SUNTERRA SANTA FE DEVELOPMENT, LLC LIMITED LIABILITY COMPANY AGREEMENT
Exhibit 3.86
This LIMITED LIABILITY COMPANY AGREEMENT (the “Agreement”) is made as of this 16th day of
July, 2002, by SUNTERRA DEVELOPER AND SALES HOLDING COMPANY, a Delaware corporation (“DHC”), as the
sole member and manager of Sunterra Santa Fe Development, 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 Santa Fe Development, 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, DHC hereby ratifies the formation of the Company and the
filing of the Certificate.
WHEREAS, DHC 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 Santa Fe Development, LLC, a Delaware limited liability company.
DHC: Sunterra Developer and Sales Holding Company, a Delaware 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: DHC and its successors and assigns.
Member: DHC, 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 “Sunterra Santa Fe
Development, 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, DHC 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.
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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 Secretary or
any Vice President of DHC 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
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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 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
DHC.
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.
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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 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,
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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 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.
| SUNTERRA DEVELOPER AND SALES HOLDING COMPANY, a Delaware corporation, as Member and Manager |
||||
| By: | /s/ Xxxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxx | |||
| Title: | President | |||
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EXHIBIT A
| MEMBER | INTEREST | |||
SUNTERRA DEVELOPER AND SALES HOLDING COMPANY
|
100 | % | ||
A-1
