EXHIBIT 3.83
OPERATING AGREEMENT
OF
RESORTQUEST HAWAII, LLC
This OPERATING AGREEMENT is made and entered into as of May 31, 2002,
by and between RESORTQUEST HAWAII, LLC, a Hawaii limited liability company (the
"Company"); and RESORTQUEST INTERNATIONAL, INC, a Delaware corporation ("RQI"),
as the sole member of the Company.
ARTICLE I
DEFINITIONS
The following terms used in this Agreement shall have the
meanings described below:
1.1 "ACT" shall mean the Hawaii Uniform Limited Liability Company
Act, Haw. Rev. Stat. ss.ss. 428-101, et seq., as now or hereafter amended.
1.2 "AGREEMENT" means this Operating Agreement, as it may be
amended from time to time, complete with all exhibits and schedules hereto.
1.3 "BOARD OF DIRECTORS" or "BOARD" means the board on which all
of the Directors sit in their capacities as Directors of the Company.
1.4 "CAPITAL CONTRIBUTION" means the amount of money contributed
by RQI to the Company and, if property other than money is contributed, the
initial agreed fair market value of such property, net of liabilities assumed or
taken subject to by the Company.
1.5 "CLAIM" has the meaning set forth in Section 8.3 hereof.
1.6 "COMPANY" means the limited liability company described in the
first paragraph of this Agreement, as such entity may from time to time be
constituted.
1.7 "COVERED PERSON" has the meaning set forth in Section 8.2
hereof.
1.8 "DIRECTORS" means the Managers designated or appointed from
time to time as directors of the Company in accordance with this Agreement. The
Directors, and only the Directors, may be described as "directors" of the
Company.
1.9 "MANAGERS" means the managers of the Company appointed from
time to time in accordance with the Act and this Agreement. The Managers, and
only the Managers, may be described as "officers" of the Company.
1.10 "PERSON" means an individual, firm, corporation, partnership,
limited liability company, association, estate, trust, pension or profit-sharing
plan, or any other entity.
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1.11 "PRINCIPAL OFFICE" means the designated Hawaii office of the
Company at which the records of the Company are kept as required under the Act.
1.12 "REPRESENTATIVES" means the individuals appointed or
designated from time to time as a representative of the Company in accordance
with this Agreement. The Representatives who are neither Directors or Managers
shall not be deemed to be, and shall not be described as, "directors" or
"officers" of the Company, notwithstanding any titles held by the
Representatives.
ARTICLE II
FORMATION
2.1 FORMATION. In connection with the conversion of Hotel
Corporation of the Pacific, Inc., RQT has caused time formation of the Company
pursuant to the Act and in accordance with the terms and conditions of this
Agreement, which is effective immediately after the filing of Articles of
Organization.
2.2 INTENT. For so long as RQI is the sole member of the Company,
it is intended that the Company be operated in a manner consistent with its
treatment as a "sole proprietorship" or a "disregarded entity" for federal and
state income tax purposes.
ARTICLE III
GENERAL PROVISIONS
3.1 COMPANY NAME. The name and trade name of the Company is
"ResortQuest Hawaii, LLC" and "Aston Hotels & Resorts" or such other name or
names as RQI may select from time to time, and its business shall be carried on
in such names with such variations and changes as the Board of Directors deems
necessary to comply with requirements of the jurisdictions in which the
Company's operations are conducted.
3.2 PRINCIPAL OFFICE AND PLACE OF BUSINESS. The Principal Office
of the Company shall be as set forth in the Company's Articles of Organization,
or as otherwise established inside the State of Hawaii by the Board of
Directors. The Company may also have offices at such other places, both within
and without the State of Hawaii, as the Board may determine from time to time or
as the business of the Company may require.
3.3 AGENT FOR SERVICE OF PROCESS. The Company shall maintain in
the State of Hawaii an agent and street address of the agent for service of
process on time Company. The name and street address of the initial agent for
service of process is The Corporation Company, Inc., 1000 Bishop Street,
Honolulu, Hawaii 96813. The Board of Directors may, from time to time, change
the Company's agent for service of process or its address in accordance with the
Act.
3.4 PURPOSE AND POWERS. The Company is formed for the purpose of
engaging in any business or activity permitted by law. The Company shall possess
and may exercise all the powers and privileges granted by the Act or by any
other law or by this Agreement, together with
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any powers incidental thereto, insofar as such powers and privileges are
necessary or convenient to the conduct, promotion or attainment of the business
purposes of the Company.
ARTICLE IV
MEMBER
4.1 MEMBER. RQI is the sole initial member of the Company.
4.2 ACTION BY THE MEMBER. RQI may vote, approve a matter, or take
any action by written consent. RQI shall, from time to time, appoint the
Managers and designate one (1) or more of the Managers as the Directors.
4.3 POWER TO BIND THE COMPANY. RQI (acting in its capacity as
member of the Company) shall have no authority to bind the Company to any third
party with respect to any matter except in accordance with this Agreement or
pursuant to a resolution duly adopted by the Board of Directors.
ARTICLE V
CAPITAL CONTRIBUTIONS
5.1 INITIAL CAPITAL CONTRIBUTION. The Company is the converted
entity resulting from the conversion of Hotel Corporation of the Pacific, Inc.,
and no further or additional initial Capital Contribution is required.
5.2 OTHER CAPITAL CONTRIBUTIONS. Unless RQI otherwise agrees, no
Capital Contributions other than as set forth in Section 5.1 hereof shall be
required.
ARTICLE VI
DISTRIBUTIONS
6.1 AMOUNT AND TIME OF DISTRIBUTIONS. The Board of Directors shall
have power and authority to declare and make dividends or other distributions,
but only as provided by law.
6.2 DISTRIBUTIONS TO THE MEMBER. Distributions shall be made to
RQI.
ARTICLE VII
MANAGEMENT
7.1 MANAGERS.
(a) BOARD OF DIRECTORS. Except as may otherwise be
provided by the Act or by this Agreement, the property, affairs, and business of
the Company shall be managed by or under the direction of the Board of
Directors, and RQI shall have no right to act on behalf of or bind the Company.
The Company shall be operated by the Managers under the supervision and control
of the Board which shall be responsible for policy setting and approving the
overall direction of the Company. The Board shall delegate the responsibility
for the day-to-day
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business and affairs of the Company to the Company's Managers, subject to (i)
the policies that the Board may establish, and (ii) the direction and control of
the Board.
(b) INITIAL MANAGERS. The individuals listed in the
attached Exhibit A shall succeed the sole initial Manager named in the Articles
of Organization and shall be the initial Managers of the Company subject to the
terms of this Agreement. The Managers identified as Directors in such Exhibit A
shall constitute the initial Board of Directors of the Company.
(c) NUMBER AND TENURE. There shall be such number of
Managers, no fewer than one (1), as from time to time shall be appointed or
otherwise fixed by RQI. From time to time, RQI shall appoint the Managers and
shall designate one (1) or more of the Managers as Directors. Each Manager
appointed shall hold office until his or her successor is appointed and shall
qualify or until his or her earlier resignation or removal. Managers need not be
members of the Company.
(d) REMOVAL OF MANAGERS. Any Manager may be removed from
office at any time, with or without cause, by RQI.
(e) VACANCIES. If any vacancies occur on the Board of
Directors or among the Managers, they shall be filled by a majority of the
Directors then in office, though less than a quorum, by RQI, or by a sole
remaining Director. Each Director or Manager so chosen shall hold office until
his or her successor is duly appointed and shall qualify.
(f) RESIGNATION. Any Director or Manager may resign at
any time by giving written notice to the Chief Executive Officer, the President
or the Secretary of the Company, or, in the absence of all of the foregoing, by
notice to any other Director, Manager or Representative of the Company. Unless a
later date is specified in such written notice, a resignation shall take effect
upon delivery to the designated Director, Manager or Representative. It shall
not be necessary for a resignation to be accepted before it becomes effective.
(g) PLACE OF MEETINGS. The Board of Directors may hold
meetings, both regular and special, either within or outside the Company's state
of formation.
(h) REGULAR MEETINGS. The Board of Directors shall meet
at least annually and at other times it shall deem appropriate, at such time and
place as may from time to time be scheduled by the Board and without any
additional notice being required. A copy of every resolution fixing or changing
the time or place of regular meetings shall be mailed to every Director at least
five (5) days before the first meeting held pursuant thereto.
(i) SPECIAL MEETINGS. Special Meetings of the Board of
Directors maybe called by the Chief Executive Officer or the President on at
least one (1) day's actual notice to each Director, if such Special Meeting is
to be conducted by means of conference telephone or similar communications
equipment in accordance with Section 7.1 (m) hereof, and otherwise, upon two (2)
days' actual notice if such notice is delivered personally or sent by telecopy
or telegram. Special Meetings shall be called by the Chief Executive Officer or
the President in like manner and on like notice on the written request of
one-half (1/2) or more of the Directors then
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in office. The purpose of a Special Meeting of the Board of Directors need not
be stated in the notice of such meeting. Any and all business may be transacted
at any special meeting. At any meeting at which every Director shall be present,
even though without any notice, any business may be transacted.
(j) QUORUM AND ADJOURNMENTS. At all meetings of the Board
of Directors, a majority of the total number of Directors shall constitute a
quorum for the transaction of business; provided, however, that when the Board
consists of one (1) Director, then one (1) Director shall constitute a quorum.
If a quorum is not present at any meeting of the Board, the Directors present
may adjourn the meeting, from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
(k) PRESIDING OFFICER. Meetings of the Board of Directors
shall be presided over by the Chief Executive Officer, if any, or if the Chief
Executive Officer is not present (or if there is none), by the President, or, if
time President is not present, by such person as the Board may appoint for the
purpose of presiding at the meeting from which the President is absent.
(1) ACTION BY CONSENT. Any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting if all members of the Board or committee, as the
case maybe, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the Board or committee. Such consent shall
have the same force and effect as the unanimous vote of the Board, except as
provided in Section 7.2(a) hereof.
(m) Telephone Meetings. Members of the Board of
Directors, or any committee designated by the Board, may participate in a
meeting of the Board or any committee by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
(n) COMPENSATION. The Board of Directors, by the
affirmative vote of a majority of the Directors then in office and irrespective
of the personal interest of any Director, shall have authority to establish
reasonable compensation for Directors for their services as such and. may, in
addition, authorize reimbursement of any reasonable expenses incurred by
Directors in connection with their duties.
7.2 COMMITTEES OF DIRECTORS.
(a) COMMITTEES OF DIRECTORS. The Board of Directors may,
by resolution passed by a majority of the whole Board, designate one (1) or more
committees, each committee to consist of one (1) or more Directors of time
Company. Except as provided by law, the Board may designate one (1) or more
persons who are not Directors as additional members of any committee, but such
persons shall be nonvoting members of such committee. The Board may designate
one (1) or more Directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of the committee. In the
absence or disqualification of a member of a committee, the member or members of
the committee present
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at any meeting and not disqualified from voting, whether or not such member or
members constitute a quorum, may unanimously appoint another member of the Board
to act at the meeting in the place of any such absent or disqualified members.
Any such committee, to the extent provided in the resolution of the Board, shall
have and may exercise all the powers and authority of the Board in the
management of the business and affairs of the Company; but no such committee
shall have power or authority to amend the Articles of Organization, adopt an
agreement of merger or consolidation, recommend to the stockholders the sale,
lease or exchange of all or substantially all of the Company's property and
assets, recommend to RQI a dissolution of the Company or a revocation of a
dissolution, or appoint or remove Directors or Managers. Such committee or
committees shall have such name or names as may be determined from time to time
by resolution adopted by the Board.
(b) MINUTES OF COMMITTEE MEETINGS. Unless otherwise
provided in the resolution of the Board of Directors establishing such
committee, each committee shall keep minutes of action taken by it and file the
same with the Secretary of the Company.
(c) QUORUM. A majority of the number of Directors
constituting any committee shall constitute a quorum for the transaction of
business, and the affirmative vote of such Directors present at the meeting
shall be required for any action of the committee; provided, however, that when
a committee of one (1) member is authorized under the provisions of Section
7.2(a) hereof, such one (1) member shall constitute a quorum.
(d) VACANCIES, CHANGES AND DISCHARGE. The Board of
Directors shall have the power at any time to fill vacancies in, to change the
membership of and to discharge any committee.
(e) COMPENSATION. The Board of Directors, by the
affirmative vote of a majority of the Directors then in office and irrespective
of the personal interest of any Director, shall have authority to establish
reasonable compensation for committee members for their services as such and
may, in addition, authorize reimbursement of any reasonable expenses incurred by
committee members in connection with their duties.
7.3 REPRESENTATIVES.
(a) IN GENERAL. The Company may have Representatives, who
need not be employees or members of the Company. The Representatives will have
the rights and be subject to the restrictions provided herein.
(b) DESIGNATIONS. The individuals listed in the attached
Exhibit B shall be the initial Representatives of the Company subject to the
terms of this Agreement. All Representatives and agents of the Company shall
exercise such powers and perform such duties as shall from time to time be
determined by the Board of Directors or by an authorized Manager.
(c) TERM OF OFFICE AND REMOVAl. The Board of Directors
may from time to time choose Representatives and agents. Each Representative
shall hold his or her position until his or her successor is appointed and shall
qualify. Any Representative or agent appointed by the
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Board may be removed, with or without cause, at any time by the affirmative vote
of a majority of the Directors then in office. Any vacancy occurring among the
Representatives may be filled for the unexpired portion of the term by the
Board.
(d) COMPENSATION. The salaries of all Representatives and
agents, if any, of the Company shall be fixed from time to time by the Board of
Directors, and no Representative or agent shall be prevented from receiving such
salary by reason of the fact that he or she is also a Director or a Manager of
the Company.
(e) TRANSFER OF AUTHORITY. Except as prohibited by law,
the Board of Directors shall have the power and authority to delegate its
authority to such committees or members of the Board, Managers, Representatives,
employees, agents, and other representatives of the Company as the Board shall
determine.
(f) GIVING OF BOND. All Managers and Representatives of
the Company, if required to do so by the Board of Directors, shall furnish bonds
to the Company for the faithful performance of their duties, in such penalties
and with such conditions and security as the Board shall require.
7.4 TITLES.
(a) IN GENERAL. Notwithstanding anything to the contrary
in this Agreement, only the Directors shall be described as "directors" of the
Company; and only Managers shall be described as "officers" of the Company. A
Representative or other agent of the Company who is neither a Director or
Manager shall not be deemed to be, and shall not be described as, a "director"
or an "officer"; provided, however, that a Representative or other agent maybe
given titles such as Chief Executive Officer, President, Chief Operating
Officer, Chief Financial Officer, Chief Information Officer, Executive Vice
President, Senior Vice President, Area Vice President, Vice President,
Secretary, Treasurer, Personnel Director, Marketing Manager, or otherwise.
Except for the titles of "Director" and "Manager," no title held by any
individual acting on behalf of the Company shall designate the individual as a
"director," "manager," or "officer" of the Company.
(b) TITLE DESIGNATIONS. RQI, the Board of Directors or an
authorized Manager may give titles to Directors, Managers, Representatives and
other agents of the Company, whether or not any such title is specified in this
Section 7.4.
(c) CHIEF EXECUTIVE OFFICER AND THE PRESIDENT. If there
is no Chief Executive Officer, the President shall be the principal executive
officer of the Company. The duties of the Chief Executive Officer, and of the
President at the direction of the Chief Executive Officer, shall be the
following:
(i) Subject to the direction of the Board of
Directors, to have general charge of the business, affairs and property of the
Company and general supervision over its Managers, Representatives and agents
and, in general, to perform all duties incident to the office
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of the Chief Executive Officer (or President, as the case may be) and to see
that all orders and resolutions of the Board are carried into effect.
(ii) Unless otherwise prescribed by the Board of
Directors, to have full power and authority on behalf of the Company to attend,
act and vote at any meeting of security holders of corporations in which the
Company may hold securities. At such meeting the Chief Executive Officer (or the
President, as the case may be) shall possess and may exercise any and all rights
and powers incident to the ownership of such securities that the Company might
have possessed and exercised if it had been present. The Board may from time to
time confer like powers upon any other person or persons.
(iii) To preside over meetings of the Board of
Directors, to be an ex-officio member of all committees of the Board, and to
have such other duties as may from time to time be prescribed by the Board.
(d) THE EXECUTIVE VICE PRESIDENTS AND OTHER VICE
PRESIDENTS. The Executive Vice President, if any (or in the event there be more
than one (1), the Executive Vice Presidents in the order designated, or in the
absence of any designation, in the order of their appointment), shall, in the
absence of the President or in the event of his or her inability or refusal to
act, perform the duties and exercise the powers of the President and shall
generally assist the President and perform such other duties and have such other
powers as may from time to time be prescribed by the Board of Directors or an
authorized Manager. Any Senior Vice Presidents, Vice Presidents, Assistant Vice
Presidents, and Area Vice Presidents (in the order designated, or in the absence
of any designation, the Senior Vice Presidents in the order of their
appointment, then the Vice Presidents, then the Assistant Vice Presidents and
finally the Assistant Vice Presidents) shall, in the absence of the Executive
Vice Presidents or in the event of the Executive Vice Presidents' inability or
refusal to act, perform the duties and exercise the powers of the Executive Vice
President and shall perform such other duties and have such other powers as may
from time to time be prescribed by the Board of Directors or an authorized
Manager.
(e) THE SECRETARY. The Secretary shall attend all
meetings of the Board of Directors and record all votes and the proceedings of
the meetings in a book to be kept for that purpose and shall perform like duties
for any committees of the Board, if requested by such committee. The Secretary
shall give, or cause to be given, notice of all special meetings of the Board,
and shall perform such other duties as may from time to time be prescribed by
the Board or an authorized Manager, under whose supervision he or she shall act.
(f) THE ASSISTANT SECRETARY. The Assistant Secretary, if
any (or in the event there be more than one (1), the Assistant Secretaries in
the order designated, or in the absence of any designation, in the order of
their appointment), shall, in the absence of the Secretary or in the event of
the Secretary's inability or refusal to act, perform the duties and exercise the
powers of the Secretary and shall perform such other duties and have such other
powers as may from time to time be prescribed by time Board of Directors or an
authorized Manager.
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(g) THE CHIEF FINANCIAL OFFICER AND THE TREASURER. If
there is no Chief Financial Officer, the Treasurer shall be the principal
financial and accounting officer of the Company. The Chief Financial Officer, if
any, shall have the custody of the Company' s funds and other valuable effects,
including securities, and shall keep fall and accurate accounts of receipts and
disbursements in books belonging to the Company and shall deposit all moneys and
other valuable effects in the name and to the credit of the Company in such
depositories as may from time to time be designated by the Board of Directors or
an authorized Manager. The Chief Financial Officer shall disburse the finds of
the Company as may be ordered by the Board, taking proper vouchers for such
disbursements, and shall render to the President and the Board, at regular
meetings of the Board, or whenever they may require it, an account of all of his
or her transactions as Chief Financial Officer and of the financial condition of
the Company. The Treasurer, if any, shall, in the absence of the Chief Financial
Officer or in the event of the Chief Financial Officer's inability or refusal to
act, perform the duties and exercise the powers of the Chief Financial Officer
and shall perform such other duties and have such other powers as may from time
to time be prescribed by the Board of Directors or an authorized Manager.
(h) THE ASSISTANT TREASURER. The Assistant Treasurer, if
any (or in the event there be more than one (1), the Assistant Treasurers in the
order designated, or in the absence of any designation, in the order of their
appointment), shall, in the absence of the Treasurer or in the event of the
Treasurer's inability or refusal to act, perform the duties and exercise the
powers of the Treasurer and shall perform such other duties and have such other
powers as may from time to time be prescribed by the Board of Directors or an
authorized Manager.
7.5 CHECKS, NOTES, ETC. All checks, drafts, bills of exchange,
acceptances, notes or other obligations or orders for the payment of money shall
be signed and, if so required by the Board of Directors, countersigned by at
least one (1) Manager or at least two (2) Representatives, or such other persons
as the Board or an authorized Manager from time to time may designate.
Checks, drafts, bills of exchange, acceptance notes,
obligations and orders for the payment of money made payable to the
Company maybe endorsed for deposit to the credit of the Company with a
duly authorized depository by any Manager, the Chief Financial Officer,
any Representative or such other persons as the Board of Directors or
an authorized Manager from time to time may designate.
7.6 LOANS. No loans and no renewals of any loans shall be
contracted on behalf of the Company except as authorized by the Board of
Directors. When authorized to do so, any one (1) or more Managers or any two (2)
or more Representatives or agents of the Company may effect loans and advances
for the Company from any bank, trust company or other institution or from any
firm, corporation or individual, and for such other evidences of indebtedness of
the Company. When authorized so to do, any one (1) or more Managers or any two
(2) or more Representatives or agents of the Company may pledge, hypothecate or
transfer, as security for the payment of any and all loans, advances,
indebtedness and liabilities of the Company, and any and all stocks, securities
and other personal property at any time held by the Company, and to that end may
endorse, assign and deliver the same. Such authority may be general or confined
to specific instances.
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7.7 CONTRACTS. Except as otherwise provided in this Agreement or
as otherwise directed by the Board of Directors, any one (1) or more Managers or
any two (2) or more Representatives or agents of the Company shall be authorized
to execute and deliver, in the name and on behalf of the Company, all
agreements, bonds, contracts, deeds, mortgages and other instruments, either for
the Company's own account or in a fiduciary or other capacity. The Board, or any
Manager may authorize any two (2) or more Representatives, employees or agents
to execute and deliver, in the name and on behalf of the Company, agreements,
bonds, contracts, deeds, mortgages and other instruments, either for the
Company's own account or in a fiduciary or other capacity. The grant of such
authority by the Board or any Manager may be general or confined to specific
instances.
7.8 RELIANCE BY THIRD PARTIES. Any third party shall be entitled
to rely on all actions of any Manager and any two (2) or more Representatives
and shall be entitled to deal with such Manager or Representatives as if it or
they were the sole party in interest therein, both legally and beneficially. No
third party shall be required to verify whether any consents required by this
Agreement have been obtained by the Manager or Representatives. Every instrument
purporting to be the action of the Company and executed by at least one (1)
Manager or at least two (2) Representatives shall be conclusive evidence in
favor of any person relying thereon or claiming thereunder that, at the time of
delivery thereof, this Agreement was in full force and effect and that the
execution and delivery of that instrument is duly authorized by the Board of
Directors, RQI and the Company.
7.9 ACTIONS REQUIRING APPROVAL OF THE MEMBER. Neither the Board of
Directors or any Manager shall undertake any of the following acts without the
approval of RQI:
(a) Amend time Articles of Organization of the Company;
(b) Enter into any agreement to sell, rent, lease,
exchange or otherwise dispose of all or substantially
all of the property and assets of the Company;
(c) Enter into any agreement or plan of merger,
combination or conversion to which the Company is a
party;
(d) Cause the dissolution of the Company; or
(e) Take any other action which this Agreement
specifically requires the approval of RQI.
ARTICLE VIII
LIMITATION OF LIABILITY; EXCULPATION AND INDEMNIFICATION
8.1 LIMITATION OF LIABILITY. The debts, obligations, and
liabilities of the Company, whether arising in contract, tort, or otherwise, are
solely the debts, obligations, and liabilities of the Company. Neither any
Manager nor RQI shall be personally liable for any debt, obligation, or
liability of the Company solely by reason of being or acting as a manager or a
member.
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8.2 EXCULPATION. Notwithstanding any other provisions of this
Agreement, whether express or implied, or obligation or duty at law or in
equity, none of the Managers, RQI, or the officers, directors, stockholders,
partners, employees, representatives or agents of any of the foregoing, nor any
Representative, employee, representative or agent of the Company (individually,
a "Covered Person" and, collectively, the "Covered Persons") shall be liable to
the Company or any other person for any act or omission relating to the Company
and the conduct of its business, this Agreement, any related document or any
transaction contemplated hereby or thereby, taken or omitted in good faith by a
Covered Person and in the reasonable belief that such act or omission is in or
is not contrary to the best interests of the Company, provided that such act or
omission is not found by a court of competent jurisdiction or an arbitrator or
arbitration panel to constitute fraud, willful misconduct, bad faith, gross
negligence, or breach of fiduciary duty to the Company or RQI.
8.3 INDEMNIFICATION. To the fullest extent permitted by the Act
and applicable law, the Company, its receiver or trustee shall indemnify, defend
and hold harmless each Covered Person from and against any and all losses,
claims, demands, liabilities, expenses, judgments, fumes, settlements and other
amounts arising from any and all claims, demands, actions, suits or proceedings,
civil, criminal, administrative or investigative ("Claims"), in which the
Covered Person may be involved, or threatened to be involved, as a party or
otherwise, by reason of its management of the affairs of the Company or which
relates to or arises out of the Company or its property, business or affairs. A
Covered Person shall not be entitled to indemnification under this Section 8.3
with respect to any Claim in which such Covered Person is found by a court of
competent jurisdiction to have engaged in fraud, willful misconduct, bad faith,
gross negligence, or breach of fiduciary duty to the Company or RQI. Expenses
incurred by a Covered Person in investigating or defending any Claim shall be
paid by the Company in advance of the final disposition of such Claim upon
receipt by the Company of an undertaking by or on behalf of such Covered Person
to repay such amount if it shall be ultimately determined that such Covered
Person is not entitled to be indemnified by the Company in accordance with this
Section 8.3. The Company may maintain insurance at its expense to protect itself
and any Manager, Representative, trustee, employee or agent of the Company or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Company would have
the power to indemnify such person against such expense, liability or loss under
the Act.
ARTICLE IX
NOTICES
9.1 FORM AND DELIVERY.
(a) Whenever, under the provisions of law, or this
Agreement, notice is required to be given to RQI, it shall not be construed to
mean personal notice unless otherwise specifically provided, but such notice may
be given in writing, by mail, telecopy, telegram or messenger addressed to RQI,
at its address as it appears on the records of the Company. If mailed, such
notice shall be deemed to be delivered when deposited in the United States mail,
with first class postage prepaid,
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(b) Whenever, under the provisions of law, or this
Agreement, notice is required to be given to any Director, it shall not be
construed to mean personal notice unless otherwise specifically provided, but
such notice may be given in writing, by mail, telecopy, telegram or messenger
addressed to such Director at the usual place of residence or business of such
Director as in the discretion of the person giving such notice will be likely to
be received most expeditiously by such Director. If mailed, such notice shall be
deemed to be delivered when deposited in the United States mail, with first
class postage prepaid.
9.2 WAIVER. Whenever any notice is required to be given under the
provisions of law, or this Agreement, a written waiver of notice, signed by the
person or persons entitled to said notice, whether before or after time for the
meeting stated in such notice, shall be deemed equivalent to such notice.
ARTICLE X
ACCOUNTING
10.1 FISCAL YEAR AND ACCOUNTING. The fiscal year of the Company
shall be as determined from time to time by the Board of Directors.
10.2 TAX ELECTIONS. RQI shall determine whether to make any
available elections pursuant to the Internal Revenue Code of 1986 (or successor
thereto), as amended from time to time.
10.3 TAX CONTROVERSIES. RQI is authorized and required to represent
the Company (at the Company's expense) in connection with all examinations of
the Company's affairs by tax authorities, including resulting administrative and
judicial proceedings, and to expend Company funds for professional services and
costs associated therewith.
ARTICLE XL
LIQUIDATION AND WINDING UP
11.1 DISSOLUTION. The Company shall dissolve only upon:
(a) the vote of RQI; or
(b) the occurrence of any event which makes it unlawful
for the business of the Company to be carried on or
for RQI to carry on that business in Company.
11.2 LIQUIDATION. Upon dissolution of the Company, the Company
shall be liquidated and its business and affairs wound up by the Managers. All
proceeds from such liquidation shall be paid (to the extent permitted by
applicable law) in the following order:
(a) First, to creditors, including RQI if it is a
creditor, in the order of priority as required by
applicable law;
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(b) Second, to a reserve for contingent liabilities to be
distributed at the time and in the manner as the
Board of Directors determines in its discretion; and
(c) Thereafter, to RQI.
ARTICLE XII
MISCELLANEOUS
12.1 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Hawaii.
12.2 SEVERABILITY. If any provision of this Agreement shall be
conclusively determined by a court of competent jurisdiction to be invalid or
unenforceable to any extent, the remainder of this Agreement shall not be
affected thereby.
12.3 BINDING EFFECT. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and
assigns.
12.4 TITLES AND CAPTIONS. All article, section and paragraph titles
and captions contained in this Agreement are for convenience only and are not a
part of the context hereof.
12.5 NO THIRD PARTY RIGHTS. This Agreement is intended to create
enforceable rights between the parties hereto only, and creates no rights in, or
obligations to, any other Persons whatsoever.
12.6 AMENDMENTS. This Agreement may not be amended or modified, and
none of its provisions maybe waived by any party hereto, except with the written
consent of RQI.
12.7 CREDITORS. None of the provisions of this Agreement shall be
for the benefit of or enforceable by any creditors of the Company.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the day and year first above written.
RESORTQUEST HAWAII, LLC RESORTQUEST INTERNATIONAL, INC.
By: /s/ Kelvin M. Bloom By: /s/ David L. Levine
--------------------- ---------------------
Kelvin M. Bloom David L. Levine
Its President and Manger Its Chairman of the Board
Address: ANA Kalakaua Center Address: 530 Oak Court Drive,
2155 Kalakaua Avenue, Suite 500 Suite 360
Honolulu, Hawaii 968 15-2354 Memphis, Tennessee 38117
Telephone No.: (808) 931-1400 Telephone No.: (901) 762-0600
Telecopier No.:(808) 931-1444 Telecopier No.: (901) 762-0635
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EXHIBIT A
INITIAL MANAGERS OF RESORTQUEST HAWAII~ LLC
LEVINE, David Lee Chief Executive Officer/Director
BLOOM, Kelvin Mark President/Chief Operating Officer/Director
OLIN, James Sidney Senior Vice President/Director
ETTTNGER, Gary Jay Executive Vice President
WARREN, Ronald Wayne Executive Vice President/Chief Financial Officer
KIRK, Beverly Ann Senior Vice President/Secretary
SHIOTA, Yuriko Ruth Senior Vice President
PAAHAO, Joanne Lynette Senior Vice President
BIAINES, Velina Au Vice President
RAY, Karen Marie Assistant Secretary
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EXHIBIT B
INITIAL REPRESENTATIVES OF RESORTQUEST HAWAII, LLC
SELBERG, David Kyle Vice President/Senior Treasurer
MURPHY, John Scott Vice President/Controller
OKADA, Ruth Nobuye Vice President
RAPOZA, Harold Alfred Vice President
OKIMOTO, Cary Yukio Assistant Vice President
SHIM, Loren Richard Assistant Vice President
TSUKANO, Shirley Reyes Assistant Vice President
FELLOWS, Jeny Warren Area Vice President
ROBERTSON, Jerry Wayne Area Vice President
SETTLE, William Howard, Jr. Treasurer
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