CUMBERLAND GATE, LLC LIMITED LIABILITY COMPANY AGREEMENT
Exhibit 3.12
CUMBERLAND GATE, LLC
This
LIMITED LIABILITY COMPANY AGREEMENT (the “Agreement”) is made as of this 4th day of June 2008,
by POTTER’S MILL, INC.,a Bahamian International Business Corporation (the “Member”), as the sole
member and manager of Cumberland Gate, LLC, a single member Delaware limited liability company.
RECITALS
WHEREAS,
a Certificate of Formation dated June 4, 2008 (the “Certificate”) was filed in the office
of the Secretary of State of Delaware to form a limited liability company under the name Cumberland
Gate, LLC (the “Company”), pursuant to and in accordance with the Delaware Limited Liability
Company Act, as amended (6 Del. C. § 18-101, et seq.) (the “Act”).
WHEREAS, By executing this Agreement, the Member hereby ratifies the formation of the Company and
the filing of the Certificate.
WHEREAS, the Member is entering into this Agreement to set forth the terms governing the affairs of
the Company and the conduct of its business.
ARTICLE I
DEFINED TERMS
Capitalized terms used herein without further definition, and variations thereof, have the meaning
set forth below unless the context otherwise clearly requires:
Act: the Delaware Limited Liability Company Act, 6 Del C. 18-101 et seq., as amended from time to
time.
Affiliate: as to any particular Person, any other Person that, directly or indirectly, is in
control of, is controlled by or is under common control with such particular Person or is a
director or officer of such particular Person or an Affiliate of such particular Person. For the
purposes of this Agreement, “control” means the possession, directly or indirectly, of the power to
direct or cause the direction of the management, policies or activities of a Person, whether
through ownership of voting securities, by contract or otherwise.
Agreement: this Limited Liability Company Agreement and all amendments hereto.
Certificate: the Certificate of Formation of the Company, filed with the Secretary of State of
Delaware on or about June 4, 2008 as amended from time to time.
Code: the Internal Revenue Code of 1986, as amended or recodified.
Company: Cumberland Gate, LLC, a Delaware limited liability company.
MEMBER: Potter’s Mill, Inc., a Bahamian International Business Corporation.
Interest: the entire ownership interest (which may be expressed as a percentage) of a Member in the
Company at any particular time, including the right of such Member to any and all benefits to which
a Member may be entitled pursuant to this Agreement and under the Act, together with all
obligations of such Member to comply with the terms and provisions of this Agreement and the Act.
The Interest of each Member is set forth on Exhibit A hereto, as the same is amended from time to
time.
Manager:
Potter’s Mill, Inc. and its successors and assigns.
Member:
Potter’s Mill, Inc. any Persons admitted in the future as Members of the Company in
accordance with the terms hereof, and their permitted successors and assigns.
Person: any individual, partnership, limited liability company, firm, corporation, trust, state or
other entity.
ARTICLE II
COMPANY
Section 2.1 Name, Formation. The name of the Company is “Cumberland Gate, LLC”. The Manager
may change the name of the Company from time to time. The Company was formed by the filing of the
Certificate, and the filing of the Certificate by Xxxxx X. Xxxxx as an authorized person within the
meaning of the Act is hereby ratified and confirmed in all respects. Upon the filing of the
Certificate of Formation with the Secretary of State of the State of Delaware, his powers as an
authorized person shall cease and the Member shall thereafter be designated as an authorized person
within the meaning of the Act. The Manager agrees to execute and file in the appropriate
governmental jurisdictions, such additional certificates as may be required in the conduct of the
Company’s business.
Section 2.2
Member. As of the date hereof, Potter’s Mill,
Inc. is the sole Member of the
Company. Additional Persons may be admitted to the Company as Members in accordance with Section
7.2 hereof.
Section 2.3 Purpose. The purposes and businesses of the Company shall be to transact any
and all lawful businesses for which a limited liability company may be organized under Delaware
law. The Company shall have all power necessary or convenient to the conduct, promotion or
attainment of its businesses, purposes and activities.
Section 2.4 Principal Office and Place of Business. The principal office and place of
business of the Company shall be located at such location as the Member directs. The Company may
have such additional offices as the Manager deems advisable.
Section 2.5 Registered Agent. The registered agent of the Company shall be National
Registered Agents, Inc., located at 000 Xxxxxxxxx Xxxxx, Xxxxx 000, in the City of Xxxxx, Xxxxxxxx
00000. The Member shall have the right to change the registered agent of the Company at any time in
compliance with the Act and the laws of all other jurisdictions in which the Company may elect to
conduct business.
ARTICLE III
CONTRIBUTION BY THE MEMBER
Section 3.1 Initial Capital of the Company. The sums of cash or property contributed by the
Member to the Company, if any, is set forth in the records of the Company; provided, however, that
a Person may be admitted as a Member of the Company and receive an Interest without making a
contribution or being obligated to make a contribution to the Company.
Section 3.2 Additional Capital Contributions. Except to the extent required under the Act,
no Member shall be required at any time to make any additional contributions to the capital of the
Company.
Section 3.3 Limitation on Withdrawal of Capital. Except as expressly provided in
this Agreement, (a) no Member shall have the right to withdraw or receive any return on its
contributions to Company capital prior to termination of the Company pursuant to Article VIII
hereof and (b) no Member shall have any right to demand or
receive property other than cash in
return for its contributions.
Section 3.4 Allocation of Profits and Losses. The Company’s profits and losses shall be
allocated among the Member(s) in proportion to its/their respective Interests.
ARTICLE IV
DISTRIBUTIONS
Section 4.1 Distributions. The Manager, in its sole discretion shall determine from time to
time the amount of cash and other property of the Company that is not required for the operation of
the Company and is available for distribution to the Member(s) and shall cause the Company to
distribute such cash and property to the Member(s) in proportion to its/their respective Interests,
so long as such distribution would not violate the Act or other applicable law.
ARTICLE V
MANAGEMENT; LEGAL TITLE TO COMPANY PROPERTY
Section 5.1 Management Authority. Except as otherwise expressly provided herein or in the
Act, responsibility for the management of the business and affairs of the Company shall be wholly
vested In the Manager, which shall have all right, power and authority to manage, operate and
control the business and affairs of the Company and to do or cause to be done any and all acts, at
the expense of the Company, deemed by it to be necessary or convenient to the furtherance of the
purpose of the Company described in this Agreement. Any action taken by the Manager which is not in
violation of this Agreement, the Act and other applicable law shall constitute the act of, and
serve to bind, the Company. Any and all actions taken or approved by the Manager pursuant to this
Section 5.1 may, but need not, be evidenced by written resolutions. Without limiting the generality
of the foregoing, the Manager may appoint, remove and replace officers of the Company at any time
and from time to time, and the Manager may retain such Persons (including any Persons in which the
Manager shall have an interest or of which the Manager is an Affiliate) as it shall determine to
provide services to or on behalf of the Company for such compensation as the Manager deems
appropriate. The Manager may designate individuals as authorized signatories to bind the Company
and/or serve as “authorized persons,” within the meaning of
the Act, to execute, deliver and file
any amendments or restatements of the Certificate and all other certificates (and any amendments
and/or restatements thereof) required or permitted by the Act to be filed in the office of the
Secretary of State of Delaware. Without limiting the generality of the foregoing, the Xxxx X.
Xxxx and Xxxxx Xxxxxxxxx are hereby designated as authorized persons (the “Authorized
Person(s)”), within the meaning of the Act, to execute, deliver and file, or cause the execution,
delivery and filing of, all certificates (and any amendments and/or restatements thereof) required
or permitted by the Act to be filed in the office of the Secretary of State of Delaware.
Section 5.2 Limitation of Liability. Except as otherwise provided in the Act, the debts,
obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall
be solely the debts, obligations and liabilities of the Company. The Manager, Member(s) and their
respective partners, members, stockholders, officers, trustees, directors, employees or agents, or
any partners, managers, officers, employees or agents of the Company shall not be obligated
personally for any debt, obligation or liability of the Company. To the maximum extent permitted by
law, the failure of the Company to observe any formalities or requirements relating to the exercise
of its powers or management of its business or affairs under the Act or this Agreement shall not be
grounds for imposing personal liability on the Manager, Member(s), their respective partners,
members, stockholders, officers, trustees, directors, employees or agents, for any liabilities of
the Company.
Section 5.3 Indemnification. The Company shall indemnify, defend and hold harmless the
Manager and any Member from and against any loss, expense, damage or injury suffered or sustained
in connection with the business of the Company to the fullest extent provided or permitted by the
Act.
ARTICLE VI
FISCAL
YEAR, BOOKS AND RECORDS, BANK ACCOUNTS
Section 6.1 Fiscal Year. The fiscal year of the Company shall end on the last day of
December each year; provided, however, that the Manager may change the fiscal year of the Company
from time to time in the Manager’s sole discretion.
Section 6.2 Books and Records.
(a) There shall be kept and maintained at the Company’s principal place of business full and
accurate books and records showing all receipts and expenditures, assets and liabilities, profits,
losses and distributions, and all other records necessary for recording the Company’s business and
affairs.
(b) The
books of the Company shall be kept on the accounting method determined by the Manager.
Section 6.3 Bank Accounts. The funds of the Company shall be deposited in such bank account
or accounts as the Manager determines are required, and the Manager shall arrange for the
appropriate conduct of such accounts. In connection with the opening of any such account, any
standard form of resolutions customarily employed by such bank shall be deemed adopted by the
Company and/or the Manager upon certification of such by an Authorized Person as defined in Section
5.1.
Section 6.4 Tax Returns and Financial Statements. Tax returns and the annual financial
statements of the Company shall be prepared by or at the direction of the Manager.
ARTICLE VII
ASSIGNMENT OF INTEREST
Section 7.1 Limitation on Assignment by Members. Except as otherwise provided herein, no
Member may assign or transfer all or any part of its Interest in the Company, whether by operation
of law or otherwise, and including granting security interests in such Interest, without (i) the
consent of the Manager and (ii) the assignee or transferee agreeing in writing to be bound by the
terms of this Agreement.
Section 7.2
Admission of Additional Members. One or more Persons may be admitted as
additional Members of the Company with the written consent of the Manager. Upon such consent and
the execution of this Agreement, each such Person shall be automatically admitted as a Member of
the Company and shall hold the Interest set forth on Exhibit A attached hereto, as amended from
time to time.
ARTICLE VIII
TERM, DISSOLUTION AND TERMINATION
Section 8.1 Term. The term of the Company began upon the filing of the Certificate with the
Secretary of State of Delaware and shall continue in perpetuity until dissolved, wound up and
terminated pursuant to the provisions of this Agreement or as otherwise provided by the Act. The
existence of the
Company as a separate legal entity shall continue until cancellation of the Certificate as provided
in the Act.
Section 8.2 Dissolution.
(a) The Company shall be dissolved and its affairs wound up upon (a) the retirement or withdrawal
of the only remaining Member of the Company (other than in connection with an assignment of its
interest in the Company), or (b) the written determination of the Manager that the Company
dissolve.
(b) Notwithstanding (a) above, upon the occurrence of any event that causes the last remaining
Member of the Company to cease to be a Member of the Company, the personal representative of such
Member is hereby authorized to the fullest extent permitted by law,
within ninety (90) days after
the occurrence of the event that terminated the continued membership of such Member in the Company,
to agree in writing to (i) continue the Company and (ii) admit the personal representative or its
nominee or designee, as the case may be, as a substitute Member of the Company, effective as of the
occurrence of the event that terminated the continued membership of the last remaining Member of
the Company in the Company.
Section 8.3 Procedures upon Dissolution. Upon dissolution of the Company, the Manager shall
wind up the business and affairs of the Company and shall cause all property and assets of the
Company to be distributed as follows:
(a) first, all of the Company’s debts, liabilities and obligations, including any loans or advances
from the Manager or Member(s), shall be paid in full or reserves therefore shall be set aside in
accordance with Section 18-804 of the Act; and
(b) any remaining assets shall be distributed to the Member(s) in proportion to its/their
respective interests.
Upon completion of the winding up, liquidation and distribution of the assets and the filing of a
certificate of cancellation of the Certificate, the Company shall be deemed terminated.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Liability Among Members. Unless otherwise so provided in this Agreement, no
Member shall be liable to any other Member or to the Company by reason of its actions or omission
in connection with the Company except in the case of actual fraud, gross negligence or dishonest
conduct.
Section 9.2 References. References herein to the singular shall include the plural and to
the plural shall include the singular, and references to one gender shall include the other, except
where the same shall be not appropriate.
Section 9.3 Effect of Consent of Waiver. No consent or waiver, express or implied, by any
Member to or of any breach or default hereunder shall be deemed to be construed to be a consent or
waiver to or of any other breach or default hereunder. Failure on the part of a Member to declare
any default, irrespective of how long such failure continues, shall not constitute a waiver by any
such Member of its rights hereunder.
Section 9.4 Enforceability. If any provisions of this Agreement or the application thereof
to any Person or circumstances shall be invalid or unenforceable to any extent, the remainder of
this Agreement and the application of such provisions to other Persons or circumstances shall not
be affected thereby and shall be enforced to the greatest extent permitted by law.
Section 9.5 Titles and Captions. Section titles or captions contained in the Agreement are
for convenience only and shall not be deemed a part of the contents of this Agreement.
Section 9.6
Binding Agreement and Express Third Party Beneficiaries. Subject to the
restrictions on transfer and encumbrances set forth herein, (i) this Agreement shall inure to the
benefit of and be binding upon the Member(s) and its/their respective heirs, executors, legal
representatives, successors and assigns and (ii) whenever in this instrument a reference to any
Member is made, such reference shall be deemed to include a reference to the heirs, executors,
legal representatives, successors and assigns of each such Member.
Section 9.7 Amendment. This Agreement may be amended at any time pursuant to a written
agreement or instrument executed by the Manager without the consent or approval of any Member.
Section 9.8 Governing Law. This Agreement is made and shall be construed under and in
accordance with the laws of the State of Delaware (without regard to conflict of laws provisions).
Section 9.9 Entire Agreement. This Agreement contains the final and entire agreement of the
Manager and Member(s) with respect to the subject matter hereof.
Section 9.10
Counterparts; Facsimile Signatures. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and all of which, taken together,
shall constitute a single integrated instrument. Further, each Member expressly authorizes the
execution of this Agreement by telecopy or other electronic method and authorizes the attachment of
facsimile signature pages to this Agreement.
[Signature page follows]
IN
WITNESS WHEREOF, the undersigned Member has executed this Agreement as of March 18th, 2009.
| POTTER’S MILL, INC., a Bahamian International Business Corporation, as Member and Manager |
||||
| By: | [ILLEGIBLE] | |||
| Its: [ILLEGIBLE] | ||||
EXHIBIT A
| MEMBER | INTEREST | |||
POTTER’S MILL, INC.
|
100% | |||
