Exhibit 3.116
[Restated electronically for SEC filing purposes only]
AMENDED AND RESTATED
OPERATING AGREEMENT
OF RESORTQUEST AT SUMMIT COUNTY, LLC
This AMENDED AND RESTATED OPERATING AGREEMENT (as amended, restated or
supplemented from time to time, the "Agreement") of RESORTQUEST AT SUMMIT
COUNTY, LLC (hereinafter called the "Company"), dated as of January 26, 2005, is
by and among the undersigned parties.
WHEREAS, the Company was formed under the Colorado Limited Liability
Company Act, as amended from time to time (the "Act");
WHEREAS, the Company's sole member, ResortQuest International, Inc.
(the "Member"), desires to amend and restate the Operating Agreement in its
entirety to reflect (i) the transfer of all of the limited liability company
interests of the Company to the Member, (ii) the continuation of the Company and
the business of the Company, and (iii) such other matters as are contained
herein.
NOW, THEREFORE, in consideration of the promises, covenants and
agreements contained herein, the receipt and sufficiency of which are hereby
acknowledged, the Member hereto agrees as follows:
1. Name. The name of the limited liability company continued hereby is
RESORTQUEST AT SUMMIT COUNTY, LLC
2. Articles. The Member, as an authorized person, within the meaning of
the Act, shall execute, deliver and file, or cause the execution, delivery and
filing of, all articles or certificates required or permitted by the Act to be
filed in the Office of the Secretary of State of the State of Colorado.
3. Purposes. The Company is formed for the object and purpose of
engaging in real estate development, management, marketing and related real
estate activities, any and all activities necessary or incidental to the
foregoing, and engaging in any other lawful act or activity for which limited
liability companies may be formed under the Act.
4. Powers. In furtherance of its purposes, but subject to all of the
provisions of this Agreement, the Company shall have the power and is hereby
authorized to do any and all acts necessary or convenient to or for the
furtherance of the purposes described herein, including all powers, statutory or
otherwise, possessed or conferred upon limited liability companies formed
pursuant to the Act. The Member, and any officer, employer, or attorney of such
constituent member, is hereby designated and confirmed as an authorized person,
within the meaning of the Act, to execute, deliver and file amendments to
Articles of Organization of the Company (and
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any amendments and/or restatements thereof) and any other certificates (and any
amendments and/or restatements thereof) necessary for the Company to qualify to
do business in any jurisdiction in which the Company may wish to conduct
business.
5. Principal Business Office. The principal business office of the
Company shall be located at such location as may hereafter be determined by the
Member.
6. Registered Office and Agent. The address of the registered office of
the Company in the State of Colorado, and the name of the registered agent,
whose business address is identical with the Company's registered office, shall
be as provided in the Company's Articles of Organization, or as otherwise
provided in accordance with the Act. The Member can change the Company's
registered agent and registered office at any time.
7. Term. Except as otherwise provided in Section 21 hereof, the term of
the Company shall be perpetual.
8. Member. The name and the mailing address of the Member is as
follows: ResortQuest at Summit County, LLC, c/o ResortQuest International, Inc.,
One Gaylord Drive, Nashville, TN 37214."
9. Limited Liability. Except as otherwise provided by 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, and no member shall be obligated personally for any such debt,
obligation or liability of the Company solely by reason of being a member of the
Company.
10. Admission of Member: Capital Contributions. The Member has made or
will make contributions to the capital of the Company in the amounts to be
determined in the Member's discretion.
11. Additional Contributions. The Member is not required to make any
additional capital contribution to the Company. However, the Member may at any
time make additional capital contributions to the Company.
12. Allocation of Profits and Losses. The Company's profits and losses
shall be allocated solely to the Member.
13. Distributions. Distributions shall be made to the Member at the
times and in the aggregate amounts determined by the Member. Notwithstanding any
provision to the contrary contained in this Agreement, the Company shall not
make a distribution to the Member on account of its interest in the Company if
such distribution would violate the Act or other applicable law.
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14. Management.
(a) In accordance with the Act, management of the Company shall be
vested in the Member. The Member shall have the power to do any and all acts
necessary, convenient or incidental to or for the furtherance of the purposes
described herein, including all powers, statutory or otherwise, possessed by
members of a limited liability company under the laws of the State of Colorado.
The Member has the authority to bind the Company.
(b) Without limiting the authority of the Member to take any and all
actions on behalf of the Company as set forth in Section 14(a) above or pursuant
to the Act, the Member shall have the right to appoint one or more persons, or
itself, to manage the Company (the "Manager"). Upon the Manager's appointment by
the Member, management of the Company shall be vested in the Manager. To the
extent permitted by law, the Manager shall be authorized to act on behalf of and
to bind the Company in all respects, without any further consent, vote or
approval, and the Manager's powers shall include, without limitation, the
authority to negotiate, complete, execute and deliver any and all agreements,
deeds, instruments, receipts, certificates and other documents on behalf of the
Company, and to take all such other actions on behalf of the Company as the
Manager may consider necessary or advisable in connection with the management of
the Company. The Manager may be removed by the Member at any time with or
without cause.
(c) Persons dealing with the Company are entitled to rely conclusively
upon the power and authority of the Manager as herein set forth.
(d) The delegation of power and authority to the Manager pursuant to
Section 14(b) shall in no way be deemed to restrict the authority of the Member
to take any and all actions on behalf of the Company.
15. Officers. The Member, or if applicable, the Manager, may, from time
to time as it deems advisable, select natural persons who are employees or
agents of the Company and designate them as officers of the Company (the
"Officers") and assign titles (including, without limitation, President, Vice
President, Secretary, and Treasurer) to any such person. Any delegation pursuant
to this Section 15 may be revoked at any time by the Member. An Officer may be
removed with or without cause by the Member.
16. Other Business. The Member may engage in or possess an interest in.
other business ventures of every kind and description, independently or with
others. The Company shall not have any rights in or to such independent ventures
or the income or profits therefrom by virtue of this Agreement.
17. Exculpation and Indemnification. No Member, Manager, or Officer
("Covered Person") shall be liable to the Company or any other person or entity
who has an interest in the Company for any loss, damage or claim actually and
reasonably incurred by reason of any act or omission performed or omitted by
such Covered Person in good faith on behalf of the Company and in a manner
reasonably believed to be within the scope of the authority conferred on such
Covered Person by this Agreement, except that a Covered Person shall be liable
for any such loss, damage or claim incurred by reason of such Covered Person's
willful misconduct. To the
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full extent permitted by applicable law, a Covered Person shall be entitled to
indemnification from the Company for any loss, damage or claim actually and
reasonably incurred by such Covered Person by reason of any act or omission
performed or omitted by such Covered Person in good faith on behalf of the
Company and in a manner reasonably believed to be within the scope of the
authority conferred on such Covered Person by this Agreement, except that no
Covered Person shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by such Covered Person by reason of willful misconduct
with respect to such acts or omissions; provided, however, that any indemnity
under this Section 17 shall be provided out of and to the extent of Company
assets only, and the Member shall not have personal liability on account
thereof. To the extent a Covered Person is entitled to indemnification under
this Section 17, the Company shall advance expenses actually and reasonably
incurred by the Covered Person in defending any threatened, pending, or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, with regard to any act or omission subject to indemnification
pursuant to this Section 17. For purposes of this Section 17, "willful
misconduct" shall mean acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law or any transaction from
which the Covered Person derived an improper personal benefit.
18. Assignments. The Member may at any time assign in whole or in part
its limited liability company interest in the Company. If the Member transfers
all of its interest in the Company pursuant to this Section 18, the transferee
shall be admitted to the Company upon its execution of an instrument signifying
its agreement to be bound by the terms and conditions of this Agreement. Such
admission shall be deemed effective immediately prior to the transfer, and,
immediately following such admission, the transferor Member shall cease to be a
member of the Company.
19. Resignation. The Member may at any time resign from the Company. If
the Member resigns pursuant to this Section 19, an additional member shall be
admitted to the Company, subject to Section 20 hereof, upon such additional
member's execution of an instrument signifying its agreement to be bound by the
terms and conditions of this Agreement. Such admission shall be deemed effective
immediately prior to the resignation, and, immediately following such admission,
the resigning Member shall cease to be a member of the Company.
20. Admission of Additional Members. One or more additional members of
the Company may be admitted to the Company with the written consent of the
Member. Upon the admission to the Company of any additional members, the members
shall cause this agreement to be amended and restated to reflect the admission
of such additional member(s), the initial capital contribution, if any, of such
additional member(s) and the intention of the members to cause the Company to be
classified as a partnership for federal income tax purposes, and to include such
other provisions as the members may agree to reflect the change of status of the
Company from a single member Company to a Company with two or more members.
21. Dissolution.
(a) The Company shall dissolve and its affairs shall be wound up upon
the first to occur of the following: (i) the written consent of the Member, (ii)
at any time there are no
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members of the Company unless, within 90 days of the occurrence of the event
that terminated the continued membership of the last remaining member of the
Company (the "Termination Event"), the personal representative of the last
remaining member agrees in writing to continue the Company and to the admission
to the Company of such personal representative or its nominee or designee as a
Member, effective as of the occurrence of the Termination Event, and such
successor or its nominee or designee shall be admitted upon its execution of an
instrument signifying its agreement to be bound by the terms and conditions of
this Agreement, or (iii) the entry of a decree of judicial dissolution under the
Act.
(b) The bankruptcy of the Member shall not cause the Member to cease to
be a member of the Company and upon the occurrence of such an event, the
business of the Company shall continue without dissolution.
(c) In the event of dissolution, the Company shall conduct only such
activities as are necessary to wind up its affairs (including the sale of the
assets of the Company in an orderly manner), and the assets of the Company shall
be applied in the manner, and in the order of priority, set forth in the Act.
22. Fiscal Year: Tax Matters.
(a) The Fiscal Year of the Company for accounting and tax purposes
shall begin on January 1 and end on December 31 of each year, except for the
short taxable years in the years of the Company's formation and termination and
as otherwise required by the Internal Revenue Code of 1986, as amended (the
"Code").
(b) Proper and complete records and books of account of the business of
the Company shall be maintained at the Company's principal place of business.
The Member acknowledges and agrees that the Company is a limited liability
domestic entity with a single owner and is to be disregarded as a separate
entity for income tax purposes, including, without limitation, as provided in
Treas. Reg. section 7701-3. The Company's books of account shall be maintained
on a basis consistent with such treatment and on the same basis utilized in
preparing the Member's federal income tax return. The Member and its duly
authorized representatives may, for any reason reasonably related to its
interest as a Member of the Company, examine the Company's books of account and
make copies and extracts therefrom at its own expense. The Manager shall
maintain the records of the Company for at least three years following the
termination of the Company or such longer period as required by law or as
directed by the Member.
23. Separability of Provisions. Each provision of this Agreement shall
be considered separable, and if for any reason any provision or provisions
herein are determined to be invalid, unenforceable or illegal under any existing
or future law, such invalidity, unenforceability or illegality shall not impair
the operation of or affect those portions of this Agreement that are valid,
enforceable and legal.
24. Entire Agreement. This Agreement constitutes the entire agreement
of the Member with respect to the subject matter hereof.
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25. Governing Law. This Agreement shall be governed by, and construed
under, the laws of the State of Colorado (without regard to conflict of laws
principles), all rights and remedies being governed by said laws.
26. Amendments. This Agreement may not be modified, altered,
supplemented or amended except pursuant to a written agreement executed and
delivered by the Member.
27. Sole Benefit of Member. The provisions of this Agreement (including
Section 11) are intended solely to benefit the Member and, to the fullest extent
permitted by applicable law, shall not be construed as conferring any benefit
upon any creditor of the Company (and no such creditor shall be a third-party
beneficiary of this Agreement), and no Member shall have any duty or obligation
to any creditor of the Company to make any contributions or payments to the
Company.
MEMBER:
RESORTQUEST INTERNATIONAL, INC.
By: /s/ Carter R. Todd
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Its: Secretary
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