SUNTERRA SOUTH MARKETING, LLC LIMITED LIABILITY COMPANY AGREEMENT
Exhibit 3.16
SUNTERRA SOUTH MARKETING, LLC
This LIMITED LIABILITY COMPANY AGREEMENT (the “Agreement”) is made as of this 16th day. of July,
2002, by RESORT MARKETING INTERNATIONAL, INC., a California corporation (“RMI”), as the sole member
and manager of Sunterra South Marketing, LLC, a single member Delaware limited liability company.
RECITALS
WHEREAS, a Certificate of Formation dated July 16, 2002 (the “Certificate”) was filed in the office
of the Secretary of State of Delaware to form a limited liability company under the name Sunterra
South Marketing, 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, RMI hereby ratifies the formation of the Company and the
filing of the Certificate.
WHEREAS, RMI 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 July 16, 2002, as amended from time to time.
Code: the Internal Revenue Code of 1986, as amended or recodified.
Company: Sunterra South Marketing, LLC, a Delaware limited liability company.
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: RMI and its successors and assigns.
Member: RMI, 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.
RMI: Resort Marketing International, Inc., a California corporation.
ARTICLE II
COMPANY
Section 2.1 Name, Formation. The name of the Company is “Sunterra South Marketing, 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 Xxxx X. Xxxxxxxx as an authorized
person within the meaning of the Act is hereby ratified and confirmed in all respects. 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, RMI 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 Manager 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 The Corporation
Trust Company, located at 0000 Xxxxxx Xxxxxx, in the City of Xxxxxxxxxx, Xxxxxxxx 00000. The Manager
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
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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 Secretary or any Vice President of RMI is hereby
designated as an authorized person, 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.
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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 be the calendar 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 the Secretary or any Vice President of
RMI.
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
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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 therefor 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 or 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.
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Section 9.5 Titles and Captions. Section titles or captions contained in this 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 facsimile method and authorizes the attachment of facsimile
signature pages to this Agreement.
[signature page to follow]
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IN WITNESS WHEREOF, the undersigned Member has executed this Agreement as of July 16, 2002.
| RESORT MARKETING INTERNATIONAL, INC., a California corporation, as Member and Manager |
||||
| By: | /s/ Xxxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxx | |||
| Title: | President | |||
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EXHIBIT A
| MEMBER | INTEREST | |||
RESORT MARKETING INTERNATIONAL, INC. |
100% | |||
A-1
THIS FIRST AMENDMENT to the Limited Liability Agreement of SUNTERRA SOUTH MARKETING, LLC, a
Delaware limited liability company (the “Company”), is dated as of this eleventh day of November
2003.
R E C I T A L S
A. The Company was formed on July 16, 2002 upon the filing of its Certificate of Formation with the
Secretary of State of the State of Delaware.
B. Resort Marketing International, Inc., a Delaware corporation (“RMI”), is the sole member and
manager of the Company.
C. RMI previously approved and executed that certain Limited Liability Company Agreement of the
Company dated as of July 16, 2002 (the “Agreement”).
D RMI has assigned, transferred and set over unto Sunterra Developer and Sales Holding Company, a
Delaware corporation (“DHC”) one hundred percent (100%) of its ownership interest in the Company
pursuant to that certain Assignment of Membership Interest of even date herewith.
E RMI and DHC desire to amend the Agreement as set forth below to evidence the withdrawal of RMI as
a member and manager and the admission of DHC as substitute member and manager.
AGREEMENT
In consideration of the premises and the mutual covenants hereinafter set forth, it is hereby
agreed as follows:
1. RMI hereby withdraws from the Company and consents to the admission of DHC as substitute member
and manager in RMI’s place and stead.
2. DHC hereby agrees to be admitted as substitute member and manager and agrees to be bound by all
the terms, covenants, and conditions of the Agreement and any amendments thereto.
3. All references in the Agreement to “Resort Marketing International, Inc.” shall be deemed to be
references to “Sunterra Developer and Sales Holding Company” and all references in the Agreement to
“RMI” shall be deemed to be references to “DHC”.
4. The Agreement, as amended hereby, is hereby ratified, approved and confirmed in all respects.
IN WITNESS WHEREOF, This First Amendment has been executed as of the date first above written.
| SUNTERRA DEVELOPER AND SALES HOLDING COMPANY, a Delaware corporation |
||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Xxxxxx X. Xxxx | ||||
| Its: Vice President | ||||
| WITHDRAWING MEMBER AND MANAGER RESORT MARKETING INTERNATIONAL, INC. a Delaware corporation |
||||
| By: | /s/ Xxxxxxxxx X. Xxxxxx | |||
| Xxxxxxxxx X. Xxxxxx | ||||
| Its: Vice President | ||||
THIS SECOND AMENDMENT to the Limited Liability Agreement of SUNTERRA SOUTH MARKETING, LLC, a
Delaware limited liability company (the “Company”), is dated as of this twentieth day of January
2004.
R E C I T A L S
A. The Company was formed on July 16, 2002 upon the filing of its Certificate of Formation with the
Secretary of State of the State of Delaware and Resort Marketing International, Inc., a California
corporation (“RMI”) was the sole member and manager of the Company.
B. RMI approved and executed that certain Limited Liability Company Agreement of the
Company dated as of July 15, 2002 (the “Agreement”); and assigned, transferred and set over unto
Sunterra Developer and Sales Holding Company, a Delaware corporation (“DHC”) one hundred percent
(100%) of its ownership interest in the Company pursuant to that certain Assignment of Membership
Interest dated November 11, 2003.
C. DHC has assigned, transferred and set over unto Sunterra Corporation, a Maryland
corporation (“Sunterra”) one hundred percent (100%) of its ownership interest in the Company
pursuant to that certain Assignment of Membership Interest of even date herewith.
D. DHC and Sunterra desire to amend the Agreement as set forth below to evidence the withdrawal of
DHC as a member and manager and the admission of Sunterra as substitute member and manager.
AGREEMENT
In consideration of the premises and the mutual covenants hereinafter set forth, it is hereby
agreed as follows:
1. DHC hereby withdraws from the Company and consents to the admission of Sunterra as substitute
member and manager in DHC’s place and stead.
2. Sunterra hereby agrees to be admitted as substitute member and manager and agrees to be bound by
all the terms, covenants, and conditions of the Agreement and any amendments thereto.
3. All references in the Agreement deemed to be references to “Sunterra Developer and Sales Holding
Company” shall be deemed to be references to “Sunterra Corporation”, and all references in the
Agreement deemed to be references to “DHC” shall be deemed to be references to “Sunterra”.
4. The Agreement, as amended hereby, is hereby ratified, approved and confirmed in all
respects.
IN WITNESS WHEREOF, This Second Amendment has been executed as of the date first above written.
| SUNTERRA CORPORATION a Maryland corporation |
||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Xxxxxx X. Xxxx | ||||
| Its: Senior Vice President | ||||
| WITHDRAWING MEMBER AND MANAGER SUNTERRA DEVELOPER AND SALES HOLDING COMPANY, a Delaware corporation |
||||
| By: | /s/ Xxxxxxxxx X. Xxxxxx | |||
| Xxxxxxxxx X. Xxxxxx | ||||
| Its: Vice President | ||||
