be levied against all Unit owners who purchase a Unit
from the Declarant, regardless of when such purchase occurs.
Section 9. Lien for Assessments. All sums assessed to any Unit
pursuant to this Article, together with interest thereon as provided
herein, shall be secured by a lien on such Unit in favor of the
Association. Such lien shall be superior to all other liens and
encumbrances on such Unit, except only for:
a. Liens of general and special taxes;
b. A lien for all sums unpaid on the first outstanding
Mortgage, or on any Mortgage on which the Declarant is Mortgagee,
duly recorded in the Sauk County, Wisconsin real estate records prior
to the making of such assessment, including all unpaid obligatory
advances to be made pursuant to such Mortgage and all amounts
advanced pursuant to such Mortgage and secured by the lien thereof in
accordance with the terms of such instrument;
c. Construction liens filed prior to the making of such
assessment; and
d. All sums unpaid on any mortgage loan made pursuant to
Section 45.80, Wisconsin Statutes.
All other lienors, including judgment creditors and construction
lienors, acquiring liens on any Unit after this Declaration has been
recorded shall be deemed to consent that such liens shall be inferior to
future liens for assessments, as provided herein, whether or not such
consent be specifically set forth in the instruments creating such liens.
To evidence a lien for sums assessed pursuant to this Article,
the Association may prepare a written notice of lien setting forth the
amount of the assessment, the date due, the amount remaining unpaid, the
name of the owner of the unit and a description of the Unit. Such a
notice shall be signed by the Association and may be recorded in the
office of the Clerk of the Circuit Court or Register of Deeds of Sauk
County, Wisconsin. No notice of lien shall be recorded until there is a
delinquency in payment of the assessment., Such lien may be enforced ny
judicial foreclosure by the Association in the same manner in which
mortgages on real property nay be foreclosed in Wisconsin. In any such
foreclosure, the owner shall be required to pay the costs and expenses of
filing the notice of lien and all reasonable attorneys' fees, including
any costs and fees subsequent to a judgment of foreclosure and prior to
the confirmation of sale. All such costs and expenses shall be secured by
the lien being foreclosed. The owner shall also be required to pay to the
Association any assessments against the Unit which shall become due during
the period of foreclosure. The Association shall have the right and power
to bid at the foreclosure sale or other legal sale and to acquire, hold,
convey, lease, rent, encumber, use and otherwise deal with the Unit as the
owner thereof.
A release of notice of lien shall be executed by the Association
in such form as to be recordable in the Sauk County, Wisconsin real estate
records, upon payment of all sums secured by a lien which has been made
the subject of a recorded notice of lien.
Any encumbrancer holding a lien on a Unit may pay, but shall not
be required to pay, any amounts secured by the lien created by this
Section, and upon such payment such encumbrancer shall be subrogated to
all rights of the Association with respect to such lien, including
priority.
The Association shall, upon written request of any encumbrancer
of a Unit, report to that encumbrancer (1) any unpaid assessments against
the encumbered Unit remaining unpaid for longer than sixty (60) days after
the same shall have become due; and (2) any other defaults by the Owner of
the encumbered Unit under any of the Condominium documents which remain
uncured for longer than sixty (60) days; provided, however, that such
encumbrancer first shall have furnished to the Association written notice
on the first day of each month of its encumbrance on the Unit at issue.
Section 10. Effect of Nonpayment of Assessment: Remedies of
the Association. Any assessment not paid within fifteen (15) days after
the due date shall bear a late charge of $30.00 (or such greater amount
as shall be established by the Association) and shall bear interest from
the due date at twelve percent (12%) per annum, provided, however, that if
said interest rate shall violate any applicable usury or credit law, rule
or regulation, then such interest rate shall automatically be adjusted so
as to be no more than the highest rate permitted by such usury or credit
law, rule or regulation. The Association may bring an action at law
against the Owner personally obligated to pay the same, or foreclose the
lien against the property. No owner may waive or otherwise escape
liability for the assessments provided for herein by nonuse of the Common
Elements or abandonment of his Unit or the Common Elements. A suit to
recover a money judgment for unpaid expenses hereunder shall be
maintainable without foreclosing or waiving the lien securing the same.
If any assessment of Common Expenses is delinquent, the Association may
suspend the voting rights of the delinquent Unit Owner.
Section 11. Preservation of the Lien. Sale or transfer of any
Unit shall not affect the assessment lien. The sale or transfer of any
Unit pursuant to the foreclosure of a Mortgage or other lien prior in
right to the Association's lien shall extinguish the lien of such
assessments as to payments which became due prior to such sale or transfer
and such unpaid assessments shall be deemed to be Common Expenses
collectible from all of the Owners excluding the acquirer, his successors
and/or assign,. No sale or transfer shall relieve such Unit from
liability for any assessments thereafter becoming due or from the lien
thereof, and the foreclosed Unit Owner or owners shall remain personally
liable to the Association for unpaid assessments on a joint and several
basis.
ARTICLE IX
ARCHITECTURAL CONTROL
Section 1. Architectural Control Committee Authority. No
exterior additions or alterations to the Units or Limited Common Elements
shall be commenced, erected or maintained, and no addition or alteration
of any Unit that will affect any Common Element in any way, except such as
are installed or approved by the Declarant in connection with the initial
construction or modification of the Units, until the plans and
specifications showing the nature, kind, shape, height, materials,
location and approximate cost of same shall have been submitted to and
approved in writing as to harmony with the Resort of external design and
location in relation to the building by an Architectural Control Committee
composed of the entire Board of Directors or by a representative or
representatives designated by the Board as the Architectural Control
Committee and approved by the Resort. Such representatives may, but need
not, be members of the Board of Directors. In the event said committee,
or is designated representatives and/or the Resort, fails to approve or
disapprove such design and location within thirty (30) days after said
plans and specifications have been submitted to it, such approval shall be
deemed to have been refused. If no application has been made to the
Architectural Control Committee or is representatives or approval has not
been obtained from the Architectural Control Committee and the Resort,
suit to enjoin or remove such additions, alterations or changes may be
instituted at any time. Neither the members of the Architectural Control
Committee nor its designated representatives shall be entitled to
compensation for services performed pursuant to this paragraph, but
compensation may be allowed to independent professional advisors retained
by the Architectural Control Committee.
ARTICLE X
EASEMENTS
Section 1. Easements for Access. In addition to the access as
provided in Article IV, Section 1, and otherwise provided in the
Declaration, Unit Owners and their agents may have access to Units which
they do not own if necessary in order to maintain and repair the sewer
facilities or utilities in their own Units. Similarly, the Association
may have access to Units to perform any maintenance or make any repairs,
alterations or replacements which it has the right or responsibility to
perform or make under this Declaration. Such access shall be provided to
the Association or a Unit Owner only after giving the Owner of the Unit to
which access must be obtained reasonable notice of the need for such
access and arranging for a mutually agreeable time for such access, except
in the event of an emergency.
Section 2. Encroachments and Easements. In the event that by
reason of the construction, reconstruction, settlement, or shifting of any
building, or the design or construction of any Unit, any part of the
Common Elements encroaches or shall here after encroach upon any part of
any Unit, or any part of any Unit Elements, or any portion of any Unit
encroaches upon any part of any other Unit, valid easements for the
maintenance of such encroachment are hereby established and shall exist
for the benefit of such Unit or Common Elements so encroaching so long as
all or any part of the building containing such Unit or Common Elements so
encroaching shall remain standing; provided, however, that in no event
shall a valid easement for any encroachment be created in favor of the
owner of any Unit or in favor of the owners of the Common Elements if such
encroachment occurred due to the willful conduct of said owner or owners.
ARTICLE XI
INSURANCE
Section 1. Multi-Peril Property Insurance. The Association
shall maintain multi-peril property insurance at full insurable value
based on replacement cost on the Units, Common Elements, Limited Common
Elements and the standard personal property in the Units. This is to
include fire and extended coverage and all other types of coverage
commonly maintained on such projects. Individual Owners may request the
Association to obtain on their behalves additional insurance coverage.
The Association shall hold this insurance in its name for the use and
benefit of the Unit Owner and of the Mortgagees of Units, or their
successors and assign, as their interest may appear and shall assess the
cost attributable to each Unit to the individual Unit Owners.
Section 2. Public Liability Insurance. The Association shall
maintain comprehensive public liability insurance for personal injury or
property damage on the Units, Commons Elements and Limited Common
Elements, protecting the Association and each Unit Owner. Such insurance
shall contain a "severability of interest" clause permitting recovery by
Unit Owners for injury or damage insured against. The Association shall
assess the costs attributable to each Unit to the Individual Unit Owners.
Section 3. Fidelity Coverage. The Association may maintain
fidelity coverage against dishonest acts by any person, paid or volunteer,
responsible for handling the funds belonging to or administered by the
Association. Such coverage shall name the Association as the insured.
Section 4. Common Expense. All insurance is maintained as a
common expense and shall be assessed to individual owners as shall be
determined by the Board of Directors. The Association acts as trustee for
the purpose of obtaining insurance coverage and the receipt, application
and disbursement of proceeds from it.
Section 5. Other Insurance. Maintenance of insurance by the
Association does not relieve nor prohibit Unit Owners from maintaining
additional insurance with limits in excess of those maintained by the
Association or on risks not insured by it.
Section 6. Destruction and Reconstruction. In the event of a
partial or total destruction of one or more Units, they shall be rebuilt
and repaired as soon as practicable and substantially to the same design,
plan and specifications as originally built, unless within thirty (30)
days after such partial or total destruction, all of the Owners of Units
subject to this Declaration agree not to repair or rebuild. On
reconstruction, the design, plans and specifications of any building or
Unit may vary from that of the original upon approval of the Association;
provided, however, that the number of square feet of any Unit may not vary
more than ten percent (10%) from the number of square feet for such Unit
as originally constructed, and the location of the Unit shall be
substantially the same as prior to the damage or destruction.
a. When damage Units are to be reconstructed or repaired,
proceeds on account thereof shall be held in undivided shares for the
Owners of damaged Units in proportion to the cost of reconstructing
or repairing the damage suffered by each such Unit owner, which cost
shall be fairly determined by the Association.
b. When damaged Units are not to be reconstructed or
repaired, proceeds on account thereof shall be held in undivided
shares for each Owner of such Units, such share being in proportion
to the respective fair market value of all such damaged Units
immediately prior to such damage, as the same shall be determined by
arbitration pursuant to the provisions of Section 8.
Section 7. Partition. The Association shall have the right to
levy assessments against the Units to be repaired or reconstructed in the
event that the proceeds of any insurance collected are insufficient to pay
the estimated or actual costs of repair or reconstruction; provided,
however, that in the event of damage to an extent more than the available
insurance, this Condominium shall be subject to an action for partition
upon obtaining the written consent of the Unit Owners having no less than
Seventy-Five percent (75%) of the votes. In the event of partition, the
net proceeds of sale, together with any net proceeds of insurance shall be
considered as one fund. The proceeds of insurance shall be considered as
one fund. The proceeds of insurance shall be divided among the Unit
Owners whose units are not being reconstructed in accord with the
proportion of the fair market value of such units immediately prior to
such destruction. All other proceeds of sale shall be divided among all
Unit Owners in proportion to their interest in Common Elements as set
forth in Exhibit A. Such distributions shall be to the Unit Owners or to
any party designated by such Unit Owner, and shall be distributed in
accordance with the priority interest in each Unit.
Section 8. Procedure. Except to the extent that other sections
of this Declaration authorize the Declarant, the Association or other
parties to seek foreclosure, injunction or other judicial relief, the
process of arbitration as herein set forth shall be used to determine fair
market value as mentioned above, as well as to resolve any controversy
between Owners and the Declarant or between the respective Owners, if the
controversy or dispute arises as to the construction of any provisions of
this Declaration, compliance with any provisions of this Declaration,
application of any provisions of this Declaration, application of any
provisions of this Declaration concerning approvals, or violation of any
of the use restrictions of the Condominium Property. Arbitration, where
so provided for in this Declaration, shall proceed in the following
manner:
a. Who may commence arbitration. Either party to a
controversy may institute arbitration proceedings upon written notice
delivered to the other parties in person or by certified mail.
Arbitration shall be compulsory and, except to the extent specified
above, shall supersede any litigation with respect to a controversy
subject to arbitration hereunder.
b. Notice. The notice referred to above shall reasonably
identify the subject of controversy and the subject of arbitration.
c. Appointment of Arbitrator. A single arbitrator shall
be appointed by the American Arbitration Association who, whenever
the subject of the controversy involves the fair market value of a
Unit, must be a member of the American Institute of Real Estate
Appraisers (M.A.I.).
d. Place of Hearing. The arbitrator shall select the
time and place for hearing of the controversy.
e. Rules for Arbitration. The arbitration shall be
conducted by the arbitrator, in accordance with the rules of the
American Arbitration Association.
f. Costs. The fee of the arbitrator and the costs and
expenses incurred in said arbitration shall be divided and paid in
equal shares by the parties to the arbitration, except in the case of
arbitration to determine purchase price of a Unit pursuant hereto in
which case such fee, costs and expenses shall be paid by the
purchaser.
ARTICLE XII
DECLARANT'S RIGHT OF FIRST REFUSAL
Section 1. Agreement to Right of First Refusal. Each Owner or
subsequent Owner (collectively the "Unit Owner") of a Unit, by acceptance
of a deed therefor from any grantor, whether or not it be so expressed in
the deed, shall be deemed to agree that the Declarant has a right of first
refusal to purchase such Unit on the terms and conditions set forth in
this Article, unless the right has expired as set forth therein.
Section 2. Notice to Declarant. Before a Unit Owner accepts an
offer to purchase or offers to sell his Unit at a price (the "sale price")
lower than the price at which the Unit Owner purchased the Unit, the Owner
shall notify the Declarant of such intention to sell Owner's Unit and
provide Declarant with a copy of any such offer. Declarant shall have no
right of first refusal if the sale price is equal to or above the Owner's
original purchase price.
Section 3. Exercise by Declarant. Declarant shall have ten
(10) business days from receipt of such notice and such copy of the offer
from a Unit Owner in which to exercise its right to purchase the Unit on
the terms and conditions set forth in the offer (except as set forth
below) by written notice of exercise to the Unit Owner. Time is of the
essence with respect to exercise of this right of first refusal.
Section 4. Closing. If the right of first refusal is
exercised, the Unit Owner shall within thirty (30) days after receipt of
notice of exercise, submit to Declarant for examination evidence of
merchantable title to the Unit, in the form of a title insurance
commitment. The sale shall be consummated and conveyance made by Warranty
Deed free and clear of all liens and encumbrances within forty-five (45)
days after receipt of the notice of exercise of right of first refusal.
Section 5. Failure to Exercise Right. Should Declarant fail to
timely exercise this right of first refusal within the time herein
limited, the Unit Owner may accept the offer from or make the offer to
sell to any third party, provided, however, that the Unit Owner must again
give such notices to Declarant if: a purchase contract is not entered on
the terms and conditions set forth in the offer provided to Declarant
within sixty (60) days of the Unit Owner's providing of such offer to
Declarant; or such a purchase contract is entered but fails to close
within ninety (90) days of the Unit Owner's providing of such offer to
Declarant.
Section 6. Termination of Right of First Refusal. Declarant's
right of first refusal shall terminate when it no longer has the right to
exercise Association rights and responsibilities under Article VII,
Section 1.
ARTICLE XIII
GENERAL PROVISIONS
Section 1. Enforcement. Subject to the arbitration requirement
of this Declaration, the Association, or any Owner, shall have the right
to enforce, by any proceeding at law or in equity, all restrictions,
conditions, and reservations, now or hereafter imposed by the provisions
of this Declaration. Failure to enforce any covenant or restriction
herein contained shall in no event be deemed a waiver of the right to do
so thereafter.
Section 2. Severability. Invalidation of any one of these
covenants or restrictions by judgment or court order shall in no way
affect any other provisions which shall remain in full force and effect.
Section 3. Termination. This Declaration may only be
terminated by the consent of the Owners of all Units and all of the
parties holding mortgages, liens or other encumbrances against any of said
Units, in which event the termination of the Declaration shall be by such
plan as may be then adopted by said Owners and parties holding any
mortgages, liens or other encumbrances. Such election to terminate this
Declaration shall be executed in writing by all of the aforementioned
parties, and such instrument or instruments shall be recorded with the
Register of Deeds in Sauk County, Wisconsin.
Section 4. Amendment. Except as hereinafter limited and
provided, this Declaration may be amended by an instrument signed by the
Declarant alone at any time in which it retains control over the
Association and thereafter signed by Unit Owners having not less than two-
thirds (2/3rds) of the votes; provided, however, that such amendment shall
not substantially alter any of the rights or obligations of the Owners
without first obtaining the affected Owners' express written approval.
No amendment to this Declaration shall be adopted which would
operate to affect the validity or priority of any Mortgage or which would
alter, amend or modify, in any manner whatsoever, the rights, powers and
privileges granted and reserved herein in favor of any Mortgage without
the consent of all such Mortgagees, as the case may be.
Section 5. Registered Agent for Service of Process. The
registered agent for service of process shall be Thomas J. Lucke, whose
address is 511 East Adams Street, Wisconsin Dells, Wisconsin 53965.
Change of agent for service of process may be accomplished by resolution
of the Board of Directors of the Association and upon proper filing of
said name with the Register of Deeds for Sauk County, Wisconsin and with
the Secretary of State of the State of Wisconsin.
IN WITNESS WHEREOF, the Declarant has caused this instrument to
be duly executed under seal, this ___ day of _______________, 1997.
DECLARANT: WILDERNESS HOTEL & RESORT,
INC.
___________________________
Thomas J. Lucke
By:___________________________
___________________________ Thomas J. Lucke, President
Terri L. Lucke
Attest:_______________________
S. Peter Helland, Jr.,
Secretary
STATE OF WISCONSIN )
) ss.
COUNTY OF SAUK )
Personally came before me this ___ day of __________, 197, the
above-named ________________________________________ and
_____________________________, to me known to be the persons who executed
the foregoing instrument and acknowledge that they executed the foregoing
instrument as president and secretary of Wilderness Hotel & Resort, Inc.,
by its authority.
_____________________________________
*____________________________________
Notary, State of ____________________
My Commission:_______________________
The undersigned, as title owners and land lessors of the
Property, hereby consent to and authorize the Declarant to submit and
subject the Property to this Declaration of Condominium this ___ day of
____________________, 1997.
_____________________________________
Thomas J. Lucke
_____________________________________
Terri L. Lucke
STATE OF WISCONSIN )
) ss.
COUNTY OF SAUK )
Personally came before me this ___ day of __________, 1997, the
above-named Thomas J. Lucke and Terri L. Lucke, to me known to be the
persons who executed the foregoing instrument and acknowledge that they
executed the foregoing instrument.
_____________________________________
*____________________________________
Notary, State of ____________________
My Commission:_______________________
This instrument was drafted by:
Timothy C. Sweeney, Esq.
Sweeney & Sweeney, S.C.
440 Science Drive, 4th Floor
Madison, WI 53711
<PAGE>
EXHIBIT 1.1.A
Parcels A and B - The Condominium Property
[Insert legal and map of condo land--describe only land underneath condo
and patios]
<PAGE>
Exhibit A
Condominium Plat and Unit Floor Plans
<PAGE>
Exhibit B
Percentage Ownership of Common Elements
and Assessment for Common Expenses
[Show initial and fully expanded interests]
<PAGE>
Exhibit C
RPA Agreement
<PAGE>
DECLARATION OF CONDOMINIUM OWNERSHIP
AND OF EASEMENTS, RESTRICTIONS, COVENANTS AND
CONDITIONS FOR WILDERNESS HOTEL CONDOMINIUM,
a hotel condominium
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND LEGAL DESCRIPTION OF LAND . . . . . . . . . . . . . . -2-
Section 1. Legal Description of Land . . . . . . . . . . . . . -2-
Section 2. Association . . . . . . . . . . . . . . . . . . . . -2-
Section 3. Owner . . . . . . . . . . . . . . . . . . . . . . . -2-
Section 4. Unit . . . . . . . . . . . . . . . . . . . . . . . . -2-
4.1 Definition . . . . . . . . . . . . . . . . . . . . . . -2-
4.2 Unit Boundaries . . . . . . . . . . . . . . . . . . . -2-
4.3 Types of Unit . . . . . . . . . . . . . . . . . . . . -4-
Section 5. Unit Number . . . . . . . . . . . . . . . . . . . . -4-
Section 6. Common Elements . . . . . . . . . . . . . . . . . . -4-
Section 7. Limited Common Elements . . . . . . . . . . . . . . -5-
Section 8. Declarant and Developer . . . . . . . . . . . . . . -5-
Section 9. Mortgage . . . . . . . . . . . . . . . . . . . . . . -5-
Section 10. Mortgagee . . . . . . . . . . . . . . . . . . . . . -5-
Section 11. Person . . . . . . . . . . . . . . . . . . . . . . -5-
Section 12. Occupant . . . . . . . . . . . . . . . . . . . . . -5-
Section 13. Guest . . . . . . . . . . . . . . . . . . . . . . . -5-
Section 14. Common Expenses . . . . . . . . . . . . . . . . . . -5-
Section 15. RPA Agreement . . . . . . . . . . . . . . . . . . . -5-
Section 16. Construction . . . . . . . . . . . . . . . . . . . -6-
Section 17. Resort . . . . . . . . . . . . . . . . . . . . . . -6-
ARTICLE II
PROPERTY AND UNITS: SUBMISSION TO ACT . . . . . . . . . . . . . . . -6-
Section 1. Submission of Property to the Act . . . . . . . . . -6-
Section 2. Identification . . . . . . . . . . . . . . . . . . . -6-
ARTICLE III
COMMON ELEMENTS AND LIMITED COMMON ELEMENTS . . . . . . . . . . . . . -6-
Section 1. Ownership of Common Elements . . . . . . . . . . . . -6-
Section 2. No Partition of Common Elements . . . . . . . . . . -7-
Section 3. Restrictions on Use of Common Elements . . . . . . . -7-
Section 4. Use of Patio and Balcony Limited Common
Elements . . . . . . . . . . . . . . . . . . . . -7-
ARTICLE IV
OTHER PROPERTY RIGHTS AND OBLIGATIONS OF OWNERS . . . . . . . . . . . -7-
Section 1. Owner's Right to Ingress and Egress and
Support . . . . . . . . . . . . . . . . . . . . . -7-
Section 2. Use of Units . . . . . . . . . . . . . . . . . . . . -8-
Section 3. Rental of Units . . . . . . . . . . . . . . . . . . -8-
Section 4. Use of Common Elements . . . . . . . . . . . . . . . -8-
Section 5. Prohibitions of Damage and Certain
Activities . . . . . . . . . . . . . . . . . . . -8-
Section 6. Animals . . . . . . . . . . . . . . . . . . . . . . -9-
Section 7. Rules and Regulations . . . . . . . . . . . . . . . -9-
Section 8. Delegation of Use . . . . . . . . . . . . . . . . . -9-
Section 9. Separate Mortgages of Units . . . . . . . . . . . . -9-
Section 10. Separate Real Estate Taxes . . . . . . . . . . . . -9-
Section 11. Maintenance, Repairs and Replacement . . . . . . . -10-
Section 12. Common Surpluses . . . . . . . . . . . . . . . . . -11-
Section 13. Certain Additional Restrictions . . . . . . . . . . -11-
Section 14. Signs . . . . . . . . . . . . . . . . . . . . . . . -12-
ARTICLE V
ASSOCIATION MEMBERSHIP AND VOTING RIGHTS . . . . . . . . . . . . . . -12-
Section 1. Membership . . . . . . . . . . . . . . . . . . . . . -12-
Section 2. Voting . . . . . . . . . . . . . . . . . . . . . . . -12-
ARTICLE VI
RIGHTS AND OBLIGATIONS OF THE ASSOCIATION . . . . . . . . . . . . . . -12-
Section 1. The Common Elements . . . . . . . . . . . . . . . . -12-
Section 2. Services . . . . . . . . . . . . . . . . . . . . . . -12-
Section 3. Personal Property for Common Use . . . . . . . . . . -13-
Section 4. Repairs . . . . . . . . . . . . . . . . . . . . . . -13-
Section 5. Limited Common Elements . . . . . . . . . . . . . . -14-
Section 6. Rules and Regulations . . . . . . . . . . . . . . . -14-
Section 7. Implied Rights . . . . . . . . . . . . . . . . . . . -14-
ARTICLE VII
PHASING OF CONDOMINIUM AND RESERVED RIGHTS OF DECLARANT . . . . . . . -14-
Section 1. Construction Phasing . . . . . . . . . . . . . . . . -14-
Section 2. Effect of Phasing on Unit Owners'
Interests . . . . . . . . . . . . . . . . . . . . -14-
Section 3. Effective Date of Phases . . . . . . . . . . . . . . -15-
Section 4. Easement for Phasing . . . . . . . . . . . . . . . . -15-
Section 5. Declarant's Exercise of Association Rights
and Responsibilities . . . . . . . . . . . . . . -15-
Section 6. Rights of Declarant to Develop and Sell
Units . . . . . . . . . . . . . . . . . . . . . . -15-
ARTICLE VIII
COVENANT FOR ASSESSMENTS . . . . . . . . . . . . . . . . . . . . . . -16-
Section 1. Agreement to Pay Assessment . . . . . . . . . . . . -16-
Section 2. Purpose of Assessments . . . . . . . . . . . . . . . -16-
Section 3. Annual Assessment . . . . . . . . . . . . . . . . . -17-
Section 4. Special Assessment for Capital
Improvements . . . . . . . . . . . . . . . . . . -17-
Section 5. Notice of Meetings . . . . . . . . . . . . . . . . . -17-
Section 6. Rate of Assessment . . . . . . . . . . . . . . . . . -17-
Section 7. Date of Commencement of Annual Assessments . . . . . -17-
Section 8. Working Capital . . . . . . . . . . . . . . . . . . -18-
Section 9. Lien for Assessments . . . . . . . . . . . . . . . . -18-
Section 10. Effect of Nonpayment of Assessment:
Remedies of the Association . . . . . . . . . . . -19-
Section 11. Preservation of the Lien . . . . . . . . . . . . . -20-
ARTICLE IX
ARCHITECTURAL CONTROL . . . . . . . . . . . . . . . . . . . . . . . . -20-
Section 1. Architectural Control Committee Authority . . . . . -20-
ARTICLE X
EASEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -21-
Section 1. Easements for Access . . . . . . . . . . . . . . . . -21-
Section 2. Encroachments and Easements . . . . . . . . . . . . -21-
ARTICLE XI
INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -21-
Section 1. Multi-Peril Property Insurance . . . . . . . . . . . -21-
Section 2. Public Liability Insurance . . . . . . . . . . . . . -21-
Section 3. Fidelity Coverage . . . . . . . . . . . . . . . . . -22-
Section 4. Common Expense . . . . . . . . . . . . . . . . . . . -22-
Section 5. Other Insurance . . . . . . . . . . . . . . . . . . -22-
Section 6. Destruction and Reconstruction . . . . . . . . . . . -22-
Section 7. Partition . . . . . . . . . . . . . . . . . . . . . -22-
Section 8. Procedure . . . . . . . . . . . . . . . . . . . . . -23-
ARTICLE XII
DECLARANT'S RIGHT OF FIRST REFUSAL . . . . . . . . . . . . . . . . . -24-
Section 1. Agreement to Right of First Refusal . . . . . . . . -24-
Section 2. Notice to Declarant . . . . . . . . . . . . . . . . -24-
Section 3. Exercise by Declarant . . . . . . . . . . . . . . . -24-
Section 4. Closing . . . . . . . . . . . . . . . . . . . . . . -24-
Section 5. Failure to Exercise Right . . . . . . . . . . . . . -24-
Section 6. Termination of Right of First Refusal . . . . . . . -25-
ARTICLE XIII
GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . -25-
Section 1. Enforcement . . . . . . . . . . . . . . . . . . . . -25-
Section 2. Severability . . . . . . . . . . . . . . . . . . . . -25-
Section 3. Termination . . . . . . . . . . . . . . . . . . . . -25-
Section 4. Amendment . . . . . . . . . . . . . . . . . . . . . -25-
Section 5. Registered Agent for Service of Process . . . . . . -26-
ATTACHMENTS: EXHIBITS
EXHIBIT 1.1.A--Parcels A and B - The Condominium Property
Exhibit A--Condominium Plat and Unit Floor Plans
Exhibit B--Percentage Ownership of Common Elements and
Assessment for Common Expenses
Exhibit C--RPA Agreement
NONSTOCK
ARTICLES OF INCORPORATION
OF
WILDERNESS HOTEL CONDOMINIUM ASSOCIATION, INC.
The undersigned, for the purpose of forming a Wisconsin
corporation under Chapter 181 of the Wisconsin Statutes, WITHOUT STOCK AND
NOT FOR PROFIT, adopts the following Articles of Incorporation for such
corporation.
Article 1
The name of the Corporation is WILDERNESS HOTEL CONDOMINIUMS
ASSOCIATION, INC.
Article 2
The period of existence shall be perpetual.
Article 3
The purposes shall be to engage in any lawful activities
authorized by Chapter 181 of the Wisconsin Statutes.
Article 4
The principal office is located in Wisconsin Dells, Sauk County,
Wisconsin, and the address of such principal office is 511 East Adams
Street, Wisconsin Dells, Wisconsin 53965.
Article 5
The name of the corporation's initial registered agent is
Timothy C. Sweeney.
Article 6
The address of the initial registered agent is 440 Science
Drive, 4th Floor, Madison, Wisconsin 53711. These Articles shall be
recorded in Sauk County, Wisconsin.
Article 7
These Articles may be amended by affirmative vote of Members, as
defined in Article 10, having at least three-quarters (3/4) of the votes
of all Members present in person or by proxy and voting at a regular or
special meeting of the Members.
Article 8
The number of directors shall be fixed by or pursuant to the By-
laws but shall not be less than three.
Article 9
The names and addresses of the members of the initial Board of
Directors are:
Thomas J. Lucke 511 East Adams Street
Wisconsin Dells, WI 53965
S. Peter Helland, Jr. 511 East Adams Street
Wisconsin Dells, WI 53965
Terri L. Lucke 511 East Adams Street
Wisconsin Dells, WI 53965
Article 10
Every record owner, whether one or more persons or entities, of
a fee simple title to any unit, including land contract buyers, but
excluding those having such interest merely as security for the
performance of an obligation or as land contract sellers, shall be
entitled and required to be a member of the corporation. If title to a
unit is held by more than one person, each of such persons shall be
members; the vote for such unit on each matter before the membership shall
be exercised as they among themselves determine, but in no event may more
than one vote be cast with respect to any unit, which vote shall have the
weight set forth in the Declaration of the Wilderness Hotel Condominium,
as amended. A record owner of more than one unit shall be entitled to one
membership for each unit that he, she or it owns. Each such membership
shall be appurtenant to the unit upon which it is based and shall be
transferred automatically by conveyance of that unit. No person or entity
other than such record owner or Wilderness Hotel & Resort, Inc., or
Wilderness Development Corporation, Wisconsin corporations, may be a
member of the corporation, and membership in the corporation may not be
transferred except in connection with the transfer of title to a unit
provided, however, that the rights of voting may be assigned to a
mortgagee as further security for a loan secured by a mortgage on a unit.
Article 11
The name and address of the incorporator is Timothy C. Sweeney,
Sweeney & Sweeney, S.C., 440 Science Drive, 4th Floor, Madison, Wisconsin
53711.
Executed in duplicate this ___ day of ______________ 1997.
________________________________
Timothy C. Sweeney
STATE OF WISCONSIN )
) ss.
COUNTY OF __________ )
Personally came before me this ___ day of _______, 1997 the
aforementioned Timothy C. Sweeney, to me known to be the person who
executed the foregoing instrument.
[SEAL] _________________________________
Notary Public
State of Wisconsin
My commission:___________________
This instrument was drafted by Attorney Timothy C. Sweeney, Sweeney &
Sweeney, S.C., 440 Science Drive, 4th Floor, Madison, WI 53711 (608) 238-
4444.
BYLAWS
OF
WILDERNESS HOTEL CONDOMINIUM ASSOCIATION, INC.
Dated: _________________
<PAGE>
ARTICLE I
NAME AND LOCATION
The name of the Association is Wilderness Hotel Condominium
Association, Inc., hereinafter referred to as the "Association." The
principal office of the Association and the mailing address of the
Association shall be at 511 East Adams Street, Wisconsin Dells, Wisconsin
53965, but meetings of members and directors may be held at other places
within the State of Wisconsin as the Directors may from time to time
designate.
ARTICLE II
DIRECTORS
Section 1. "Association" shall mean and refer to the Wilderness
Hotel Condominium Association, Inc., a corporation organized pursuant to
Chapter 181 of the Wisconsin Statutes, its successors and assigns.
Section 2. "Property" shall mean and refer to that certain real
property described in and subject to the Declaration of Condominium
Ownership of Wilderness Hotel Condominium, a condominium, and any
supplements or amendments thereto.
Section 3. "Unit" shall mean and refer to any constructed
individual hotel condominium Unit to be separately owned and shown upon
the recorded plat or plats of survey of the Property as a separate and
distinct Unit.
Section 4. "Common Elements" or "Common Areas" shall mean and
refer to the Property, except the Units, and "Limited Common Elements" as
more fully set forth in the Declaration.
Section 5. "Owner" shall mean and refer to the record owner,
whether one or more persons or entities, of the fee simple title to any
Unit which is a part of the Property, or a land contract buyer, but
excluding those having such interest merely as security for the
performance of an obligation.
Section 6. "Declarant" shall mean and refer to Wilderness Hotel
& Resort, Inc., a Wisconsin corporation.
Section 7. "Declaration" shall mean and refer to the
Declaration of Condominium Ownership applicable to the Property to be
recorded in the office of the Register of Deeds for Sauk County,
Wisconsin, and any supplements or amendments thereto as provided in the
Declaration.
Section 8. "Member" shall mean and refer to those persons
entitled to membership as provided in the Declaration.
Section 9. "Mortgage" shall mean any Mortgage or other security
instrument, including a land contract, by which a Unit or any part thereof
is encumbered.
Section 10. "Mortgagee" shall mean any Person named as the
Mortgagee under any Mortgage under which the interest of any Owner is
encumbered, or any land contract vendor of any Unit, or any successor to
the interest of such person under such Mortgage of such land contract.
Section 11. "Occupant" shall mean any person whom an Owner
agrees may occupy his or her Unit so as to exclude the Owner from the
right of occupancy during part or all of the period of such tenancy,
whether or not a written occupancy agreement is executed, and whether or
not the Occupant pays the Owner consideration for the right to use the
Unit. There may be more than one Occupant occupying the Unit at one time.
Section 12. "Guest" means a person whom an Owner or an Occupant
permits to occupy a Unit while the Owner or Occupant also has the right to
occupy the Unit, whether or not the Owner or Occupant actually occupies
the Unit during all of the period of the Guest's occupancy.
ARTICLE III
MEETING OF MEMBERS
Section 1. Annual Meeting. The annual of the members shall be
held on the first Saturday in February of each year, or at such other time
and date within thirty days before or after such date as may be fixed by
or under the authority of the Board of Directors. If the day fixed for
the annual meeting of the Members is a legal holiday, the meeting shall be
held on first day following which is not a legal holiday. The purpose of
each annual meeting of the Members shall be for the election of Directors
and the transaction of such other business as may come before the meeting.
Section 2. Special Meetings. Special meetings of the Members
may be called at any time by the Board of Directors or by the President,
or upon written request of Members having at least one-third (1/3) of the
votes of the Association.
Section 3. Place of Meetings. Meetings of the Members shall be
held at the principal office of the Association or at such other suitable
place as may be designated by the Board of Directors.
Section 4. Notice of Meetings. Written notice of each meeting
of the Members shall be given by, or at the direction of, the Secretary or
other person authorized to call the meeting, by delivering written notice,
either personally or by mail, or by facsimile, at least ten (10) but not
more than sixty (60) days before such meeting to each voting Member
entitled to vote thereat, last appearing on the books of the Association
for the purpose of notice. Such notice shall specify the place, day and
hour of the meeting, and, in the case of a special meeting, the purpose of
the meeting.
Section 5. Quorum. The presence at the meeting of Members,
either in person or by proxy, of Members having forty percent (40%) of the
votes of the Association, or such larger percentage as is required by law,
shall constitute a quorum for any action except as otherwise provided in
the Declaration, the Articles of Incorporation or these By-Laws. If a
quorum is present, the affirmative vote of the Majority of Members on each
issue shall be the act of the Members with respect to such issue unless
the vote of a greater number is required by law, the Declaration, the
Articles of Incorporation or these By-Laws. If, however, such quorum
shall not be present or represented at any meeting, the Members entitled
to vote thereat shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum as
aforesaid shall be present or be represented.
Section 6. Proxies. At all meetings of Members, each Member
may vote in person or by proxy. All proxies shall be in writing, signed
by the Member or his duly appointed attorney in fact, and filed with the
Association's secretary. Every proxy shall be effective for a maximum
period of one hundred eighty (180) days (unless granted to a Mortgagee),
shall be revocable by written notice filed with the Secretary or by oral
notice given to the presiding officer during the meeting of the Members,
and shall automatically cease upon conveyance by the Member of his Unit.
Section 7. Majority of Members. As used in these By-Laws, the
term "Majority of Members" shall mean those Members having more than fifty
percent (50%) of the votes of all Members present in person or by proxy
and voting on any matter at any meeting of the Members.
Section 8. Declarant's Control. Except as provided in Article
IV, Section 1, below, Declarant, or a person authorized by it, may appoint
and remove the officers and directors of the Association and exercise all
powers and responsibilities of the Association and its Members, Board of
Directors and officers, provided, however, that such control shall cease
on the earlier of ten (10) years from the date the Declaration is recorded
with the Register of Deeds for Sauk County, Wisconsin, or thirty (30) days
after Declarant has conveyed seventy-five percent (75%) of the interest in
the Common Elements to purchasers. In computing whether such conveyance
has occurred, all assumptions set forth in the Declaration shall be used.
Section 9. Rights of Declarant Prior to Transfer.
Notwithstanding any provisions of the Declaration to the contrary,
Declarant may use the Common Areas and any unsold Units on the Property as
may facilitate the construction, completion and sale of all Units, until
the earlier of (a) ten (10) years from the date the Declaration is
recorded with the Register of Deeds for Sauk County, Wisconsin, or (b) the
Declarant has constructed all expansion Units and has sold all Units which
it has owned, whether in the original or expansion portion of the
Condominium. Such use of the Common Areas may include (but not be limited
to) gaining access to construction sites, engaging in construction,
maintaining a sales office, showing units and maintaining signs.
Section 10. Waiver of Notice by Members. Whenever any notice
whatsoever is required to be given to any Member, a waiver thereof in
writing, signed at any time, whether before or after the time of the
meeting, by the Member entitled to such notice, shall be deemed equivalent
to the giving of such notice.
ARTICLE IV
BOARD OF DIRECTORS SELECTION --
TERM OF OFFICE
Section 1. Number and Selection. The affairs of the
Association shall be managed by a Board of three (3) Directors, or such
other number as the Board may determine, all but one of whom shall be a
Member of the Association, an officer or director of a Member that is a
corporation, a partner of a Member that is a partnership (or limited
liability partnership) or a member of a Member that is a limited liability
company. Prior to the conveyance by the Declarant of twenty-five percent
(25%) of the interest in all the Common Elements by Declarant to
purchasers, the Association shall hold a meeting of the Members other than
Declarant and shall elect at least twenty-five percent (25%) of the
Directors; prior to the conveyance by the Declarant of fifty percent (50%)
of the interest in all the Common Elements to the purchasers, the
Association shall hold a meeting of the Members other than Declarant and
shall elect at least thirty-three and one-third percent (33 1/3%) of the
Directors. No later than forty-five (45) days after the expiration of any
period of Declarant control, the Association shall hold a meeting, and the
Members shall elect all members of the Board, who shall take office upon
election.
Section 2. Election and Term of Office. Each Director shall
hold office until the next annual meeting of Members and until the
Director's successor shall have been elected, or until the Director's
prior death, resignation or removal, except as set forth in Section 1
above. In the event of death or resignation, the Director's successor
shall be selected by the remaining members of the Board and shall serve
for the unexpired term of his predecessor. Members of the Board shall
cease to be Directors when they cease to be Members of the Association.
Directors need not be residents of the State of Wisconsin.
Section 3. Removal. Any Director may be removed from the
Board, with or without cause, by a Majority of the Members of the
Association, taken at a meeting of the Members called for that purpose.
In the event of removal, the Director's successor shall be elected by a
majority of the Members and shall serve for the unexpired term of his
predecessor.
Section 4. Compensation. No Director shall receive
compensation for any service rendered to the Association as such.
However, any Director may be reimbursed for actual expenses incurred in
the performance of his duties.
Section 5. Action Taken Without a Meeting. The Directors shall
have the right to take any action in the absence of a meeting which they
could take at a meeting by obtaining the written approval of all the
Directors. Any action so approved shall have the same effect as though
taken at a meeting of the Directors.
ARTICLE V
MEETING OF DIRECTORS
Section 1. Regular Meeting. Regular meetings of the Board of
Directors shall be held four (4) times per year without notice, at such
place and hour as may be fixed from time to time by resolution of the
Board. Should said meeting fall upon a legal holiday, then that meeting
shall be held at the same time on the next day which is not a legal
holiday.
Section 2. Special Meetings. Special meetings of the Board of
Directors shall be held when called by the President of the Association,
or by any two (2) Directors, after not less than forty-eight (48) hours
notice to each Director.
Section 3. Quorum. A majority of the Directors shall
constitute a quorum for the transaction of business. Every act or
decision done or made by the majority of the Directors present at a duly
held meeting at which a quorum is present shall be regarded as the act of
the Board.
Section 4. Waiver of Notice. Any member of the Board of
Directors may, at any time, waive notice of any meeting of the Board of
Directors in writing, and such waiver shall be deemed equivalent to the
giving of such notice. Attendance by a member of the Board of Directors
at any meeting of the Board shall constitute a waiver of notice by him of
the time and place thereof, except where the member attends a meeting and
objects thereat to the transaction of any business because the meeting is
not lawfully called or convened. If all the members of the Board of
Directors are present at any meeting of the Board, no notice shall be
required and any business may be transacted at such meeting.
Section 5. Telephonic Meetings. Except as herein provided and
notwithstanding any place set forth in the notice of the meeting or these
Bylaws, members of the Board of Directors (and any committees thereof
created pursuant to Article VIII hereof) may participate in regular or
special meetings by, or through the use of, any means of communication by
which all participants may simultaneously hear each other, such as by
conference telephone. If a meeting is conducted by such means, then at
the commencement of such meeting the presiding officer shall inform the
participating directors that a meeting is taking place at which official
business may be transacted. Any participant in a meeting by such means
shall be deemed present in person at such meeting. If action is to be
taken at any meeting held by such means on any of the following: (a) a
plan of merger or share exchange; (b) a sale, lease, exchange or other
disposition of substantial property, or assets of the Corporation; (c) a
voluntary dissolution or the revocation of voluntary dissolution
proceedings; or (d) a filing for bankruptcy, then the identity of each
director participating in such meeting must be verified by the disclosure
at such meeting by each such director of each such director's social
security number to the secretary of the meeting before a vote may be taken
on any of the foregoing matters. For purposes of the preceding clause
(b), the phrase "sale, lease, exchange or other disposition of substantial
property or assets" shall mean any sale, lease, exchange or other
disposition of property or assets of the Corporation having a net book
value equal to 10% or more of the net book value of the total assets of
the Corporation on and as of the close of the fiscal year last ended prior
to the date of such meeting and as to which financial statements of the
Corporation have been prepared. Notwithstanding the foregoing, no action
may be taken at any meeting held by such means on any particular matter
which the presiding officer determines, in his or her sole discretion, to
be inappropriate under the circumstances for action at a meeting held by
such means. Such determination shall be made and announced in advance of
such meeting.
ARTICLE VI
POWERS AND DUTIES OF THE BOARD OF DIRECTORS
Section 1. Powers. In addition to and not in limitation to
their other authority, the Board of Directors shall have power to:
a. Adopt, publish, amend and withdraw rules and
regulations governing the use of the Common Areas and the personal
conduct of the Members and their Occupants and Guests thereon, and to
establish penalties for the infraction thereof;
b. Suspend the voting rights of a Member during any
period in which such Member shall be in default in the payment of any
assessment levied by the Association. Such rights may also be
suspended after notice and hearing before the Board, for infraction
of published rules and regulations, these By-Laws or the Declaration;
c. Exercise for the Association all powers, duties and
authority vested in or delegated to the Association and not reserved
to the membership or officers by other provisions of these By-Laws or
the Declaration;
d. Engage the services of a managing agent and enter into
an Association Management Agreement including the Declarant or its
related entities;
e. Employ a manager, an independent contractor, or such
other employees as it deems necessary, and prescribe their duties;
f. Foreclose the lien against Units for which assessments
are not paid within thirty (30) days after due date, with or without
reservation of the right to pursue a deficiency judgment, or bring an
action at law against the Members personally obligated to pay the
same;
g. Open bank accounts on behalf of the Association and
designate the signatories required therefor;
h. Purchase, lease or otherwise acquire (in the name of
the Association or its designee, corporate or otherwise, on behalf of
all Members) Units offered for sale or lease or surrendered by
Members;
i. Purchase Units at foreclosure or other judicial sales
in the name of the Association or its designee, corporate or
otherwise, on behalf of all Members;
j. Sell, lease, mortgage, vote the votes appurtenant to
(other than for the election of members of the Board of Directors),
or otherwise deal with Units acquired by, and sublease Units leased
by, the Association or its designee;
k. Purchase, lease or otherwise acquire (in the name of
the Association or its designee, corporate or otherwise, on behalf of
all Members) tangible or intangible personal property for the use and
benefit of all Members, and decide whether and, if so, how much to
charge for the use of any of such property;
l. Organize corporations to act as designees of the
Association in acquiring title to or leasing Units or personal
property on behalf of all Members;
m. Borrow money, but the Association may not pledge
anything but Units or personal property owned or to be constructed or
acquired by the Association as security therefor; and
n. Lease, grant easements over or permit third parties to
use the Common Elements of the Condominium subject to any
restrictions set forth in the Declaration or these By-Laws during the
period in which the Declarant controls the Association's affairs.
o. Enter into shared use, access or other agreements on
behalf of all present and future Members with Declarant or related
entities.
p. Such other powers as set forth in the Declaration,
these By-Laws or delegated by the Members.
Section 2. Duties. It shall be the duty of the Board of
Directors to:
a. Cause to be kept a complete record of all its acts and
corporate affairs and to present a statement thereof to the Members
at the annual meeting of the Members, or at any special meeting when
such statement is requested in writing by Members having at least
one-third (1/3) of the votes of the Association;
b. Supervise all officers, agents and employees of the
Association, and see that their duties are properly performed;
c. As provided in the Declaration, to:
(1) Fix the amount of the annual assessment against
each Unit at least thirty (30) days in advance of each annual
assessment period;
(2) Send written notice of each assessment to every
Owner subject thereto at least ten (10) days in advance of each
annual assessment period;
(3) Fix the amount of, and notify every Owner of,
each special assessment levied on any or every Unit;
d. Issue, upon demand by any person under the conditions
set forth in the Declaration, a certificate setting forth whether or
not any assessment has been paid. A reasonable charge may be made by
the Board for the issuance of these certificates. If a certificate
states an assessment has been paid, such certificate shall be
conclusive evidence of such payment;
e. Procure and maintain adequate liability, hazard and
other insurance on property owned by the Association;
f. Cause all officers or employees having fiscal
responsibilities to be bonded, as it may deem appropriate;
g. Cause the Common Elements to be maintained;
h. Charge, in its discretion, reasonable fees for the use
of any personal property owned by the Association;
i. Grant easements through or over the Common Elements;
j. Grant or withhold approval of any action by a Unit
Owner or other person which would change the exterior appearance of a
Unit or any other portion of the Condominium;
k. Make contracts and incur liabilities in connection
with the operation of the Condominium; and
l. Maintain a current roster of names and addresses of
Unit Owners to which all notices shall be sent.
m. Perform such other duties as set forth in the
Declaration, these By-Laws or delegated by the Members.
ARTICLE VII
OFFICERS AND THEIR DUTIES
Section 1. Enumeration of Officers. The officers of this
Association shall be a President, one or more Vice-Presidents, and a
Secretary who shall at all times be members of the Board of Directors, a
Treasurer who shall be a Member of the Association but need not be a
member of the Board, and such other officers as the Board may from time to
time by resolution create.
Section 2. Election of Officers. The election of officers
shall take place at the first meeting of the Board of Directors following
each annual meeting of the Members.
Section 3. Term. The officers of this Association shall be
elected annually by the Board, and each shall hold office until his
successor is elected, unless he shall sooner resign, be removed, or
otherwise become disqualified to serve.
Section 4. Special Appointments. The Board may elect such
other officers as the affairs of the Association may require, each of whom
shall hold office for such period, have such authority, and perform such
duties as the Board may, from time to time, determine.
Section 5. Resignation and Removal. Any officer may be removed
from office, with or without cause, by the Board. Any officer may resign
at any time, giving written notice to the Board, the President or the
Secretary. Such resignation shall take effect on the date of receipt of
such notice or at any later time specified therein, and unless otherwise
specified therein, the acceptance of such resignation shall not be
necessary to make it effective. Officers who are members of the
Association upon their election shall cease to be officers upon ceasing to
be Members of the Association.
Section 6. Vacancies. A vacancy in any office may be filled by
appointment by the Board. The officer appointed to such vacancy shall
serve for the remainder of the term of the officer replaced.
Section 7. Multiple Offices. No person shall simultaneously
hold the offices of President and Secretary.
Section 8. Compensation. No officer shall receive compensation
for any service rendered to the Association, except at a rate established
by the Members at a meeting of the Membership. Any officer, however, may
be reimbursed for actual expenses incurred in performance of the officer's
duties.
Section 9. Duties. Except to the extent that the Board
delegates such duties to a managing agent, the duties of the officers
shall be as follows:
a. President. The President shall preside at all
meetings of the Board of Directors; shall see that orders and
resolutions of the Board are carried out; shall sign all leases,
mortgages, deeds and other written instruments and shall co-sign all
checks if required to do so by resolution of the Board of Directors.
b. Vice-President. The Vice-President shall act in the
place and stead of the President in the event of the President's
absence or inability or refusal to act, and shall exercise and
discharge such other duties as may be required by the Board.
c. Secretary. The Secretary shall record the votes and
keep the minutes of all meetings and proceedings of the Board and of
the Members; serve notice of meetings of the Board and of the
Members; keep appropriate current records of the Members of the
Association together with their addresses, and shall perform such
other duties as required by the Board.
d. Treasurer. The Treasurer shall receive and deposit in
appropriate bank accounts all monies of the Association and shall
disburse such funds as directed by resolution of the Board of
Directors; sign all checks and promissory notes of the Association;
keep proper books of account; cause an annual review of the
Association books to be made by an accountant at the completion of
each fiscal year; and prepare an annual budget and a statement of
income and expenditures to be presented to the membership at its
regular annual meeting, and deliver a copy of each to the members.
ARTICLE VIII
COMMITTEES
The Board of Directors shall constitute an Architectural Control
Committee, as provided in the Declaration. The Board may appoint a
committee, as provided in the Declaration. The Board may appoint a
committee of less than the whole to carry out this function. In addition,
the Board of Directors shall appoint other committees as deemed
appropriate in carrying out its purpose.
ARTICLE IX
BOOKS AND RECORDS
The books, records and papers of the Association shall at all
times, during reasonable business hours, be subject to inspection by any
Member. The Declaration, Articles and By-Laws of the Association shall be
available for inspection by any Member at the principal office of the
Association, where copies may be purchased at a reasonable cost.
ARTICLE X
ASSESSMENTS
As more fully provided in the Declaration, each Member is
obligated to pay to the Association annual and special assessments which
are secured by a continuing lien upon the Unit against which the
assessment is made. Any assessments which are not paid when due shall be
delinquent. If the assessment is not paid within fifteen (15) days after
the due date, the assessment shall bear interest and be subject to penalty
as set forth in the Declaration. The Association may bring an action at
law against the Member(s) personally obligated to pay the same or
foreclose the lien against the Unit, and interest, costs and reasonable
attorneys' fees of any such action shall be added to the amount of such
assessment. No Member may waive or otherwise escape liability for the
assessments provided for therein by nonuse of the Common Area or
abandonment of the Member's Unit.
ARTICLE XI
ABATEMENT AND ENJOINING OF VIOLATIONS
The violation of any rule or regulation adopted by the Board of
Directors, or the breach of any By-Laws contained herein, or the breach of
any provision of the Declaration, shall give the Board of Directors the
right, in addition to any other rights set forth in these By-Laws: (a) to
enter the Unit in which, or as to which, such a violation or breach exists
and to summarily abate and remove, at the expense of the defaulting
Member(s), any structure, thing or condition that may exist therein
contrary to the intent and meaning of the provisions hereof, and the Board
of Directors shall not thereby be deemed guilty in any manner of trespass;
or (b) to enjoin, abate or remedy such thing or condition by appropriate
legal proceedings.
ARTICLE XII
PAYMENT OF ASSESSMENTS
No Member shall be permitted to convey, mortgage, pledge,
hypothecate, sell or lease his Unit unless and until he shall have paid in
full to the Board of Directors all unpaid common charges theretofore
assessed by the Board of Directors against his Unit and until he shall
have satisfied all unpaid liens against such Unit, except permitted
mortgages.
ARTICLE XIII
CONFLICTS
These By-Laws are set forth to comply with the requirements of
the Wisconsin Condominium Ownership Act. In case the provisions of these
By-Laws, the Act, the Declaration, the Plat, or the Articles conflict in
any way, the following shall apply:
a. The provisions of the Act control over provisions of
the By-Laws, the Declaration, the Plat and the Articles.
b. The provisions of the Declaration control over
provisions of the Plat.
c. The provisions of the Declaration and the Plat control
over the provisions of the By-Laws and the Articles.
d. The provisions of the Articles control over the
provisions of the By-Laws.
ARTICLE XIV
INDEMNIFICATION
Section 1. Mandatory Indemnification. The Association shall,
to the full extent permitted by the law, indemnify any person who was or
is party or threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a
director or officer of the Association. Such right of indemnification
shall inure to the benefit of the heirs, executors, administrators and
personal representatives of such a person.
Section 2. Permissive Supplementary Benefits. The Association
may, but shall not be required to, supplement the right of indemnification
above by (a) the purchase of insurance on behalf of any one or more of
such persons, whether or not the corporation would be obligated to
indemnify such person under above, (b) individual or group indemnification
agreements with any one or more of such persons, and (c) advances for
related expenses of such a person.
ARTICLE XV
AMENDMENTS
These By-Laws may be amended by affirmative vote of Members
having at least three-quarters (3/4) of the votes of all Members present
in person or by proxy and voting at a regular or special meeting of the
Members. During the period of Declarant control, however, no such
amendment may occur without the Declarant's consent.
ARTICLE XVI
FISCAL YEAR
The fiscal year of the corporation shall be the period beginning
January 1st and ending December 31st, or such other fiscal year as the
Board of Directors may, from time to time, designate.
ARTICLE XVII
CORPORATE SEAL
The Association shall not have a seal; and where a seal be
required, there shall be a notation thereon to the effect that the
Association has no seal.
ARTICLES OF INCORPORATION
OF
WILDERNESS DEVELOPMENT CORPORATION
_______________
The undersigned, acting as incorporator of a corporation under
the Wisconsin Business Corporation Law, Chapter 180 of the Wisconsin
Statutes, adopts the following Articles of Incorporation for such
corporation.
_______________
FIRST: The name of the Corporation is Wilderness Development
Corporation.
SECOND: The aggregate number of shares which the Corporation
shall have authority to issue is Nine Thousand (9,000), consisting of one
class only, designated as "Common Stock," of the par value of $.10 per
share.
THIRD: The number of directors constituting the Board of
Directors shall initially be two (2) and thereafter such other number as
may be designated from time to time by the Board of Directors. The
initial directors shall be Thomas J. Lucke and S. Peter Helland, Jr.
FOURTH: The address of the initial registered office of the
Corporation is:
440 Science Drive, 4th Floor, Madison, Wisconsin and the name of its
initial registered agent at such address is Timothy C. Sweeney.
FIFTH: The Bylaws of the Corporation may provide for a
greater or lower quorum requirement or a greater voting requirement for
shareholders or voting groups of shareholders than is provided by the
Wisconsin Business Corporation Law.
SIXTH: The name and address of the sole incorporator is:
Name Address
Timothy C. Sweeney c/o Sweeney & Sweeney, S.C.
440 Science Drive, 4th Floor
Madison, WI 53711
Executed on this 25th day of July, 1996.
_____________________________
Timothy C. Sweeney
Sole Incorporator
This instrument was drafted by Attorney Timothy C. Sweeney, Sweeney &
Sweeney, S.C., 440 Science Drive, 4th Floor, Madison, WI 53711 (608) 238-
4444.
BYLAWS
OF
WILDERNESS DEVELOPMENT CORPORATION
(a Wisconsin Corporation)
Dated: July 25, 1996
<PAGE>
ARTICLE I. OFFICES
1.01. Principal and Business Offices. The Corporation may
have such principal and other business offices, either within or without
the State of Wisconsin, as the Board of Directors may designate or as the
business of the Corporation may require from time to time.
1.02. Registered Office. The registered office of the
Corporation required by the Wisconsin Business Corporation Law to be
maintained in the State of Wisconsin may be, but need not be, identical
with the principal office in the State of Wisconsin, and the address of
the registered office may be changed from time to time by the Board of
Directors or by the registered agent. The business office of the
registered agent of the Corporation shall be identical to such registered
office.
ARTICLE II. SHAREHOLDERS
2.01. Annual Meeting. The annual meeting of the shareholders
shall be held on the 2nd Friday in July of each year, or at such other
time and date within thirty days before or after such date as may be fixed
by or under the authority of the Board of Directors, for the purpose of
electing directors and for the transaction of such other business as may
come before the meeting. If the day fixed for the annual meeting shall be
a legal holiday in the State of Wisconsin, such meeting shall be held on
the next succeeding business day. If the election of directors shall not
be held on the day designated herein, or fixed as herein provided, for any
annual meeting of the shareholders, or at any adjournment thereof, the
Board of Directors shall cause the election to be held at a special
meeting of the shareholders as soon thereafter as is practicable.
2.02. Special Meetings. Special meetings of the shareholders,
for any purpose or purposes, unless otherwise prescribed by the Wisconsin
Business Corporation Law, may be called by the Board of Directors or the
President. The Corporation shall call a special meeting of shareholders
in the event that the holders of at least 10% of all of the votes entitled
to be cast on any issue proposed to be considered at the proposed special
meeting sign, date and deliver to the Corporation one or more written
demands for the meeting describing one or more purposes for which it is to
be held. The Corporation shall give notice of such a special meeting
within thirty days after the date that the demand is delivered to the
Corporation.
2.03. Place of Meeting. The Board of Directors may designate
any place, either within or without the State of Wisconsin, as the place
of meeting for any annual or special meeting of shareholders. If no
designation is made, the place of meeting shall be the principal office of
the Corporation. Any meeting may be adjourned to reconvene at any place
designated by vote of a majority of the shares represented thereat.
2.04. Notice of Meeting. Written notice stating the date, time
and place of any meeting of shareholders and, in case of a special
meeting, the purpose or purposes for which the meeting is called, shall be
delivered not less than ten days nor more than sixty days before the date
of the meeting (unless a different time is provided by the Wisconsin
Business Corporation Law or the Articles of Incorporation), either
personally or by mail, by or at the direction of the President or the
Secretary, to each shareholder of record entitled to vote at such meeting
and to such other persons as required by the Wisconsin Business
Corporation Law. If mailed, such notice shall be deemed to be effective
when deposited in the United States mail, addressed to the shareholder at
his or her address as it appears on the stock record books of the
Corporation, with postage thereon prepaid. If an annual or special meeting
of shareholders is adjourned to a different date, time or place, the
Corporation shall not be required to give notice of the new date, time or
place if the new date, time or place is announced at the meeting before
adjournment; provided, however, that if a new record date for an adjourned
meeting is or must be fixed, the Corporation shall give notice of the
adjourned meeting to persons who are shareholders as of the new record
date.
2.05. Waiver of Notice. A shareholder may waive any notice
required by the Wisconsin Business Corporation Law, the Articles of
Incorporation or these Bylaws before or after the date and time stated in
the notice. The waiver shall be in writing and signed by the shareholder
entitled to the notice, contain the same information that would have been
required in the notice under applicable provisions of the Wisconsin
Business Corporation Law (except that the time and place of meeting need
not be stated) and be delivered to the Corporation for inclusion in the
corporate records. A shareholder's attendance at a meeting, in person or
by proxy, waives objection to all of the following: (a) lack of notice or
defective notice of the meeting, unless the shareholder at the beginning
of the meeting or promptly upon arrival objects to holding the meeting or
transacting business at the meeting; and (b) consideration of a particular
matter at the meeting that is not within the purpose described in the
meeting notice, unless the shareholder objects to considering the matter
when it is presented.
2.06. Fixing of Record Date. The Board of Directors may fix in
advance a date as the record date for the purpose of determining
shareholders entitled to notice of and to vote at any meeting of
shareholders, shareholders entitled to demand a special meeting as
contemplated by Section 2.02 hereof, shareholders entitled to take any
other action, or shareholders for any other purpose. Such record date
shall not be more than seventy days prior to the date on which the
particular action, requiring such determination of shareholders, is to be
taken. If no record date is fixed by the Board of Directors or by the
Wisconsin Business Corporation Law for the determination of shareholders
entitled to notice of and to vote at a meeting of shareholders, the record
date shall be the close of business on the day before the first notice is
given to shareholders. If no record date is fixed by the Board of
Directors or by the Wisconsin Business Corporation Law for the
determination of shareholders entitled to demand a special meeting as
contemplated in Section 2.02 hereof, the record date shall be the date
that the first shareholder signs the demand. Except as provided by the
Wisconsin Business Corporation Law for a court-ordered adjournment, a
determination of shareholders entitled to notice of and to vote at a
meeting of shareholders is effective for any adjournment of such meeting
unless the Board of Directors fixes a new record date, which it shall do
if the meeting is adjourned to a date more than 120 days after the date
fixed for the original meeting. The record date for determining
shareholders entitled to a distribution (other than a distribution
involving a purchase, redemption or other acquisition of the Corporation's
shares) or a share dividend is the date on which the Board of Directors
authorized the distribution or share dividend, as the case may be, unless
the Board of Directors fixes a different record date.
2.07. Shareholders' List for Meetings. After a record date for
a special or annual meeting of shareholders has been fixed, the
Corporation shall prepare a list of the names of all of the shareholders
entitled to notice of the meeting. The list shall be arranged by class or
series of shares, if any, and show the address of and number of shares
held by each shareholder. Such list shall be available for inspection by
any shareholder, beginning two business days after notice of the meeting
is given for which the list was prepared and continuing to the date of the
meeting, at the Corporation's principal office or at a place identified in
the meeting notice in the city where the meeting will be held. A
shareholder or his or her agent may, on written demand, inspect and,
subject to the limitations imposed by the Wisconsin Business Corporation
Law, copy the list, during regular business hours and at his or her
expense, during the period that it is available for inspection pursuant to
this Section 2.07. The Corporation shall make the shareholders' list
available at the meeting and any shareholder or his or her agent or
attorney may inspect the list at any time during the meeting or any
adjournment thereof. Refusal or failure to prepare or make available the
shareholders' list shall not affect the validity of any action taken at a
meeting of shareholders.
2.08. Quorum and Voting Requirements. Shares entitled to vote
as a separate voting group may take action on a matter at a meeting only
if a quorum of those shares exists with respect to that matter. If the
Corporation has only one class of common stock outstanding, such class
shall constitute a separate voting group for purposes of this Section
2.08. Except as otherwise provided in the Articles of Incorporation or
the Wisconsin Business Corporation Law, a majority of the votes entitled
to be cast on the matter shall constitute a quorum of the voting group for
action on that matter. Once a share is represented for any purpose at a
meeting, other than for the purpose of objecting to holding the meeting or
transacting business at the meeting, it is considered present for purposes
of determining whether a quorum exists for the remainder of the meeting
and for any adjournment of that meeting unless a new record date is or
must be set for the adjourned meeting. If a quorum exists, except in the
case of the election of directors, action on a matter shall be approved if
the votes cast within the voting group favoring the action exceed the
votes cast opposing the action, unless the Articles of Incorporation or
the Wisconsin Business Corporation Law requires a greater number of
affirmative votes. Unless otherwise provided in the Articles of
Incorporation, each director shall be elected by a plurality of the votes
cast by the shares entitled to vote in the election of directors at a
meeting at which a quorum is present. Though less than a quorum of the
outstanding votes of a voting group are represented at a meeting, a
majority of the votes so represented may adjourn the meeting from time to
time without further notice. At such adjourned meeting at which a quorum
shall be present or represented, any business may be transacted which
might have been transacted at the meeting as originally notified.
2.09. Conduct of Meeting. The President, and in his or her
absence, a Vice President in the order provided under Section 4.07 hereof,
and in their absence, any person chosen by the shareholders present shall
call the meeting of the shareholders to order and shall act as chairman of
the meeting, and the Secretary of the Corporation shall act as secretary
of all meetings of the shareholders, but, in the absence of the Secretary,
the presiding officer may appoint any other person to act as secretary of
the meeting.
2.10. Proxies. At all meetings of shareholders, a shareholder
may vote his or her shares in person or by proxy. A shareholder may
appoint a proxy to vote or otherwise act for the shareholder by signing an
appointment form, either personally or by his or her attorney-in-fact. An
appointment of a proxy is effective when received by the Secretary or
other officer or agent of the Corporation authorized to tabulate votes.
An appointment is valid for eleven months from the date of its signing
unless a different period is expressly provided in the appointment form.
2.11. Voting of Shares. Except as provided in the Articles of
Incorporation or in the Wisconsin Business Corporation Law, each
outstanding share, regardless of class, is entitled to one vote on each
matter voted on at a meeting of shareholders.
2.12. Action without Meeting. Any action required or permitted
by the Articles of Incorporation or these Bylaws or any provision of the
Wisconsin Business Corporation Law to be taken at a meeting of the
shareholders may be taken without a meeting and without action by the
Board of Directors if a written consent or consents, describing the action
so taken, is signed by all of the shareholders entitled to vote with
respect to the subject matter thereof and delivered to the Corporation for
inclusion in the corporate records.
2.13. Acceptance of Instruments Showing Shareholder Action. If
the name signed on a vote, consent, waiver or proxy appointment
corresponds to the name of a shareholder, the Corporation, if acting in
good faith, may accept the vote, consent, waiver or proxy appointment and
give it effect as the act of a shareholder. If the name signed on a vote,
consent, waiver or proxy appointment does not correspond to the name of a
shareholder, the Corporation, if acting in good faith, may accept the
vote, consent, waiver or proxy appointment and give it effect as the act
of the shareholder if any of the following apply:
(a) The shareholder is an entity and the name signed purports
to be that of an officer or agent of the entity.
(b) The name purports to be that of a personal representative,
administrator, executor, guardian or conservator representing the
shareholder and, if the Corporation requests, evidence of fiduciary status
acceptable to the Corporation is presented with respect to the vote,
consent, waiver or proxy appointment.
(c) The name signed purports to be that of a receiver or
trustee in bankruptcy of the shareholder and, if the Corporation requests,
evidence of this status acceptable to the Corporation is presented with
respect to the vote, consent, waiver or proxy appointment.
(d) The name signed purports to be that of a pledgee,
beneficial owner, or attorney-in-fact of the shareholder and, if the
Corporation requests, evidence acceptable to the Corporation of the
signatory's authority to sign for the shareholder is presented with
respect to the vote, consent, waiver or proxy appointment.
(e) Two or more persons are the shareholders as co-tenants or
fiduciaries and the name signed purports to be the name of at least one of
the co-owners and the person signing appears to be acting on behalf of all
co-owners.
The Corporation may reject a vote, consent, waiver or proxy appointment if
the Secretary or other officer or agent of the Corporation who is
authorized to tabulate votes, acting in good faith, has reasonable basis
for doubt about the validity of the signature on it or about the
signatory's authority to sign for the shareholder.
ARTICLE III. BOARD OF DIRECTORS
3.01. General Powers and Number. All corporate powers shall be
exercised by or under the authority of, and the business and affairs of
the Corporation managed under the direction of, the Board of Directors.
The number of directors of the Corporation shall be established at the
annual meeting of shareholders or any other duly called meeting of
shareholders.
3.02. Tenure and Qualifications. Each director shall hold
office until the next annual meeting of shareholders and until his or her
successor shall have been elected and, if necessary, qualified, or until
there is a decrease in the number of directors which takes effect after
the expiration of his or her term, or until his or her prior death,
resignation or removal. A director may be removed by the shareholders
only at a meeting called for the purpose of removing the director, and the
meeting notice shall state that the purpose, or one of the purposes, of
the meeting is removal of the director. A director may be removed from
office with or without cause if the votes cast to remove the director
exceeds the number of votes cast not to remove such director. A director
may resign at any time by delivering written notice which complies with
the Wisconsin Business Corporation Law to the Board of Directors, to the
President (in his or her capacity as chairperson of the Board of
Directors) or to the Corporation. A director's resignation is effective
when the notice is delivered unless the notice specifies a later effective
date. Directors need not be residents of the State of Wisconsin or
shareholders of the Corporation.
3.03. Regular Meetings. A regular meeting of the Board of
Directors shall be held without other notice than this bylaw immediately
after the annual meeting of shareholders and each adjourned session
thereof. The place of such regular meeting shall be the same as the place
of the meeting of shareholders which precedes it, or such other suitable
place as may be announced at such meeting of shareholders. The Board of
Directors shall provide, by resolution, the date, time and place, either
within or without the State of Wisconsin, for the holding of additional
regular meetings of the Board of Directors without other notice than such
resolution.
3.04. Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the President, Secretary
or any two directors. The President or Secretary may fix any place,
either within or without the State of Wisconsin, as the place for holding
any special meeting of the Board of Directors, and if no other place is
fixed the place of the meeting shall be the principal business office of
the Corporation in the State of Wisconsin.
3.05. Notice; Waiver. Notice of each special meeting of the
Board of Directors shall be given by written notice delivered or
communicated in person, by telegraph, teletype, facsimile or other form of
wire or wireless communication, or by mail or private carrier, to each
director at his business address or at such other address as such director
shall have designated in writing filed with the Secretary, in each case
not less than forty-eight hours prior to the meeting. The notice need not
prescribe the purpose of the special meeting of the Board of Directors or
the business to be transacted at such meeting. If mailed, such notice
shall be deemed to be effective when deposited in the United States mail
so addressed, with postage thereon prepaid. If notice is given by
telegram, such notice shall be deemed to be effective when the telegram is
delivered to the telegraph company. If notice is given by private
carrier, such notice shall be deemed to be effective when delivered to the
private carrier. Whenever any notice whatever is required to be given to
any director of the Corporation under the Articles of Incorporation or
these Bylaws or any provision of the Wisconsin Business Corporation Law, a
waiver thereof in writing, signed at any time, whether before or after the
date and time of meeting, by the director entitled to such notice shall be
deemed equivalent to the giving of such notice. The Corporation shall
retain any such waiver as part of the permanent corporate records. A
director's attendance at or participation in a meeting waives any required
notice to him or her of the meeting unless the director at the beginning
of the meeting or promptly upon his or her arrival objects to holding the
meeting or transacting business at the meeting and does not thereafter
vote for or assent to action taken at the meeting.
3.06. Quorum. Except as otherwise provided by the Wisconsin
Business Corporation Law or by the Articles of Incorporation or these
Bylaws, a majority of the number of directors specified in Section 3.01 of
these Bylaws shall constitute a quorum for the transaction of business at
any meeting of the Board of Directors. Except as otherwise provided by
the Wisconsin Business Corporation Law or by the Articles of Incorporation
or by these Bylaws, a quorum of any committee of the Board of Directors
created pursuant to Section 3.12 hereof shall consist of a majority of the
number of directors appointed to serve on the committee. A majority of
the directors present (though less than such quorum) may adjourn any
meeting of the Board of Directors or any committee thereof, as the case
may be, from time to time without further notice.
3.07. Manner of Acting. The affirmative vote of a majority of
the directors present at a meeting of the Board of Directors or a
committee thereof at which a quorum is present shall be the act of the
Board of Directors or such committee, as the case may be, unless the
Wisconsin Business Corporation Law, the Articles of Incorporation or these
Bylaws require the vote of a greater number of directors.
3.08. Conduct of Meetings. The President, and in his or her
absence, a Vice President in the order provided under Section 4.07, and in
their absence, any director chosen by the directors present, shall call
meetings of the Board of Directors to order and shall act as chairman of
the meeting. The Secretary of the Corporation shall act as secretary of
all meetings of the Board of Directors but in the absence of the
Secretary, the presiding officer may appoint any other person present to
act as secretary of the meeting. Minutes of any regular or special
meeting of the Board of Directors shall be prepared and distributed to
each director.
3.09. Vacancies. Except as provided below, any vacancy
occurring in the Board of Directors, including a vacancy resulting from an
increase in the number of directors, may be filled by any of the
following: (a) the shareholders; (b) the Board of Directors; or (c) if
the directors remaining in office constitute fewer than a quorum of the
Board of Directors, the directors, by the affirmative vote of a majority
of all directors remaining in office. If the vacant office was held by a
director elected by a voting group of shareholders, only the holders of
shares of that voting group may vote to fill the vacancy if it is filled
by the shareholders, and only the remaining directors elected by that
voting group may vote to fill the vacancy if it is filled by the
directors. A vacancy that will occur at a specific later date, because of
a resignation effective at a later date or otherwise, may be filled before
the vacancy occurs, but the new director may not take office until the
vacancy occurs.
3.10. Compensation. The Board of Directors, irrespective of
any personal interest of any of its members, may establish reasonable
compensation of all directors for services to the Corporation as
directors, officers or otherwise, or may delegate such authority to an
appropriate committee. The Board of Directors also shall have authority
to provide for or delegate authority to an appropriate committee to
provide for reasonable pensions, disability or death benefits, and other
benefits or payments, to directors, officers and employees and to their
estates, families, dependents or beneficiaries on account of prior
services rendered by such directors, officers and employees to the
Corporation.
3.11. Presumption of Assent. A director who is present and is
announced as present at a meeting of the Board of Directors or any
committee thereof created in accordance with Section 3.12 hereof, when
corporate action is taken, assents to the action taken unless any of the
following occurs: (a) the director objects at the beginning of the meeting
or promptly upon his or her arrival to holding the meeting or transacting
business at the meeting; (b) the director's dissent or abstention from the
action taken is entered in the minutes of the meeting; or (c) the director
delivers written notice that complies with the Wisconsin Business
Corporation Law of his or her dissent or abstention to the presiding
officer of the meeting before its adjournment or to the Corporation
immediately after adjournment of the meeting. Such right of dissent or
abstention shall not apply to a director who votes in favor of the action
taken.
3.12. Committees. The Board of Directors by resolution adopted
by the affirmative vote of a majority of all of the directors then in
office may create one or more committees, appoint members of the Board of
Directors to serve on the committees and designate other members of the
Board of Directors to serve as alternates. Each committee shall have two
or more members who shall, unless otherwise provided by the Board of
Directors, serve at the pleasure of the Board of Directors. A committee
may be authorized to exercise the authority of the Board of Directors,
except that a committee may not do any of the following: (a) authorize
distributions; (b) approve or propose to shareholders action that the
Wisconsin Business Corporation Law requires to be approved by
shareholders; (c) fill vacancies on the Board of Directors or, unless the
Board of Directors provides by resolution that vacancies on a committee
shall be filled by the affirmative vote of the remaining committee
members, on any Board committee; (d) amend the Corporation's Articles of
Incorporation; (e) adopt, amend or repeal Bylaws; (f) approve a plan of
merger not requiring shareholder approval; (g) authorize or approve
reacquisition of shares, except according to a formula or method
prescribed by the Board of Directors; and (h) authorize or approve the
issuance or sale or contract for sale of shares, or determine the
designation and relative rights, preferences and limitations of a class or
series of shares, except that the Board of Directors may authorize a
committee to do so within limits prescribed by the Board of Directors.
Unless otherwise provided by the Board of Directors in creating the
committee, a committee may employ counsel, accountants and other
consultants to assist it in the exercise of its authority.
3.13. Telephonic Meetings. To the extent provided herein and
notwithstanding any place set forth in the notice of the meeting or these
Bylaws, members of the Board of Directors (and any committees thereof
created pursuant to Section 3.12 hereof) may participate in regular or
special meetings by, or through the use of, any means of communication by
which all participants may simultaneously hear each other, such as by
conference telephone. If a meeting is conducted by such means, then at
the commencement of such meeting the presiding officer shall inform the
participating directors that a meeting is taking place at which official
business may be transacted. Any participant in a meeting by such means
shall be deemed present in person at such meeting.
3.14. Action Without Meeting. Any action required or permitted
by the Wisconsin Business Corporation Law to be taken at a meeting of the
Board of Directors or a committee thereof created pursuant to Section 3.12
hereof may be taken without a meeting if the action is taken by all
members of the Board or of the committee. The action shall be evidenced
by one or more written consents describing the action taken, signed by
each director or committee member and retained by the Corporation. Such
action shall be effective when the last director or committee member signs
the consent, unless the consent specifies a different effective date.
ARTICLE IV. OFFICERS
4.01. Number. The principal officers of the Corporation shall
be a President, the number of Vice Presidents as authorized from time to
time by the Board of Directors, a Secretary, and a Treasurer, each of whom
shall be elected by the Board of Directors. Such other officers and
assistant officers as may be deemed necessary may be elected or appointed
by the Board of Directors. The Board of Directors may also authorize any
duly authorized officer to appoint one or more officers or assistant
officers. Any two or more offices may be held by the same person.
4.02. Election and Term of Office. The officers of the
Corporation to be elected by the Board of Directors shall be elected
annually by the Board of Directors at the first meeting of the Board of
Directors held after each annual meeting of the shareholders. If the
election of officers shall not be held at such meeting, such election
shall be held as soon thereafter as is practicable. Each officer shall
hold office until his or her successor shall have been duly elected or
until his or her prior death, resignation or removal.
4.03. Removal. The Board of Directors may remove any officer
and, unless restricted by the Board of Directors or these Bylaws, an
officer may remove any officer or assistant officer appointed by that
officer, at any time, with or without cause and notwithstanding the
contract rights, if any, of the officer removed. The appointment of an
officer does not of itself create contract rights.
4.04. Resignation. An officer may resign at any time by
delivering notice to the Corporation that complies with the Wisconsin
Business Corporation Law. The resignation shall be effective when the
notice is delivered, unless the notice specifies a later effective date
and the Corporation accepts the later effective date.
4.05. Vacancies. A vacancy in any principal office because of
death, resignation, removal, disqualification or otherwise, shall be
filled by the Board of Directors for the unexpired portion of the term.
If a resignation of an officer is effective at a later date as
contemplated by Section 4.04 hereof, the Board of Directors may fill the
pending vacancy before the effective date if the Board provides that the
successor may not take office until the effective date.
4.06. President. The President shall be the principal
executive officer of the Corporation and, subject to the direction of the
Board of Directors, shall in general supervise and control all of the
business and affairs of the Corporation. The President shall, when
present, preside at all meetings of the shareholders and of the Board of
Directors. He or she shall have authority, subject to such rules as may
be prescribed by the Board of Directors, to appoint such agents and
employees of the Corporation as he or she shall deem necessary, to
prescribe their powers, duties and compensation, and to delegate authority
to them. Such agents and employees shall hold office at the discretion of
the President. He or she shall have authority to sign, execute and
acknowledge, on behalf of the Corporation, all deeds, mortgages, bonds,
stock certificates, contracts, leases, reports and all other documents or
instruments necessary or proper to be executed in the course of the
Corporation's regular business, or which shall be authorized by resolution
of the Board of Directors; and, except as otherwise provided by law or the
Board of Directors, he or she may authorize any Vice President or other
officer or agent of the Corporation to sign, execute and acknowledge such
documents or instruments in his or her place and stead. In general he or
she shall perform all duties incident to the office of President and such
other duties as may be prescribed by the Board of Directors from time to
time.
4.07. The Vice Presidents. In the absence of the President or
in the event of the President's death, inability or refusal to act, or in
the event for any reason it shall be impracticable for the President to
act personally, the Vice President (or in the event there be more than one
Vice President, the Vice Presidents in the order designated by the Board
of Directors, or in the absence of any designation, then in the order of
their election) shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the
restrictions upon the President. Any Vice President may sign, with the
Secretary or Assistant Secretary, certificates for shares of the
Corporation; and shall perform such other duties and have such authority
as from time to time may be delegated or assigned to him or her by the
President or by the Board of Directors. The execution of any instrument of
the Corporation by any Vice President shall be conclusive evidence, as to
third parties, of his or her authority to act in the stead of the
President.
4.08. The Secretary. The Secretary shall: (a) keep minutes of
the meetings of the shareholders and of the Board of Directors (and of
committees thereof) in one or more books provided for that purpose
(including records of actions taken by the shareholders or the Board of
Directors (or committees thereof) without a meeting); (b) see that all
notices are duly given in accordance with the provisions of these Bylaws
or as required by the Wisconsin Business Corporation Law; (c) be custodian
of the corporate records and of the seal of the Corporation and see that
the seal of the Corporation is affixed to all documents the execution of
which on behalf of the Corporation under its seal is duly authorized; (d)
maintain a record of the shareholders of the Corporation, in a form that
permits preparation of a list of the names and addresses of all
shareholders, by class or series of shares and showing the number and
class or series of shares held by each shareholder; (e) sign with the
President, or a Vice President, certificates for shares of the
Corporation, the issuance of which shall have been authorized by
resolution of the Board of Directors; (f) have general charge of the stock
transfer books of the Corporation; and (g) in general perform all duties
incident to the office of Secretary and have such other duties and
exercise such authority as from time to time may be delegated or assigned
by the President or by the Board of Directors.
4.09. The Treasurer. The Treasurer shall: (a) have charge and
custody of and be responsible for all funds and securities of the
Corporation; (b) maintain appropriate accounting records; (c) receive and
give receipts for moneys due and payable to the Corporation from any
source whatsoever, and deposit all such moneys in the name of the
Corporation in such banks, trust companies or other depositaries as shall
be selected in accordance with the provisions of Section 5.04; and (d) in
general perform all of the duties incident to the office of Treasurer and
have such other duties and exercise such other authority as from time to
time may be delegated or assigned by the President or by the Board of
Directors. If required by the Board of Directors, the Treasurer shall
give a bond for the faithful discharge of his or her duties in such sum
and with such surety or sureties as the Board of Directors shall
determine.
4.10. Assistant Secretaries and Assistant Treasurers. There
shall be such number of Assistant Secretaries and Assistant Treasurers as
the Board of Directors may from time to time authorize. The Assistant
Secretaries may sign with the President or a Vice President certificates
for shares of the Corporation the issuance of which shall have been
authorized by a resolution of the Board of Directors. The Assistant
Treasurers shall respectively, if required by the Board of Directors, give
bonds for the faithful discharge of their duties in such sums and with
such sureties as the Board of Directors shall determine. The Assistant
Secretaries and Assistant Treasurers, in general, shall perform such
duties and have such authority as shall from time to time be delegated or
assigned to them by the Secretary or the Treasurer, respectively, or by
the President or the Board of Directors.
4.11. Other Assistants and Acting Officers. The Board of
Directors shall have the power to appoint, or to authorize any duly
appointed officer of the Corporation to appoint, any person to act as
assistant to any officer, or as agent for the Corporation in his or her
stead, or to perform the duties of such officer whenever for any reason it
is impracticable for such officer to act personally, and such assistant or
acting officer or other agent so appointed by the Board of Directors or an
authorized officer shall have the power to perform all the duties of the
office to which he or she is so appointed to be an assistant, or as to
which he or she is so appointed to act, except as such power may be
otherwise defined or restricted by the Board of Directors or the
appointing officer.
ARTICLE V. CONTRACTS, LOANS, CHECKS
AND DEPOSITS; SPECIAL CORPORATE ACTS
5.01. Contracts. The President may enter into any contract or
execute or deliver any instrument in the name of and on behalf of the
Corporation. All deeds, mortgages and instruments of assignment or pledge
made by the Corporation shall be executed in the name of the Corporation
by the President, when necessary or required, shall affix the corporate
seal, if any, thereto; and when so executed no other party to such
instrument or any third party shall be required to make any inquiry into
the authority of the signing officer or officers.
5.02. Loans. No indebtedness for borrowed money shall be
contracted on behalf of the Corporation and no evidences of such
indebtedness shall be issued in its name unless authorized by or under the
authority of a resolution of the Board of Directors. Such authorization
may be general or confined to specific instances.
5.03. Checks, Drafts, etc. All checks, drafts or other orders
for the payment of money, notes or other evidences of indebtedness issued
in the name of the Corporation, shall be signed by such officer or
officers, agent or agents of the Corporation and in such manner as shall
from time to time be determined by or under the authority of a resolution
of the Board of Directors.
5.04. Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the
Corporation in such banks, trust companies or other depositaries as may be
selected by or under the authority of a resolution of the Board of
Directors.
5.05. Voting of Securities Owned by this Corporation. Subject
always to the specific directions of the Board of Directors, (a) any
shares or other securities issued by any other corporation and owned or
controlled by this Corporation may be voted at any meeting of security
holders of such other corporation by the President of this Corporation if
he or she be present, or in his or her absence by any Vice President of
this Corporation who may be present, and (b) whenever, in the judgment of
the President, or in his or her absence, of any Vice President, it is
desirable for this Corporation to execute a proxy or written consent in
respect to any shares or other securities issued by any other corporation
and owned by this Corporation, such proxy or consent shall be executed in
the name of this Corporation by the President or one of the Vice
Presidents of this Corporation, without necessity of any authorization by
the Board of Directors, affixation of corporate seal, if any, or
countersignature or attestation by another officer. Any person or persons
designated in the manner above stated as the proxy or proxies of this
Corporation shall have full right, power and authority to vote the shares
or other securities issued by such other corporation and owned by this
Corporation the same as such shares or other securities might be voted by
this Corporation.
ARTICLE VI. CERTIFICATES FOR SHARES; TRANSFER OF SHARES
6.01. Certificates for Shares. Certificates representing
shares of the Corporation shall be in such form, consistent with the
Wisconsin Business Corporation Law, as shall be determined by the Board of
Directors. Such certificates shall be signed by the President or a Vice
President and by the Secretary or an Assistant Secretary. All
certificates for shares shall be consecutively numbered or otherwise
identified. The name and address of the person to whom the shares
represented thereby are issued, with the number of shares and date of
issue, shall be entered on the stock transfer books of the Corporation.
All certificates surrendered to the Corporation for transfer shall be
cancelled and no new certificate shall be issued until the former
certificate for a like number of shares shall have been surrendered and
cancelled, except as provided in Section 6.06.
6.02. Facsimile Signatures and Seal. The seal of the
Corporation, if any, on any certificates for shares may be a facsimile.
The signature of the President or Vice President and the Secretary or
Assistant Secretary upon a certificate may be facsimiles if the
certificate is manually signed on behalf of a transfer agent, or a
registrar, other than the Corporation itself or an employee of the
Corporation.
6.03. Signature by Former Officers. The validity of a share
certificate is not affected if a person who signed the certificate (either
manually or in facsimile) no longer holds office when the certificate is
issued.
6.04. Transfer of Shares. Prior to due presentment of a
certificate for shares for registration of transfer the Corporation may
treat the registered owner of such shares as the person exclusively
entitled to vote, to receive notifications and otherwise to have and
exercise all the rights and power of an owner. Where a certificate for
shares is presented to the Corporation with a request to register for
transfer, the Corporation shall not be liable to the owner or any other
person suffering loss as a result of such registration of transfer if (a)
there were on or with the certificate the necessary endorsements, and (b)
the Corporation had no duty to inquire into adverse claims or has
discharged any such duty. The Corporation may require reasonable
assurance that such endorsements are genuine and effective and compliance
with such other regulations as may be prescribed by or under the authority
of the Board of Directors.
6.05. Restrictions on Transfer. The face or reverse side of
each certificate representing shares shall bear a conspicuous notation of
any restriction imposed by the Corporation upon the transfer of such
shares.
6.06. Lost, Destroyed or Stolen Certificates. Where the owner
claims that certificates for shares have been lost, destroyed or
wrongfully taken, a new certificate shall be issued in place thereof if
the owner (a) so requests before the Corporation has notice that such
shares have been acquired by a bona fide purchaser, (b) files with the
Corporation a sufficient indemnity bond if required by the Board of
Directors or any principal officer, and (c) satisfies such other
reasonable requirements as may be prescribed by or under the authority of
the Board of Directors.
6.07. Consideration for Shares. The Board of Directors may
authorize shares to be issued for consideration consisting of any tangible
or intangible property or benefit to the Corporation, including cash,
promissory notes, services performed, contracts for services to be
performed or other securities of the Corporation. Before the Corporation
issues shares, the Board of Directors shall determine that the
consideration received or to be received for the shares to be issued is
adequate. The determination of the Board of Directors is conclusive
insofar as the adequacy of consideration for the issuance of shares
relates to whether the shares are validly issued, fully paid and
nonassessable. The Corporation may place in escrow shares issued in whole
or in part for a contract for future services or benefits, a promissory
note, or otherwise for property to be issued in the future, or make other
arrangements to restrict the transfer of the shares, and may credit
distributions in respect of the shares against their purchase price, until
the services are performed, the benefits or property are received or the
promissory note is paid. If the services are not performed, the benefits
or property are not received or the promissory note is not paid, the
Corporation may cancel, in whole or in part, the shares escrowed or
restricted and the distributions credited.
6.08. Stock Regulations. The Board of Directors shall have the
power and authority to make all such further rules and regulations not
inconsistent with law as it may deem expedient concerning the issue,
transfer and registration of shares of the Corporation.
ARTICLE VII. TAXABLE YEAR
7.01. Taxable Year. The taxable year of the Corporation shall
commence on January 1 and end on December 31 of each year.
ARTICLE VIII. SEAL
8.01. Corporate Seal. The corporation shall not have a
corporate seal, and all formal corporate documents shall carry the
designation "No Seal" along with the signatures of the officers.
ARTICLE IX. INDEMNIFICATION
9.01. Provision of Indemnification. The Corporation shall, to
the fullest extent permitted or required by Sections 180.0850 to 180.0859,
inclusive, of the Wisconsin Business Corporation Law, including any
amendments thereto (but in the case of any such amendment, only to the
extent such amendment permits or requires the Corporation to provide
broader indemnification rights than prior to such amendment), indemnify
its Directors and Officers against any and all Liabilities, and advance
any and all reasonable Expenses, incurred thereby in any Proceeding to
which any such Director of Officer is a Party because he or she is or was
a Director or Officer of the Corporation. The Corporation shall also
indemnify an employee who is not a Director or Officer, to the extent that
the employee has been successful on the merits or otherwise in defense of
a Proceeding, for all Expenses incurred in the Proceeding if the employee
was a Party because he or she is or was an employee of the Corporation.
The rights to indemnification granted hereunder shall not be deemed
exclusive of any other rights to indemnification against Liabilities or
the advancement of Expenses which a Director, Officer or employee may be
entitled under any written agreement, Board resolution, vote of
shareholders, the Wisconsin Business Corporation Law or otherwise. The
Corporation may, but shall not be required to, supplement the foregoing
rights to indemnification against Liabilities and advancement of Expenses
under this Section 9.01 by the purchase of insurance on behalf of any one
or more of such Directors, Officers or employees, whether or not the
Corporation would be obligated to indemnify or advance Expenses to such
Director, Officer or employee under this Section 9.01. All capitalized
terms used in this Article IX and not otherwise defined herein shall have
the meaning set forth in Section 180.0850 of the Wisconsin Business
Corporation Law.
ARTICLE X. AMENDMENTS
10.01. By Shareholders. These Bylaws may be amended or
repealed and new Bylaws may be adopted by the shareholders at any annual
or special meeting of the shareholders at which a quorum is in attendance.
10.02. By Directors. Except as otherwise provided by the
Wisconsin Business Corporation Law or the Articles of Incorporation, these
Bylaws may also be amended or repealed and new Bylaws may be adopted by
the Board of Directors by affirmative vote of a majority of the number of
directors present at any meeting at which a quorum is in attendance;
provided, however, that the shareholders in adopting, amending or
repealing a particular Bylaw may provide therein that the Board of
Directors may not amend, repeal or readopt that Bylaw.
10.03. Implied Amendments. Any action taken or authorized by
the shareholders or by the Board of Directors which would be inconsistent
with the Bylaws then in effect but which is taken or authorized by
affirmative vote of not less than the number of shares or the number of
directors required to amend the Bylaws so that the Bylaws would be
consistent with such action shall be given the same effect as though the
Bylaws had been temporarily amended or suspended so far, but only so far,
as is necessary to permit the specific action so taken or authorized.
UNANIMOUS CONSENT OF DIRECTORS
IN LIEU OF AN ORGANIZATIONAL MEETING
The undersigned, being all of the initial Directors named in the
Articles of Incorporation of Wilderness Development Corporation, a
Wisconsin corporation (the "Corporation"), do hereby adopt the following
resolutions by written consent in lieu of an initial meeting of the Board
of Directors pursuant to Section 180.0821 of the Wisconsin Statutes, such
action to have the same effect as if taken at a duly constituted meeting
of Directors held on the 25th day of July, 1996.
RESOLVED, that any and all notice to take any action in adopting
the following resolutions is hereby waived by the undersigned pursuant to
Section 180.0823 of the Wisconsin Statutes.
RESOLVED, that the Articles of and Certificate of Incorporation,
as attached hereto as Exhibit A, are hereby approved and ratified and that
all actions of any incorporator, shareholder, legal counsel and the
individual attorneys and accountants working for such parties in
connection with the organization and incorporation of the Corporation are
hereby and in all respects ratified, approved and confirmed.
RESOLVED, that the Bylaws, attached hereto as Exhibit B, are
hereby approved and adopted as the Bylaws of the Corporation.
RESOLVED, that the Stock Purchase Agreement, attached hereto as
Exhibit C, is hereby approved and ratified and, upon payment of the full
purchase price thereof, the proper officers of the Corporation are hereby
authorized and directed to execute and issue certificates for the shares
of the Corporation's common stock so purchased, which shares shall be
deemed fully paid and non-assessable by the Corporation (except as
otherwise provided for in Section 180.0622(2)(b) of the Wisconsin
Statutes).
RESOLVED, that the form of the Common Stock certificate,
attached hereto as Exhibit D, is hereby approved and adopted for use by
the Corporation.
RESOLVED, that the Corporation shall not have a corporate seal
and formal corporate documents may carry the designation "NO SEAL" along
with the signature of the officers.
RESOLVED, that pursuant to Section 180.0840(3), Wis. Stats., the
following individuals are hereby elected to the offices set forth
immediately preceding their names, to serve until their respective
successors are duly elected:
President - Thomas J. Lucke
Vice-President - S. Peter Helland, Jr.
Treasurer - Thomas J. Lucke
Secretary - S. Peter Helland, Jr.
RESOLVED, that the Treasurer is hereby authorized and directed
on behalf of the Corporation to pay any and all legal and other expenses
incurred in connection with the organization and incorporation of the
Corporation.
RESOLVED, that the Board of Directors, having determined that
the Corporation has complied with the requirements of Section 1244 of the
Internal Revenue Code of 1986, as amended, does hereby declare its
intention that the Corporation's common stock be deemed "Section 1244
stock" thereby enabling shareholders who are individuals and who purchase
their stock directly from the Corporation to obtain ordinary loss
treatment for losses realized upon the sale or worthlessness of their
stock.
RESOLVED, that the President is hereby authorized on behalf of
the Corporation to open such bank checking accounts as he in his
discretion shall deem necessary or convenient to the conduct of the
affairs of the Corporation; the authorized signer or signers of checks or
withdrawal orders shall be any person whose name and signature shall have
been certified to such bank from time to time by the President or his
designee, and any such bank shall be fully protected in relying upon any
such certification until it shall have received written notice of a change
in such signing authority.
RESOLVED, that if such depository bank shall require a
depository resolution in any form different from, but generally consistent
with, the foregoing, such other depository resolution shall be deemed to
have been fully approved and adopted hereby and may be so certified by the
President or his designee, whenever approved by such person, and a copy
thereof shall be attached hereto as Exhibit E.
RESOLVED, that the taxable year of the Corporation shall end on
the 31st day of December each year.
RESOLVED, that the Corporation hereby elects under Section
1372(a) of the Internal Revenue Code to be treated as an "electing small
business corporation" for income tax purposes to permit the undistributed
taxable income of the Corporation to be taxed directly to the shareholders
rather than to the Corporation itself; and the Board of Directors hereby
recommends to the shareholders of the Corporation that they execute and
consent to, and authorizes and directs the proper officers of the
Corporation to complete, execute and file at such time as they deem
appropriate an Election by Small Business Corporation on Form 2553 (a copy
of which is attached hereto as Exhibit F).
RESOLVED, that the President of the Corporation be, and hereby
is, authorized and directed in its name and on its behalf, to do and
perform any and all further things and acts, and to execute and deliver
any and all further instruments, certificates and documents which they
shall determine to be necessary, appropriate or desirable in order to
effectuate the intendment of the foregoing resolutions, or any of them,
any such determination to be conclusively evidenced by the doing or
performing of any such act or thing or the execution and delivery of any
such instrument, certificate or document.
IN WITNESS WHEREOF, this consent has been executed by the
undersigned and is effective as of the aforementioned date to be filed as
part of the minutes of the Corporation.
___________________________________
Thomas J. Lucke
Director
___________________________________
S. Peter Helland, Jr.
Director
MANAGEMENT AND USE AGREEMENT
AGREEMENT made this ___ day of ____________, 1997 between
WILDERNESS HOTEL CONDOMINIUM ASSOCIATION, INC. (the "Association") and
WILDERNESS HOTEL & RESORT, INC. (the "Manager").
RECITALS
WHEREAS, Association, a non-profit corporation of which all unit
owners of the Wilderness Hotel Condominium, a hotel condominium (the
"Condominium") are members, and Manager desire to enter into an agreement
under which Manager agrees to (a) manage the Condominium's affairs, (b)
act as manager for those condominium unit owners (the "Unit Owner" or
"Owner") who desire to rent Owner's unit (the "Unit") and engage Manager
to locate persons desirous of occupying Owner's Units ("Occupants") and to
charge for such occupancy, and (c) rent and manage certain Common Elements
of the Condominium in order to provide services to Unit Owners; and
WHEREAS, the Association believes that an agreement for
management between the Manager and the individual Unit Owners may lead to
confusion and disparity and both parties are willing to abide by the terms
of a management agreement between the Association and the Manager;
NOW, THEREFORE, in consideration of the mutual covenants herein,
the receipt and sufficiency of which are hereby acknowledged, the parties
agree as follows:
A. MANAGEMENT AGREEMENT
1. Manager's Appointment by Association. Association hereby
appoints Manager and Manager hereby accepts appointment, on the terms and
conditions hereinafter provided, as managing agent of the Condominium
known as The Wilderness Hotel Condominium, a hotel condominium, with the
duties specified in paragraph 3 below. Manager fully understands that the
function of the Board of Directors of the Condominium (the "Board") is the
operation and management of the Condominium; and Manager agrees,
notwithstanding the authority given to Manager in this Agreement, to
confer fully and freely with the Board in the performance of its duties as
herein set forth and to attend meetings of Unit Owners and the Board at
any reasonable time or times requested by the Board.
2. Compensation as Manager. Except as expressly set forth
herein, the sole compensation which Manager shall be entitled to receive
from Association for services performed for Association under this
Agreement shall be a fee computed and payable monthly in an amount
equivalent to one hundred and twenty-five percent (125%) of the actual
cost to perform the management duties pursuant to the agreement.
3. Manager's Duties to Association. Manager agrees to manage,
operate and maintain the Condominium according to standards consistent
with the overall plan of the Board and agrees to perform the management
function and do all things normally expected of management in a hotel
condominium project, including but not limited to the following:
a. Manager shall clean and perform ordinary maintenance
of the Condominium's Common Elements. Manager's duties hereunder
shall include, but not be limited to, maintenance and repair of the
entryways, meetings rooms and other areas constituting Common
Elements within buildings.
b. Manager shall manage, operate and maintain any
personal property acquired by the Association for the use and benefit
of the Unit Owners and other occupants of the Condominium including,
if the Board so determines, charging a reasonable price for the use
and consumption thereof (the "Personal Property").
c. Manager shall use its best efforts to collect all
assessments and special assessments as determined by the Board and
any revenue from the use and consumption of the Personal Property.
Such collections shall be deposited into the account established
pursuant to paragraph 3(l) below. Manager shall pay, out of such
account, all the costs associated with management of the Condominium
and the Personal Property and cleaning, maintenance, repair,
replacement and alteration of the Common Elements and Limited Common
Elements that are the responsibility of Association hereunder, that
are authorized by the Board, or that are listed in the annual budget.
d. Manager shall hire in its own name all managerial and
other personnel it deems appropriate in order to perform its duties
hereunder. Compensation for the services of such employees shall be
the responsibility of Manager. In lieu thereof, Manager may contract
in its own name and at its own expense for any such services.
Manager shall also provide, at its own expense, all supplies and
equipment necessary or appropriate to perform such services. Manager
may arrange, but the Association shall pay, for utility services for
which Association (as opposed to the Unit Owners) is responsible
under the Declaration and By-Laws.
e. Except in the event of an emergency, Manager shall
notify the Board of the need to repair, replace, alter and add to
Common Elements, when such expenses exceed $1,000. (Any repair,
replacement, alteration or addition costing less than $1,000 shall be
deemed ordinary maintenance.) The Board may designate the Manager to
perform the repairs, replacements, alterations and additions in an
emergency, and Manager may undertake such emergency repairs without
consulting the Board. Manager shall make such repairs, replacements,
alterations and additions with its own employees, by contracting with
third parties in the name of Association, or by a combination of
both. Association shall be responsible for the payment of all
amounts necessary to effect such repairs, replacements, alterations
and additions. To the extent that the work is performed by employees
of Manager, Association shall compensate Manager by paying it 125% of
the materials, wages, or salaries of the employees performing such
work for the actual time that they performed such work, which amounts
Association shall pay promptly after receipt of an invoice from
Manager. Manager shall keep accurate records of any such work.
f. Manager shall keep detailed accurate records in
chronological order, of the receipts and expenditures affecting the
Common Elements and itemizing the maintenance and repair expense of
the Common Elements and any other expenses incurred. Records and
vouchers authorizing the payments rendered shall be available for
examination by the Unit Owners at convenient hours of working days.
Manager shall, as a common expense, furnish the Association with a
copy of an annual compilation of such books and records.
g. Manager will prepare at its own expense, with the
assistance of an accountant, if need be, an operating budget setting
forth an itemized statement of the anticipated receipts and
disbursements for the new fiscal year based upon the then current
schedule of monthly assessments, and taking into account the general
condition of the Condominium. Each such budget shall be submitted to
the Board in final draft at least 30 days prior to the commencement
of the annual period for which it has been made. The budget shall
serve as a supporting document for the schedule of monthly
assessments proposed for the new fiscal year.
h. Manager shall not expend more than the total amount
budgeted in any fiscal year of the Association, nor exceed by more
than 5% the amount budgeted for any individual item in any such
fiscal year, without first obtaining the prior written consent of the
Board, except in the event of an emergency.
i. Manger shall maintain businesslike relations with the
Unit Owners whose service requests shall be received, considered and
recorded in systematic fashion in order to show the action taken with
respect to each. Complaints of a serious nature shall, after
thorough investigation, be reported to the Board with appropriate
recommendations as part of a continuing program to resolve such
complaints and to provide for the full discharge of responsibilities
of the Manager and Unit Owners with reference thereto.
j. Manager shall cause to be placed and kept in force all
of those policies of insurance which are required by Article XI of
the Declaration of the Condominium, or authorized by the Board.
Association shall pay all premium costs, and assess the individual
Owners prorated share thereof. All of the various types of insurance
shall be placed with such companies, in such amounts, and with such
beneficial interests appearing therein as shall be acceptable to the
Board. Manager may have itself, the Declarant and appropriate
affiliates listed as additional insureds. Manager shall promptly
investigate and make a full written report as to all accidents or
claims for damage covered by any such policy of insurance and shall
cooperate and make any and all reports required by any insurance
company in connection therewith.
k. Manager shall, to the best of its ability, arrange for
whatever additional services are requested by Unit Owners beyond the
scope of regular condominium services. These extra services will be
billed to the Unit Owner who requests the services on a time and
material basis.
l. Manager shall establish and maintain a separate bank
account for the deposit of the moneys of the Condominium with
authority to draw thereon for any payments to be made by Manager to
discharge any liabilities or obligations of Association incurred
pursuant to this Agreement, including the payment of the management
fee.
B. USE AGREEMENT
4. Identification of Property To Be Used. Subject to the
conditions hereinafter expressed, Association hereby grants use rights to
Manager for the following property (collectively "Use Property"):
a. that part of the Condominium designated "meeting
rooms" on the Plat of Condominium for the Wilderness
Hotel Condominium ("Meeting Rooms");
b. that part of the Condominium designated "lockerrooms
and restrooms" on the Plat of the Condominium
(collectively "Lockerrooms");
c. the telephone wiring system serving the Common
Elements, each Unit and any other outlet on the
Condominium ("Telephone System");
d. that part of the Common Elements as may be mutually
agreed between Association and Manager as a location
for video, pinball and other games ("Game Room"); and
e. that part of the Common Elements as may be mutually
agreed between Association and Manager as a location
for food and drink vending machines or other means of
selling food and drink ("Vending Area").
5. Consideration. The obligations of the Manager pursuant to
this Agreement shall be the consideration for the Manager's use of the Use
Property. The parties hereto agree and this consideration is sufficient
and adequate.
6. Use of Property. The Meeting Rooms shall be available for
use of Owners and the Occupants of the Condominium and Wilderness Hotel &
Resort for meetings and gatherings. The showers shall be available for
use of the Owners and the Occupants of the Condominium and Wilderness
Hotel & Resort. Manager shall use the Game Room and Vending Area only for
the installation of Games to be played and Vending Equipment to be used by
Occupants of the Condominium or the Wilderness & Resort.
7. Use of Telephone Equipment. The Association agrees to
allow the Manager to install telephone hardware equipment in each of the
Units. The Manager's telephone hardware equipment shall be the sole and
exclusive telephone hardware equipment in all of the Units. Manager
agrees to operate the telephone hardware equipment in conjunction with the
telephone operations at the Wilderness Hotel & Resort. All income from
the telephone operations shall be paid to the Manager.
8. Covenant of Quiet Enjoyment. Manager, upon performing all
the other terms of this Agreement, shall quietly have and enjoy the
Property during the term of this Agreement without hindrance or
interference by anyone claiming by or through Association or any Unit
Owner.
9. Maintenance of the Property. Manager shall, at its own
expense, clean and perform ordinary maintenance on the Property in order
to maintain it in good and tenantable condition. Association shall be
responsible for all structural repairs and replacements to the Property,
including but not limited to the replacement of the Telephone System once
it becomes obsolete or requires replacement for any other reason. Manager
shall perform all cleaning, maintenance, repairs and replacement to the
Meeting Rooms, Lockerrooms, Games, Vending Equipment and any personal
property which it places in the Common Elements. Each party shall perform
those cleaning, maintenance, repairs and replacements for which it is
responsible promptly, as and when necessary.
10. Taxes. Association or the Unit Owners of the Condominium
shall pay all real and personal property taxes on the Common Areas and the
Property and personalty owned by the Association. Manager shall pay all
personal property taxes on the Equipment and the personal property owned
by Manager and placed in the Common Elements. If the governmental
authorities with taxing jurisdiction do not separate the taxes on the
personal property owned by or leased to Manager from the taxes on the
personal property of the Association, the parties shall agree on a fair
and reasonable means of allocating such taxes based on the relative values
of such personal property.
11. Utilities. Association shall pay all electric, gas, water,
sewer and other public utility charges attributable to the Property and
the personal property thereon during the term of this Agreement at the
time such charges become due and payable. If such charges are not
separately metered from charges payable by Wilderness Hotel & Resort
and/or Unit Owners, the parties shall allocate such charges on a fair and
reasonable basis.
12. Charges to Unit Owners, Occupants and Guests. Manager may
charge Unit Owners and Occupants for each telephone call that they or
their guests place from the Unit.
13. Insurance. As set forth in paragraph 3.j above, Manager
shall cause to be placed and kept in force certain policies of insurance
on behalf of Association and Owners, including a policy of fire and
extended hazards insurance protecting all of the Property. Manager shall,
at its own expense, during the terms hereof, maintain fire and extended
hazards insurance protecting the Manager's personal property located on
the Property. Manager shall also secure, and the Association shall pay
for a policy of public liability and property damage insurance with
respect to all of its obligations under this Agreement, including its
operations with respect to and upon the Property, protecting Manager
against such liability. Any policy taken out by Manager shall have limits
of at least $3,000,000 for personal injury and $500,000 for property
damage.
14. Damage or Destruction. Except as limited below, if, during
the term of this Agreement, fire or other casualty shall so damage or
destroy any element of the Property that it is untenantable or unfit for
use, either Association or Manager may terminate this Agreement upon
thirty (30) days written notice to the other. Except as limited below, if
such damage does not render any of the elements of the Property
untenantable or unfit for use, Association or Manager may so terminate
this Agreement only if Association shall fail or refuse, within thirty
(30) days after such destruction, to agree in writing to restore the same
within ninety (90) days of such destruction.
15. Alterations, Improvements. Except as otherwise provided
herein, Manager shall not make any alterations or improvements to the
Property, except with the prior consent of Association and upon such terms
to which Association agrees.
16. Fixtures. Manager may install the Games, Vending Equipment
and any other machinery, equipment, apparatus and trade fixtures in the
Property (including but not limited to the Equipment) without obtaining
the prior written consent of Association. Manager shall have the right to
remove from the Property all such Games, Vending Equipment, machinery,
apparatus, equipment and fixtures prior to the expiration of the
Agreement, whether or not they are attached to the real estate, and
Manager shall restore and repair said damage to the Property caused by
such removal, if so requested by Association.
17. Right of Entry. Association and the Unit Owners may enter
the Common Elements, Game Room and Vending Area at any time at which they
are open and may use the Telephone System at any time during normal
business hours. Manager shall establish and post the times at which the
Common Elements, Game Room and Vending Area shall be open.
18. Signs. Manager shall have the right to erect
identification signs throughout the Property.
19. Compliance With Applicable Laws. Manager, at its sole
expense, shall comply with all laws, orders, and regulations of federal,
state and municipal authorities, and with any lawful direction of any
public office, which shall impose any duty upon Association or Manager
with respect to Manager's activities on the Property. Manager, at its
sole expense, shall obtain all required licensees or permits for the
conduct of its business of the Property, and Association, when necessary,
will join with Manager in applying for all such permits or licenses.
20. Assignment and Sublease. Manager may assign, mortgage, or
encumber its rights under this Lease, or sublet or permit the Property or
any part thereof to be used by others.
21. Default. Neither Manager nor Association shall be deemed
to have defaulted or committed a breach of any covenant under this Lease
unless it has received written notice of such default or breach and failed
to remedy such default or breach within thirty (30) days of receipt of
such notice. Any dispute arising from an alleged breach of any other
covenant by either party shall be resolved by arbitration, as set forth
below.
C. MISCELLANEOUS
22. Use of Name of Condominium. To the extent that the
Association has the right to use the name of the Condominium, it consents
to Manager's non-exclusive use of the name of the Condominium in any
advertisements that it places for the use of the occupancy Units.
23. Term. The initial term of this Agreement shall commence on
the day first written above and continue for an initial twenty (20) year
term. Thereafter, it shall automatically renew for like twenty (20) year
terms, unless otherwise terminated as provided herein.
24. Declaration and By-Laws. Manager shall make reasonable
efforts to fulfill its duties under this Agreement in conformity with the
provisions of the Declaration and By-Laws of the Condominium.
25. Definitions. Any terms not defined herein shall have the
meaning set forth in the Declaration.
26. Termination. This Agreement may be terminated at any time
by Manager upon sixty (60) days written notice. Upon assignment by
Manager, this contract may be terminated by the Association upon sixty
(60) days written notice. Subsequent to the initial election of the
Association officers by the Unit Owners (other than Agent or Wilderness
Development Corporation), either party may terminate this Agreement at any
time by giving the other party at least ninety (90) days written notice of
its intent to terminate this Agreement. Upon the initial approval of this
Agreement by the Association after the initial election of the Association
officers by the Unit Owners (other than Agent or Wilderness Development
Corporation) termination of this Agreement by the Association may be
effectuated by the Association only upon: (a) Manager's default and
written notice to Manager of such default and Manager's right to cure any
alleged default within thirty (30) days of Manager's receipt of such
written notice; or (b) at least ninety (90) days prior to the expiration
of any term, written notice to Manager of the Association's intent not to
renew this Agreement for an additional twenty (20) year term, or (c) upon
mutual written agreement between the Association and Manager.
27. Arbitration. Except as expressly provided herein, any
controversy between the Manager and Association arising out of or relating
to this Agreement or the breach hereof shall be settled by arbitration.
Either party may notify the other that it intends to ask for arbitration
at any time. If the parties cannot resolve their disagreement within
twenty (20) days of such notification or cannot mutually agree on a third
party to arbitrate their dispute, either party may request the Chief Judge
of the Sauk County Circuit Court, or if there is none, the Judge of Branch
1, to designate such arbitrator. Any such arbitration shall be conducted
in accordance with the procedure set forth in Chapter 788 of the Wisconsin
Statutes or any successor thereto. The parties shall divide equally the
fees and expenses of the arbitrator. The arbitrator shall have the power
to award the victorious party part or all of its costs, including
reasonable attorneys fees, if the arbitrator believes the other party was
acting in bad faith in failing to reach agreement prior to or during
arbitration.
28. Entire Agreement. This Agreement shall constitute the
entire agreement between the contracting parties, and no alleged prior
agreements, either oral or in writing, shall be valid and enforceable.
29. Captions. The captions in this Agreement are for the
convenience of the parties only, and shall not be used to construe the
meaning of any provision.
30. Enforceability. If any provision of this Agreement or any
specific application shall be invalid or unenforceable, the remainder of
this Agreement, or the application of the provisions in other
circumstances, shall not be affected, and each provision shall be valid
and enforceable to the fullest extend permitted by law.
31. Notices. Any notice required to be given to Association or
Manager shall be sent or personally delivered to the following addresses
respectively:
To Association:
Wilderness Condominium Association, Inc.
511 East Adams Street
Wisconsin Dells, WI 53965
To Manager:
Wilderness Hotel & Resort, Inc.
511 East Adams Street
Wisconsin Dells, WI 53965
With a Copy to:
Attorney Timothy C. Sweeney
and Attorney Patrick S. Sweeney
Sweeney & Sweeney, S.C.
440 Science Drive, 4th Floor
Madison, WI 53711
Either party shall notify the other of a change of address.
32. Successors and Assigns. This Agreement shall inure to the
benefit of and bind the parties, and their respective successors and
assigns.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above written.
ASSOCIATION:
WILDERNESS HOTEL CONDOMINIUM ASSOCIATION, INC.
BY: WILDERNESS HOTEL & RESORT, INC., ONE OF ITS DECLARANTS
BY:______________________________________
Thomas J. Lucke, President
-NO CORPORATE SEAL-
ATTEST:___________________________________
S. Peter Helland, Jr., Secretary
MANAGER:
WILDERNESS HOTEL & RESORT, INC.
BY:_______________________________________
Thomas J. Lucke, President
-NO CORPORATE SEAL-
ATTEST:___________________________________
S. Peter Helland, Jr., Secretary
ACCESS/USE AGREEMENT
THIS ACCESS/USE AGREEMENT, made this ___ day of ____________,
1997 between and among WILDERNESS HOTEL & RESORT, INC., a Wisconsin
corporation ("WH&RI"), WILD GOLF, INC., a Wisconsin corporation ("Wild
Golf"), THOMAS J. LUCKE AND TERRI L. LUCKE of Wisconsin Dells, Wisconsin
("Luckes") (WH&RI, WILD GOLF and LUCKES, herein collectively referred to
as "Grantors") and the WILDERNESS HOTEL CONDOMINIUM ASSOCIATION, INC., a
Wisconsin non-stock corporation ("Association") on behalf of all
Association members who are hotel condominium unit owners ("Owners") in
the Wilderness Hotel Condominium, a hotel condominium ("Condominium").
RECITALS
WHEREAS, WH&RI is the owner and operator of the Wilderness Hotel
& Resort located on a parcel of land at 511 East Adams Street, Wisconsin
Dells, Sauk County, Wisconsin ("Wilderness Hotel & Resort"); and
WHEREAS, the Luckes are owners of the land upon which the
Wilderness Hotel & Resort is located and have, as Lessors, entered into a
long-term land lease of the Wilderness Hotel & Resort land with WH&RI, as
Lessee; and
WHEREAS, Wild Golf is the owner and operator of the golf course
which is adjacent to and operated in conjunction with the Wilderness Hotel
& Resort; and
WHEREAS, the Association, on behalf of present and future Owners
of the Condominium, by virtue of an Owner's purchase of a hotel
Condominium unit (the "Unit") desires to secure for the Owners certain
access and use rights to the Wilderness Hotel & Resort and its amenities
and the Grantors are willing to extend certain access and use rights.
NOW, THEREFORE, in consideration of the mutual covenants herein,
and for other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
1. Wilderness Hotel & Resort Access Grant. Subject to the
terms and conditions as set forth in this Agreement, Grantors hereby grant
to Owners access to and use of the recreational and other facilities in
the Wilderness Hotel & Resort, including the Wilderness Hotel & Resort's
indoor/outdoor swimming pools, water games, slides, lobbies, snack bars,
gift shop, lockerrooms and public restrooms (the "Facilities") on the same
basis and at the same cost (if any) that the Facilities are utilized by
paying patrons of the Wilderness Hotel & Resort. This access and use of
the Facilities are intended for the benefit of the Owners and the
transient hotel rental tenants (the "Occupants") and guests of an Owner's
Unit (the "Guests"), subject to rules and regulations regarding the
Facilities.
2. Golf Benefits. Wild Golf hereby grants to Owners the right
to purchase green fees at the Wilderness Golf Course (the "Golf Facility")
at 50% of the green fee rate applicable at time of play (the "Golf
Benefits"). This benefit shall apply only to a maximum of two Owners of
Units of record in the Condominium as shown on the books of the
Association. Notwithstanding anything contained in this Agreement to the
contrary, the benefit related to the Golf Facility shall not be available
to any guest of the Owner and/or any person renting the Unit.
3. Conditions Precedent. Conditions precedent to the access,
use, benefits and rights as granted in paragraphs 1 and 2 above
("Privileges") shall be:
a. Ownership. A person must be an Owner of a Unit in the
Condominium and a member of the Association, as provided in paragraph
1 above, an Occupant of Owner's Unit or a Guest of Owner in the Unit.
The Occupants and Guests of a Unit shall not, however, be entitled to
the Golf Benefits as described in Paragraph 2 above.
b. Good Standing. The Owner must be in good standing
with the Association and not in default of any Association dues,
assessments, or in default of any of the terms, conditions or
provisions as provided in the Association's Articles of
Incorporation, By-Laws, Rules and Regulations and/or the Condominium
Declaration.
c. Management and Lease Agreement and Rental Pooling and
Agency Agreements. The Management and Lease Agreement and the Rental
Pooling and Agency Agreement (as described herein), or any extension,
renewal or amendment thereto, between the Owners and/or the
Association and Wilderness Development Corporation and Wilderness
Hotel & Resort, Inc., respectively, (or its successors and/or
assigns) originally dated the ___ day of _______________, 1997, in
respect to the Management and Lease Agreement and at various dates,
in respect to the Rental Pooling and Agency Agreement, must be in
full force and effect, unless cancellation thereof was solely
attributable to Wilderness Hotel & Resort, Inc. and/or Wilderness
Development Corporation or their successors' and/or assigns' election
and option.
4. Term. The term of this Agreement shall commence as of the
day first written above and shall continue for an initial twenty (20) year
term. Thereafter, this Agreement shall automatically renew for like
twenty (20) year terms, unless otherwise terminated as provided herein.
5. Termination. This Agreement shall terminate as to the
Association and all Owners, or to individual Owners, as the case may be,
upon thirty (30) days written notice to the Owner or Owners that any of
the conditions precedent as provided in paragraph 3 above exist, and the
failure on the part of an Owner or Owners to cure the condition precedent
within said thirty (30) day notice period. Upon the initial approval of
this Agreement by the Association, after the initial election of the
Association officers by the Unit Owners (other than Grantors or Wilderness
Development Corporation), termination of this Agreement by the Association
may be effectuated by the Association, providing Grantors (their
successors and/or assigns) give at least ninety (90) days written notice
of the Association's intent to terminate this Agreement.
6. Use Fee. The Owners, by and through the Association, shall
pay to the Grantors, their successors and/or assigns, a fee assessed and
payable on a monthly basis which shall be in an amount reasonably related
to the cost of operating, maintaining, repairing and funding replacement
reserves for the Facilities and the Golf Facilities.
7. Damage or Destruction. If, during the term of this
Agreement, fire or other casualty shall so damage or destroy any element
of the Wilderness Hotel & Resort that it is untenantable, or unfit for
use, the rights granted hereunder shall be suspended until such time as
Grantors elect to and complete actions necessary to make the Wilderness
Hotel & Resort tenantable and fit for use. This Agreement shall impose no
duty upon the Grantors to restore the Wilderness Hotel & Resort to its
pre-destruction condition. This Agreement shall terminate as to any
Facilities not rebuilt because of fire, casualty, damage or destruction to
the Wilderness Hotel & Resort or any portion thereof.
8. Management and Control. Grantors shall retain full
management and control of the Wilderness Hotel & Resort and the Facilities
and Golf Facility, and this Agreement shall impose no further duty upon
Grantors in addition to the duties owned by Grantors to its Occupants and
Guests.
9. Compliance With Applicable Laws and Rules. Owners shall
comply with all laws, orders and regulations of federal, state and
municipal authorities, and with any lawful direction of any public
officer, and shall follow such rules and regulations as set forth by the
Grantors and any direction of Grantors' employees or agents with respect
to the Owners' activities at the Wilderness Hotel & Resort and its
Facilities and Golf Facilities.
10. Assignment. This Agreement may be assigned by Grantors to
any of their successors in interest. Any such assignment shall relieve
Grantors from any and all liabilities and duties hereunder and the same
shall be assumed by Grantors' successors and/or assigns.
11. Arbitration. Except as expressly provided herein, any
controversy between the parties arising out of or relating to this
Agreement or the breach hereof shall be settled by arbitration. Either
party may notify the other that it intends to ask for arbitration at any
time. If the parties cannot resolve their disagreement within twenty (20)
days of such notification or cannot mutually agree on a third party to
arbitrate their dispute, either party may request the Chief Judge of the
Sauk County Circuit Court, or if there is none, the Judge of Branch 1, to
designate such arbitrator. Any such arbitration shall be conducted in
accordance with the procedure set forth in Chapter 788 of the Wisconsin
Statutes or any successor thereto. The parties shall divide equally the
fees and expenses of the arbitrator. The arbitrator shall have the power
to award the victorious party part or all of its costs, including
reasonable attorneys fees, if the arbitrator believes the other party was
acting in bad faith in failing to reach agreement prior to or during
arbitration.
12. Entire Agreement. This Agreement shall constitute the
entire agreement between the contracting parties, and no alleged prior
agreements, either oral or in writing, shall be valid and enforceable.
13. Captions. The captions in this Agreement are for the
convenience of the parties only, and shall not be used to construe the
meaning of any provision.
14. Enforceability. If any provision of this Agreement or any
specific application shall be invalid or unenforceable, the remainder of
this Agreement, or the application of the provisions in other
circumstances, shall not be affected, and each provision shall be valid
and enforceable to the fullest extend permitted by law.
15. Notices. Any notice required to be given to Association or
Manager shall be sent or personally delivered to the following addresses
respectively:
To Grantors:
Wilderness Hotel & Resort, Inc.
511 East Adams Street
Wisconsin Dells, WI 53965
Wild Golf, Inc.
511 East Adams Street
Wisconsin Dells, WI 53965
Thomas J. Lucke and Terri L. Lucke
511 East Adams Street
Wisconsin Dells, WI 53965
With a copy to:
Attorney Timothy C. Sweeney and
Attorney Patrick S. Sweeney
Sweeney & Sweeney, S.C.
440 Science Drive, 4th Floor
Madison, WI 53711
To Association:
Wilderness Hotel Condominium Association, Inc.
511 East Adams Street
Wisconsin Dells, WI 53965
To Owners:
Last address as shown on the books of the Association.
All parties shall notify the others of a change of address.
16. Successors and Assigns. This Agreement shall inure to the
benefit of and bind the parties, and their respective successors and
assigns.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above written.
GRANTORS:
WILDERNESS HOTEL & RESORT, INC.
BY:______________________________________
Thomas J. Lucke, President
-NO CORPORATE SEAL-
ATTEST:___________________________________
S. Peter Helland, Jr., Secretary
WILD GOLF, INC.
BY:______________________________________
Thomas J. Lucke, President
-NO CORPORATE SEAL-
ATTEST:___________________________________
S. Peter Helland, Jr., Secretary
_________________________________________
Thomas J. Lucke
_________________________________________
Terri L. Lucke
ASSOCIATION:
WILDERNESS HOTEL CONDOMINIUM ASSOCIATION, INC.
BY:______________________________________
Thomas J. Lucke, President
-NO CORPORATE SEAL-
ATTEST:___________________________________
S. Peter Helland, Jr., Secretary
OWNERS:
________________________________
SWEENEY & SWEENEY, S.C.
Attorneys and Counselors
4th Floor
440 Science Drive
MADISON, WISCONSIN 53711
FACSIMILE (608) 238-8262
TELEPHONE (608) 238-4444
In Boca Raton, Florida:
750 S. Dixie Highway
Boca Raton, Florida 33432
Facsimile (561) 394-9086
Telephone (561) 394-9280
May 13, 1997
Wilderness Development Corporation
511 East Adams Street
Wisconsin Dells, WI 53965
Gentlemen:
You plan to offer for sale up to 133 hotel condominium units in
the Wilderness Resort Hotel (the "Units") pursuant to a registration
statement filed with the United States Securities and Exchange Commission,
dated May 6, 1997 (the "Registration Statement"). A condition to your
sale of each Unit will be that the prospective purchaser if he/she decides
to lease the Unit will to require to enter into a Rental Pooling and
Agency Agreement in the form of Exhibit 4-B to the Registration Statement
(the "RPA Agreement"). You have requested our opinion as to certain
federal income tax consequences of the organization and operation of the
Units under the RPA Agreements.
Our opinion is based upon the facts and representations set
forth in the Registration Statement, including the exhibits thereto, and
certain additional facts and representations you have furnished to us as
of the date hereof. Further, our opinion is based on the provisions of
statutes and regulations in effect as of the date hereof and on judicial
and administrative interpretations of such statutes and regulations which
have been published as of the date hereof.
Based upon the foregoing and subject to the conditions set forth
below, it is our opinion that:
1. The arrangement created by the RPA Agreements, in the
aggregate, will not create an association taxable as a corporation for
federal income tax purposes; and
2. The discussion in the Registration Statement under the
caption "Income Tax Information" is an accurate summary of the material
federal income tax consequences to the typical purchaser of a Unit.
Our opinion is subject to the condition that the Units and the
rental pool associated with the Units be operated in accordance with the
facts and representations set forth in the Registration Statement,
including the exhibits thereto, and those certain additional facts and
representations you have furnished to us as of the date hereof. Further,
our opinion may change as a result of changes to statutes and regulations
or as a result of additional judicial or administrative interpretations of
such statutes and regulations.
We hereby consent to the references to this opinion in the
Registration Statement and all amendments thereto. We further consent to
the use of this opinion as an exhibit to the Registration Statement.
Very truly yours,
SWEENEY & SWEENEY, S.C.
/s/ Patrick S. Sweeney
Patrick S. Sweeney
For the Firm
the WiLDERNESS LUXURY CONDOMINIUM SUITES
PHASE I & II
Phase I Phase II
Starting Sleeps # of # of
At Price Type Description Upto SQFT Units Units TOTAL
$114,900 A-1 Single Queen 6 729 8 10 18
Condo
$117,900 A Single Queen 6 729 10 10 20
Condo - Golf
& Poolviews
$128,900 B-1 Double Queen 6 939 4 5 9
Condo with
Loft
$131,900 B Double Queen 6 939 5 5 10
Condo with
Loft - with
views
$130,900 C-1 Large One 6 908 9 12 21
Bedroom Condo
$133,900 C Large One 6 908 7 12 19
Bedroom Condo
- with views
$145,900 D-1 Large Two 6 1184 4 6 10
Bedroom Condo
$148,900 D Large Two 6 1184 4 6 10
Bedroom Condo
- with views
$187,900 E Deluxe Two 6 1437 4 4 8
Bedroom Condo
- with views
$207,900 F Large Three 8 1824 2 2 4
Bedroom Condo
- with views
$182,900 G Super Deluxe 8 1304 2 0 2
Two Bedroom
Condo - with
views
$177,900 H Super Deluxe 8 1304 2 0 2
Two Bedroom
Condo - with
views
----- ----- -----
TOTALS 129,551 61 72 133
Note: Phase II Unit Purchase Prices will be an
additional $10,000.
A-1
B-1
C-1 Units that face parking and distant
golf views (west & north)
D-1
A
B
C
D
E Units that face pool and golf
(east & south)
F
G
H
<PAGE>
<TABLE>
<CAPTION>
PHASE I
PRICE
LIST
FIRST FLOOR SECOND FLOOR THIRD FLOOR
UNIT # TYPE PRICE UNIT # TYPE PRICE UNIT # TYPE PRICE
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1149 A-1 $114,900 2249 A-1 $114,900 3349 B-1 $128,900
1154 A $120,900 2250 G $182,900 3350 G $182,900
1151 C-1 $130,900 2251 C-1 $130,900 3351 D-1 $145,900
1156 C $136,900 2252 H $177,900 3352 H $177,900
1153 C-1 $130,900 2253 C-1 $130,900 3353 D-1 $145,900
1158 C $136,900 2254 A $117,900 3354 B $131,900
1155 A-1 $114,900 2255 A-1 $114,900 3355 B-1 $128,900
1160 A $120,900 2256 C $133,900 3356 D $148,900
1157 A-1 $114,900 2257 A-1 $114,900 3357 B-1 $128,900
1162 A $120,900 2258 C $133,900 3358 D $148,900
1159 C-1 $130,900 2259 C-1 $130,900 3359 D-1 $145,900
1164 C $136,900 2260 A $117,900 3360 B $131,900
1161 C-1 $130,900 2261 C-1 $130,900 3361 D-1 $145,900
1166 C $136,900 2262 A $117,900 3362 B $131,900
1163 A-1 $114,900 2263 A-1 $114,900 3363 B-1 $128,900
1168 A $120,900 2264 C $133,900 3364 D $148,900
1170 E $193,900 2266 C $133,900 3366 D $148,900
1172 E $193,900 2268 A $117,900 3368 B $131,900
1174 A $120,900 2270 E $187,900 3370 F $207,900
2272 E $187,900 3372 F $207,900
2274 A $117,900 3374 B $131,900
--------- --------- ---------
TOTAL $2,523,100 TOTAL $2,844,900 TOTAL $3,130,900
========= ========= =========
<CAPTION>
PHASE II
PRICE
LIST
FIRST FLOOR SECOND FLOOR THIRD FLOOR
UNIT # TYPE PRICE UNIT # TYPE PRICE UNIT # TYPE PRICE
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1165 C-1 $140,900 2265 C-1 $140,900 3365 D-1 $155,900
1167 C-1 $140,900 2267 C-1 $140,900 3367 D-1 $155,900
1169 A-1 $124,900 2269 A-1 $124,900 3369 B-1 $138,900
1171 A-1 $124,900 2271 A-1 $124,900 3371 B-1 $138,900
1173 C-1 $140,900 2273 C-1 $140,900 3373 D-1 $155,900
1175 C-1 $140,900 2275 C-1 $140,900 3375 D-1 $155,900
1176 C $146,900 2276 C $143,900 3376 D $158,900
1177 A-1 $124,900 2277 A-1 $124,900 3377 B-1 $138,900
1178 C $146,900 2278 C $143,900 3378 D $158,900
1179 A-1 $124,900 2279 A-1 $124,900 3379 B-1 $138,900
1180 A $130,900 2280 A $127,900 3380 B $141,900
1181 C-1 $140,900 2281 C-1 $140,900 3381 D-1 $155,900
1182 E $203,900 2282 E $197,900 3382 F $217,900
1183 C-1 $140,900 2283 C-1 $140,900 3383 D-1 $155,900
1184 E $203,900 2284 E $197,900 3384 F $217,900
1185 A-1 $124,900 2285 A-1 $124,900 3385 B-1 $138,900
1186 A $130,900 2286 A $127,900 3386 B $141,900
1188 C $146,900 2288 C $143,900 3388 D $158,900
1190 C $146,900 2290 C $143,900 3390 D $158,900
1192 A $130,900 2292 A $127,900 3392 B $141,900
1194 A $130,900 2294 A $127,900 3394 B $141,900
1196 C $146,900 2296 C $143,900 3396 D $158,900
1198 C $146,900 2298 C $143,900 3398 D $158,900
1200 A $130,900 2300 A $127,900 3400 B $141,900
--------- --------- ---------
TOTAL $3,413,600 TOTAL $3,368,600 TOTAL $3,728,600
========= ========= =========
</TABLE>
WiLDERNESS CONDOMINIUM ASSOCIATION
COMBINED PHASE I & II SCENARIO -&- PHASE I ONLY SCENARIO
133 Units 61 Units
Full Year Full Year
ROOM RENTALS $4,871,083 $2,256,306
MANAGEMENT FEES 35% $1,704,879 $789,707
NET TO OWNERS $3,166,204 $1,466,599
ASSOCIATION COST ANNUAL BUDGET
Full Year Full Year
EXPENSES:
Insurance (Building & Liability) $25,000 15,000
Directors/Officers Insurance $1,170 1,000
Electricity and Gas $106,400 50,000
Linens $15,000 15,000
Laundry $45,000 25,000
Permits & Licenses $3,000 2,000
Water & Sewer $30,000 15,000
Repairs & Maintenance/Replacement $25,000 10,000
Legal & Accounting $4,000 4,000
Supplies $65,000 35,000
Salaries - Association $2,500 2,500
Satellite Service $10,000 6,000
Telephone ($30 per month per condo) $47,160 21,960
User Fee $480,635 325,975
----------- ----------
Total $859,865 $528,435
Avg./Unit $6,465 $8,663
=========== ==========
WiLDERNESS CONDOMINIUM ASSOCIATION
COMBINED (PHASE I, PHASE II AND EXISTING HOTEL UNITS)
USER FEE LEDGER
Full Year Full Year
Supplies-Pool & Garbage $100,000 $100,000
Salaries-Management/Administrative/Security $150,000 $120,000
Salaries -General for Common Areas $50,000 $50,000
Salaries-Maintenance $120,000 $100,000
Salaries-Swim $190,000 $190,000
Taxes-FICA $20,000 $18,000
Taxes-Unemployment $7,000 $5,000
Taxes-Real Estate for Common Areas $100,000 $90,000
Utilities-Common Areas $225,000 $225,000
Garbage Removal $20,000 $20,000
Insurance on Building/Liability $30,000 $25,000
Replacement/Maintenance for Common Areas $35,000 $25,000
Flowers $35,000 $35,000
----------- ----------
TOTAL $1,082,000 $1,003,000
=========== ==========
ALLOCATION CALUCLATIONS for
Phase I & II:
Total User Fees for Phase I,
II & Existing Hotel $1,082,000 $1,003,000 (1)
SQFT Ratio: Phase I&II/Phase
I,II,&Existing Hotel 68.34% 50.00% (2)
Product of (1) * (2) $739,439 $501,500 (3)
1 - Management Fee %
or (1-35%) 65.00% 65.00% (4)
Product of (3) * (4) $480,635 $325,975 Association
=========== ========== User Fees
<PAGE>
COMBINED ASSOCIATION COMMON COSTS
ANNUAL BUDGET
Combined Phase I and II
TOT. POOL ANNUAL
RENTAL # of PHASE I & II ASSOCIATION POOL COSTS
POOL UNITS SQFT % of TOTAL COSTS per UNIT
A 38 27,702 21.38% $183,866 $4,839
B 19 17,841 13.77% $118,416 $6,232
C 40 36,320 28.04% $241,066 $6,027
D 20 23,680 18.28% $157,171 $7,859
E 8 11,496 8.87% $76,302 $9,538
F 4 7,296 5.63% $48,426 $12,106
G&H 4 5,216 4.03% $34,620 $8,655
TOTAL 133 129,551 100.00% $859,865
68.34% Phase I&II
Phase I,II & Existing
Units
Phase I Only
TOT. POOL ANNUAL
RENTAL # of PHASE I ASSOCIATION POOL COSTS
POOL UNITS SQFT % of TOTAL COSTS per UNIT
A 18 13,122 21.80% $115,213 $6,401
B 9 8,451 14.04% $74,201 $8,245
C 16 14,528 24.14% $127,558 $7,972
D 8 9,472 15.74% $83,166 $10,396
E 4 5,748 9.55% $50,468 $12,617
F 2 3,648 6.06% $32,030 $16,015
G&H 4 5,216 8.67% $45,797 $11,449
TOTAL 61 60,185 100.00% $528,435
50.06% Phase I
Phase I & Existing Units
<PAGE>
the
WiLDERNESS HOTEL & RESORT
June - December 1995
OCCUPANCY REPORT
Wilderness
AVE.
TOTAL TOTAL PRICE PER
ROOM ROOMS ROOMS RENTED OCCUPANCY
MONTH SALES RENTED AVAILABLE UNIT PERCENT
June $201,181 2,064 2,370 $97.47 87.09%
July $342,238 2,447 2,449 $139.86 99.92%
August $318,955 2,440 2,449 $130.72 99.63%
September $104,467 1,231 2,370 $84.85 51.94%
October $81,697 1,166 2,449 $70.06 47.61%
November $43,146 648 2,370 $66.58 27.34%
December $50,362 701 2,449 $71.84 28.62%
----------- -------- ------- -------- ----------
TOTAL $1,142,046 10,697 16,906 $106.76 63.27%
=========== ======== ======= ======== ==========
<PAGE>
the
WiLDERNESS HOTEL & RESORT
January - December 1996
OCCUPANCY REPORT
Wilderness
AVE. PRICE
TOTAL TOTAL PER
ROOM ROOMS ROOMS RENTED OCCUPANCY
MONTH SALES RENTED AVAILABLE UNIT PERCENT
January $62,099 901 2,449 $68.92 36.79%
Febuary $86,451 1,245 2,291 $69.44 54.34%
March $122,794 1,676 2,449 $73.27 68.44%
April $110,736 1,503 2,370 $73.68 63.42%
May $127,076 1,498 2,803 $84.83 53.44%
June $383,086 3,099 4,140 $123.62 74.86%
July $652,218 4,020 4,278 $162.24 93.97%
August $624,028 4,022 4,278 $155.15 94.02%
September $168,029 2,048 4,140 $82.05 49.47%
October $137,507 1,807 4,278 $76.10 42.24%
November $86,815 1,110 4,140 $78.21 26.81%
December $95,450 1,067 4,278 $89.46 24.94%
---------- -------- --------- --------- ---------
TOTAL $2,656,289 23,996 41,894 $110.70 57.28%
========== ======== ========= ========= =========
<PAGE>
<TABLE>
<CAPTION>
FULL
YEAR
ACTUAL 1996 OCCUPANCY STATS USED FOR
1998 PHASE I & II RENT PROJECTION SUMMARY
Total
Phase I Phase II Phase I Phase I Phase II Phase II Phases Total Phases
Pool Pool
Pool Type Estimated Estimated Gross Rent Contrib. Gross Rent Contrib. Gross Rent Pool Contrib.
Rent/Unit/Year Rent/Unit/Year Rent/Unit/Year Rent/Unit/Year Rent/Unit/Year
<S> <C> <C> <C> <C> <C> <C>
A-1 $29,210 $29,210 $233,680 $29,816 $292,100 $29,755 $525,780 $29,784
A A $30,300 $30,300 $303,000 $29,816 $303,000 $29,755 $606,000 $29,784
B-1 $32,980 $32,980 $131,920 $33,469 $164,900 $33,420 $296,820 $33,443
B B $33,860 $33,860 $169,300 $33,469 $169,300 $33,420 $338,600 $33,443
C-1 $35,847 $35,847 $322,621 $36,239 $430,162 $36,295 $752,783 $36,272
C C $36,742 $36,742 $257,195 $36,239 $440,906 $36,295 $698,102 $36,272
D-1 $40,189 $40,189 $160,757 $40,785 $241,135 $40,785 $401,892 $40,785
D D $41,381 $41,381 $165,523 $40,785 $248,285 $40,785 $413,808 $40,785
E E $52,014 $52,014 $208,057 $52,014 $208,057 $52,014 $416,114 $52,014
F F $58,466 $58,466 $116,933 $58,466 $116,933 $58,466 $233,865 $58,466
G G $46,830 $46,830 $93,660 $46,830 $0 $0 $93,660 $46,830
H H $46,830 $46,830 $93,660 $46,830 $0 $0 $93,660 $46,830
--------- --------- ----------
TOTALS 2,256,306 2,614,777 $4,871,083
</TABLE>
<PAGE>
ASSUMES PHASE I&II COMBINED & PHASE I ONLY SCENARIOS
the
WiLDERNESS LUXURY
CONDOMINIUM SUITES
Single Queen Condo: A-1 TYPE
Price: $114,900
UNIT TYPE REVENUE CONTRIBUTION TO RENTAL POOL
The following rent projections and occupancy reports
are shown to provide a potential purchaser (1) an
idea of a breakeven analysis and then (2) what the
Wilderness Hotel actually generated through our
occupancy reports.
Projected Total Revenue
Projected #of Days Actual 1996 if based on '96
Full Year Ave.Rate Rented Occupancy % Occupancy
Sept.-May $115 138 50.5% $15,870
June $145 22 73.3% $3,190
July $175 29 93.5% $5,075
August $175 29 93.5% $5,075
Full Year $29,210
35% Full Rental Fee to WH&R,Inc. $10,224
Year
Full Contribution to Pool $18,987
Year
Full Pool Revenue to Owner 19,359
Year
Sales Price $114,900
20% Down 22,980
80% Financing 91,920
9.00% Monthly 740
Pmt
30 (years)
ANNUAL COSTS: Phase I & Phase I
II Only
Full Year Full Year
Loan Pmt 8,875 8,875
Assoc.Dues 4,839 6,401
Credit Card Disc 200 200
0.022 R.E. Taxes 2,528 0
TOTAL 16,442 15,476
CASH-ON-CASH RETURN:
Phase I & Phase I
II Only
Full Year Full Year
Down Pmt 22,980 22,980
Cash to Owner 2,918 3,883
Return 12.70% 16.90%
Note: For each condominium unit type, the net to owner rent figure
exceeds the total annual costs based on these projections. Therefore,
the selling price alone is justified by the rental potential of these
units; a rental potential which is bound to increase once golf is
established. Also, additional tax savings may be realized after
accounting for the unit's depreciation. For specific tax consequences,
please refer to your accountant.
<PAGE>
ASSUMES PHASE I&II COMBINED & PHASE I ONLY SCENARIOS
the
WiLDERNESS LUXURY
CONDOMINIUM SUITES
Single Queen Condo: A TYPE
Price: $117,900
UNIT TYPE REVENUE CONTRIBUTION TO RENTAL POOL
The following rent projections and occupancy reports
are shown to provide a potential purchaser (1) an
idea of a breakeven analysis and then (2) what the
Wilderness Hotel actually generated through our
occupancy reports.
Total
Projected Revenue
Projected #of Days Actual 1996 if based on '96
Full Year Ave.Rate Rented Occupancy % Occupancy
Sept.-May $115 138 50.5% $15,870
June $155 22 73.3% $3,410
July $190 29 93.5% $5,510
August $190 29 93.5% $5,510
Full Year $30,300
35% Full Year Rental Fee to WH&R,Inc. $10,605
Full Year Contribution to Pool $19,695
Full Year Pool Revenue to Owner 19,359
Sales Price $117,900
20% Down 23,580
80% Financing 94,320
9.00% Monthly Pmt 759
30 (years)
ANNUAL COSTS: Phase I & Phase I
II Only
Full Year Full Year
Loan Pmt 9,107 9,107
Assoc.Dues 4,839 6,401
Credit Card 200 200
Disc
0.022 R.E. Taxes 2,594 0
TOTAL 16,739 15,708
CASH-ON-CASH RETURN:
Phase I & Phase I
II Only
Full Year Full Year
Down Pmt 23,580 23,580
Cash to Owner 2,620 3,652
Return 11.11% 15.49%
Note: For each condominium unit type, the net to owner rent figure
exceeds the total annual costs based on these projections. Therefore,
the selling price alone is justified by the rental potential of these
units; a rental potential which is bound to increase once golf is
established. Also, additional tax savings may be realized after
accounting for the unit's depreciation. For specific tax consequences,
please refer to your accountant.
<PAGE>
ASSUMES PHASE I&II COMBINED & PHASE I ONLY SCENARIOS
the
WiLDERNESS LUXURY
CONDOMINIUM SUITES
Double Queen Condo with Loft: B-1 Type
Price: $128,900
UNIT TYPE REVENUE CONTRIBUTION TO RENTAL POOL
The following rent projections and occupancy reports
are shown to provide a potential purchaser (1) an
idea of a breakeven analysis and then (2) what the
Wilderness Hotel actually generated through our
occupancy reports.
Total
Revenue
Projected if based
Projected #of Days Actual 1996 on '96
Full Year Ave.Rate Rented Occupancy % Occupancy
Sept.-May $130 138 50.5% $17,940
June $159 22 73.3% $3,498
July $199 29 93.5% $5,771
August $199 29 93.5% $5,771
Full Year $32,980
35% Full Year Rental Fee to WH&R,Inc. $11,543
Full Year Contribution to Pool $21,437
Full Year Pool Revenue to Owner 21,738
Sales Price $128,900
20% Down 25,780
80% Financing 103,120
9.00% Monthly Pmt 830
30 (years)
ANNUAL COSTS: Phase I & Phase I
II Only
Full Year Full Year
Loan Pmt 9,957 9,957
Assoc.Dues 6,232 8,245
Credit Card
Disc 220 220
0.022 R.E. Taxes 2,836 0
TOTAL 19,245 18,421
CASH-ON-CASH RETURN:
Phase I & Phase I
II Only
Full Year Full Year
Down Pmt 25,780 25,780
Cash to Owner 2,493 3,317
Return 9.67% 12.87%
Note: For each condominium unit type, the net to owner rent figure
exceeds the total annual costs based on these projections. Therefore,
the selling price alone is justified by the rental potential of these
units; a rental potential which is bound to increase once golf is
established. Also, additional tax savings may be realized after
accounting for the unit's depreciation. For specific tax consequences,
please refer to your accountant.
<PAGE>
ASSUMES PHASE I&II COMBINED & PHASE I ONLY SCENARIOS
the
WiLDERNESS LUXURY
CONDOMINIUM SUITES
Double Queen Condo with Loft: B Type
Price: $131,900
UNIT TYPE REVENUE CONTRIBUTION TO RENTAL POOL
The following rent projections and occupancy
reports are shown to provide a potential purchaser
(1) an idea of a breakeven analysis and then (2)
what the Wilderness Hotel actually generated
through our occupancy reports.
Total
Revenue
Projected if based
Projected #of Days Actual 1996 on '96
Full Year Ave.Rate Rented Occupancy % Occupancy
Sept.-May $130 138 50.5% $17,940
June $170 22 73.3% $3,740
July $210 29 93.5% $6,090
August $210 29 93.5% $6,090
Full Year $33,860
35% Full Year Rental Fee to WH&R,Inc. $11,851
Full Year Contribution to Pool $22,009
Full Year Pool Revenue to Owner 21,738
Sales Price $131,900
20% Down 26,380
80% Financing 105,520
9.00% Monthly Pmt 849
30 (years)
ANNUAL COSTS: Phase I & II Phase I
Only
Full Year Full Year
Loan Pmt 10,188 10,188
Assoc.Dues 6,232 8,245
Credit
Card Disc 220 220
0.022 R.E. Taxes 2,902 0
TOTAL 19,543 18,653
CASH-ON-CASH RETURN:
Phase I
Phase I & II Only
Full Year Full Year
Down Pmt 26,380 26,380
Cash to
Owner 2,195 3,085
Return 8.32% 11.69%
Note: For each condominium unit type, the net to owner rent figure
exceeds the total annual costs based on these projections. Therefore,
the selling price alone is justified by the rental potential of these
units; a rental potential which is bound to increase once golf is
established. Also, additional tax savings may be realized after
accounting for the unit's depreciation. For specific tax
consequences, please refer to your accountant.
<PAGE>
ASSUMES PHASE I&II COMBINED & PHASE I ONLY SCENARIOS
the
WiLDERNESS LUXURY
CONDOMINIUM SUITES
Large One Bedroom Condo: C-1 Type
Price: $130,900
UNIT TYPE REVENUE CONTRIBUTION TO RENTAL POOL
The following rent projections and occupancy reports are
shown to provide a potential purchaser (1) an idea of a
breakeven analysis and then (2) what the Wilderness
Hotel actually generated through our occupancy reports.
Projected Total Revenue
Projected #of Days Projected if based on '96
Full Year Ave.Rate Rented Occupancy % Occupancy
Sept.-May $130 158 58.0% $20,584
June $159 23 78.0% $3,721
July $199 29 93.5% $5,771
August $199 29 93.5% $5,771
Full Year $35,847
35%Full Year Rental Fee to WH&R,Inc. $12,546
Full Year Contribution to Pool $23,300
Full Year Pool Revenue to Owner 23,577
Sales Price $130,900
20% Down 26,180
80% Financing 104,720
9.00% Monthly Pmt 843
30 (years)
ANNUAL COSTS: Phase I & II Phase I Only
Full Year Full Year
Loan Pmt 10,111 10,111
Assoc.Dues 6,027 7,972
Credit Card Disc 240 240
0.022 R.E. Taxes 2,880 0
TOTAL 19,258 18,324
CASH-ON-CASH RETURN:
Phase I & II Phase I Only
Full Year Full Year
Down Pmt 26,180 26,180
Cash to Owner 4,319 5,253
Return 16.50% 20.07%
Note: For each condominium unit type, the net to owner rent figure
exceeds the total annual costs based on these projections.
Therefore, the selling price alone is justified by the rental potential
of these units; a rental potential which is bound to increase once golf
is established. Also, additional tax savings may be realized after
accounting for the unit's depreciation. For specific tax consequences,
please refer to your accountant.
This unit appeals to many different groups because of its amenities.
It would appeal to a couple or couples or a family. So we expect the
occupancy should be greater because it is a true honeymoon suite and
multi-purpose unit.
<PAGE>
ASSUMES PHASE I&II COMBINED & PHASE I ONLY SCENARIOS
the
WiLDERNESS LUXURY
CONDOMINIUM SUITES
Large One Bedroom Condo: C Type
Price: $133,900
UNIT TYPE REVENUE CONTRIBUTION TO RENTAL POOL
The following rent projections and occupancy reports are
shown to provide a potential purchaser (1) an idea of a
breakeven analysis and then (2) what the Wilderness
Hotel actually generated through our occupancy reports.
Projected Total Revenue
Projected #of Days Projected if based on '96
Full Year Ave.Rate Rented Occupancy % Occupancy
Sept.-May $130 158 58.0% $20,584
June $170 23 78.0% $3,978
July $210 29 93.5% $6,090
August $210 29 93.5% $6,090
Full Year $36,742
35% Full Year Rental Fee to WH&R,Inc. $12,860
Full Year Contribution to Pool $23,882
Full Year Pool Revenue to Owner 23,577
Sales Price $133,900
20% Down 26,780
80% Financing 107,120
9.00% Monthly Pmt 862
30 (years)
ANNUAL COSTS: Phase I & II Phase I Only
Full Year Full Year
Loan Pmt 10,343 10,343
Assoc.Dues 6,027 7,972
Credit Card Disc 240 240
0.022 R.E. Taxes 2,946 0
TOTAL 19,555 18,555
CASH-ON-CASH RETURN:
Phase I & II Phase I Only
Full Year Full Year
Down Pmt 26,780 26,780
Cash to Owner 4,021 5,022
Return 15.02% 18.75%
Note: For each condominium unit type, the net to owner rent figure
exceeds the total annual costs based on these projections.
Therefore, the selling price alone is justified by the rental
potential of these units; a rental potential which is bound to
increase once golf is established. Also, additional tax savings
may be realized after accounting for the unit's depreciation.
For specific tax consequences, please refer to your accountant.
This unit appeals to many different groups because of its
amenities. It would appeal to a couple or couples or a family.
So we expect the occupancy should be greater because it is a
true honeymoon suite and multi-purpose unit.
<PAGE>
ASSUMES PHASE I&II COMBINED & PHASE I ONLY SCENARIOS
the
WiLDERNESS LUXURY
CONDOMINIUM SUITES
Large Two Bedroom Condo with Loft: D-1 Type
Price: $145,900
UNIT TYPE REVENUE CONTRIBUTION TO RENTAL POOL
The following rent projections and occupancy reports are
shown to provide a potential purchaser (1) an idea of a
breakeven analysis and then (2) what the Wilderness
Hotel actually generated through our occupancy reports.
Projected Total Revenue
Projected #of Days Projected if based on '96
Full Year Ave.Rate Rented Occupancy % Occupancy
Sept.-May $155 150 55.0% $23,273
June $185 23 75.0% $4,163
July $220 29 93.5% $6,377
August $220 29 93.5% $6,377
Full Year $40,189
35% Full Year Rental Fee to WH&R,Inc. $14,066
Full Year Contribution to Pool $26,123
Full Year Pool Revenue to Owner 26,510
Sales Price $145,900
20% Down 29,180
80% Financing 116,720
9.00% Monthly Pmt 939
30 (years)
ANNUAL COSTS: Phase I & II Phase I Only
Full Year Full Year
Loan Pmt 11,270 11,270
Assoc.Dues 7,859 10,396
Credit Card Disc 260 260
0.022 R.E. Taxes 3,210 0
TOTAL 22,598 21,926
CASH-ON-CASH RETURN:
Phase I & II Phase I Only
Full Year Full Year
Down Pmt 29,180 29,180
Cash to Owner 3,912 4,585
Return 13.41% 15.71%
Note: For each condominium unit type, the net to owner rent figure
exceeds the total annual costs based on these projections.
Therefore, the selling price alone is justified by the rental
potential of these units; a rental potential which is bound to
increase once golf is established. Also, additional tax savings
may be realized after accounting for the unit's depreciation.
For specific tax consequences, please refer to your accountant.
The occupancy % should increase for this unit because this type
appeals to multiple couples and families. It would also serve as
a honeymoon suite in the event all "Type C" units are taken.
<PAGE>
ASSUMES PHASE I&II COMBINED & PHASE I ONLY SCENARIOS
the
WiLDERNESS LUXURY
CONDOMINIUM SUITES
Large Two Bedroom Condo with Loft: D Type
Price: $148,900
UNIT TYPE REVENUE CONTRIBUTION TO RENTAL POOL
The following rent projections and occupancy reports are
shown to provide a potential purchaser (1) an idea of a
breakeven analysis and then (2) what the Wilderness
Hotel actually generated through our occupancy reports.
Projected Total Revenue
Projected #of Days Projected if based on '96
Full Year Ave.Rate Rented Occupancy % Occupancy
Sept.-May $155 138 55.0% $23,273
June $199 22 75.0% $4,478
July $235 29 93.5% $6,815
August $235 29 93.5% $6,815
Full Year $41,381
35%Full Year Rental Fee to WH&R,Inc. $14,483
Full Year Contribution to Pool $26,897
Full Year Pool Revenue to Owner 26,510
Sales Price $148,900
20% Down 29,780
80% Financing 119,120
9.00% Monthly Pmt 958
30 (years)
ANNUAL COSTS: Phase I & II Phase I Only
Full Year Full Year
Loan Pmt 11,502 11,502
Assoc.Dues 7,859 10,396
Credit Card Disc 260 260
0.022 R.E. Taxes 3,276 0
TOTAL 22,896 22,157
CASH-ON-CASH RETURN:
Phase I & II Phase I Only
Full Year Full Year
Down Pmt 29,780 29,780
Cash to Owner 3,614 4,353
Return 12.14% 14.62%
Note: For each condominium unit type, the net to owner rent figure
exceeds the total annual costs based on these projections.
Therefore, the selling price alone is justified by the rental
potential of these units; a rental potential which is bound to
increase once golf is established. Also, additional tax savings
may be realized after accounting for the unit's depreciation.
For specific tax consequences, please refer to your accountant.
The occupancy % should increase for this unit because this type
appeals to multiple couples and families. It would also serve
as a honeymoon suite in the event all "Type C" units are taken.
<PAGE>
ASSUMES PHASE I&II COMBINED & PHASE I ONLY SCENARIOS
the
WiLDERNESS LUXURY
CONDOMINIUM SUITES
Super Deluxe Two Bedroom Condo: E Type
Price: $187,900
UNIT TYPE REVENUE CONTRIBUTION TO RENTAL POOL
The following rent projections and occupancy reports are
shown to provide a potential purchaser (1) an idea of a
breakeven analysis and then (2) what the Wilderness
Hotel actually generated through our occupancy reports.
Projected Total Revenue
Projected #of Days Projected if based on '96
Full Year Ave.Rate Rented Occupancy % Occupancy
Sept.-May $195 150 55.0% $29,279
June $250 23 75.0% $5,625
July $295 29 93.5% $8,555
August $295 29 93.5% $8,555
Full Year $52,014
35% Full Year Rental Fee to WH&R,Inc. $18,205
Full Year Contribution to Pool $33,809
Full Year Pool Revenue to Owner 33,809
Sales Price $187,900
20% Down 37,580
80% Financing 150,320
9.00% Monthly Pmt 1,210
30 (years)
ANNUAL COSTS: Phase I & II Phase I Only
Full Year Full Year
Loan Pmt 14,514 14,514
Assoc.Dues 9,538 12,617
Credit Card Disc 300 300
0.022 R.E. Taxes 4,134 0
TOTAL 28,486 27,431
CASH-ON-CASH RETURN:
Phase I & II Phase I Only
Full Year Full Year
Down Pmt 37,580 37,580
Cash to Owner 5,324 6,378
Return 14.17% 16.97%
Note: For each condominium unit type, the net to owner rent figure
exceeds the total annual costs based on these projections.
Therefore, the selling price alone is justified by the rental
potential of these units; a rental potential which is bound to
increase once golf is established. Also, additional tax savings
may be realized after accounting for the unit's depreciation.
For specific tax consequences, please refer to your accountant.
This unit is a classy two bedroom unit because of its large size
and amenities. Its master bedroom, with a jacuzzi by a fireplace
and window overlooking the golf course and outdoor pool areas,
gives itself a "set-up" category of two bedroom units. It also
appeals to multiple families because of its two bedrooms. Also,
there are not as many of them so the demand should be higher.
<PAGE>
ASSUMES PHASE I&II COMBINED & PHASE I ONLY SCENARIOS
the
WiLDERNESS LUXURY
CONDOMINIUM SUITES
Large Three Bedroom Condo with Loft: F Type
Price: $207,900
UNIT TYPE REVENUE CONTRIBUTION TO RENTAL POOL
The following rent projections and occupancy reports are
shown to provide a potential purchaser (1) an idea of a
breakeven analysis and then (2) what the Wilderness
Hotel actually generated through our occupancy reports.
Projected Total Revenue
Projected #of Days Actual 1996 if based on '96
Full Year Ave.Rate Rented Occupancy % Occupancy
Sept.-May $225 150 55.0% $33,784
June $285 23 75.0% $6,413
July $315 29 93.5% $9,135
August $315 29 93.5% $9,135
Full Year $58,466
35% Full Year Rental Fee to WH&R,Inc. $20,463
Full Year Contribution to Pool $38,003
Full Year Pool Revenue to Owner 38,003
Sales Price $207,900
20% Down 41,580
80% Financing 166,320
9.00% Monthly Pmt 1,338
30 (years)
ANNUAL COSTS: Phase I & II Phase I Only
Full Year Full Year
Loan Pmt 16,059 16,059
Assoc.Dues 12,106 16,015
Credit Card Disc 340 340
0.022 R.E. Taxes 4,574 0
TOTAL 33,079 32,414
CASH-ON-CASH RETURN:
Phase I & II Phase I Only
Full Year Full Year
Down Pmt 41,580 41,580
Cash to Owner 4,924 5,589
Return 11.84% 13.44%
Note: For each condominium unit type, the net to owner rent figure
exceeds the total annual costs based on these projections.
Therefore, the selling price alone is justified by the rental
potential of these units; a rental potential which is bound to
increase once golf is established. Also, additional tax
savings may be realized after accounting for the unit's
depreciation. For specific tax consequences, please refer to
your accountant.
This unit is a classy three bedroom unit because of its large
size and amenities. Its master bedroom, with a jacuzzi by a
fireplace and window overlooking the golf course and outdoor
pool areas, gives itself a "set-up" category by being the only
fully enclosed three bedroom unit. It also appeals to multiple
families because of its three bedrooms. Also, there are not
as many of them so the demand should be higher.
<PAGE>
ASSUMES PHASE I&II COMBINED & PHASE I ONLY SCENARIOS
the
WiLDERNESS LUXURY
CONDOMINIUM SUITES
Large Two Bedroom/One Bathroom: G Type
Price: $182,900
UNIT TYPE REVENUE CONTRIBUTION TO RENTAL POOL
The following rent projections and occupancy reports are
shown to provide a potential purchaser (1) an idea of a
breakeven analysis and then (2) what the Wilderness
Hotel actually generated through our occupancy reports.
Projected Total Revenue
Projected #of Days Actual 1996 if based on '96
Full Year Ave.Rate Rented Occupancy % Occupancy
Sept.-May $195 138 50.5% $26,910
June $220 22 73.3% $4,840
July $260 29 93.5% $7,540
August $260 29 93.5% $7,540
Full Year $46,830
35% Full Year Rental Fee to WH&R,Inc. $16,391
Full Year Contribution to Pool $30,440
Full Year Pool Revenue to Owner 30,440
Sales Price $182,900
20% Down 36,580
80% Financing 146,320
9.00% Monthly Pmt 1,177
30 (years)
ANNUAL COSTS: Phase I & I Phase I Only
Full Year Full Year
Loan Pmt 14,128 14,128
Assoc.Dues 8,655 11,449
Credit Card Disc 300 300
0.022 R.E. Taxes 4,024 0
TOTAL 27,107 25,877
CASH-ON-CASH RETURN:
Phase I & I Phase I Only
Full Year Full Year
Down Pmt 36,580 36,580
Cash to Owner 3,333 4,562
Return 9.11% 12.47%
Note: For each condominium unit type, the net to owner rent figure
exceeds the total annual costs based on these projections.
Therefore, the selling price alone is justified by the rental
potential of these units; a rental potential which is bound to
increase once golf is establishid. Also, additional tax savings
may be realized after accounting for the unit's depreciation.
For specific tax consequences, please refer to your accountant.
<PAGE>
ASSUMES PHASE I&II COMBINED & PHASE I ONLY SCENARIOS
the
WiLDERNESS LUXURY
CONDOMINIUM SUITES
Large Two Bedroom/One Bathroom: H Type
Price: $177,900
UNIT TYPE REVENUE CONTRIBUTION TO RENTAL POOL
The following rent projections and occupancy reports are
shown to provide a potential purchaser (1) an idea of a
breakeven analysis and then (2) what the Wilderness
Hotel actually generated through our occupancy reports.
Projected Total Revenue
Projected #of Days Actual 1996 if based on '96
Full Year Ave.Rate Rented Occupancy % Occupancy
Sept.-May $195 138 50.5% $26,910
June $220 22 73.3% $4,840
July $260 29 93.5% $7,540
August $260 29 93.5% $7,540
Full Year $46,830
35% Full Year Rental Fee to WH&R,Inc. $16,391
Full Year Contribution to Pool $30,440
Full Year Pool Revenue to Owner 30,440
Sales Price $177,900
20% Down 35,580
80% Financing 142,320
9.00% Monthly Pmt 1,145
30 (years)
ANNUAL COSTS: Phase I & II Phase I Only
Full Year Full Year
Loan Pmt 13,742 13,742
Assoc.Dues 8,655 11,449
Credit Card Disc 300 300
0.022 R.E. Taxes 3,914 0
TOTAL 26,610 25,491
CASH-ON-CASH RETURN:
Phase I & II Phase I Only
Full Year Full Year
Down Pmt 35,580 35,580
Cash to Owner 3,829 4,948
Return 10.76% 13.91%
Note: For each condominium unit type, the net to owner rent figure
exceeds the total annual costs based on these projections.
Therefore, the selling price alone is justified by the rental
potential of these units; a rental potential which is bound to
increase once golf is established. Also, additional tax
savings may be realized after accounting for the unit's
depreciation. For specific tax consequences, please refer to
your accountant.
