OF SIMILAR AUTHORITY
OR LATITUDE, SUCH MEMBER SHALL BE ENTITLED TO CONSIDER ONLY SUCH INTEREST AND
FACTORS AS IT DESIRES, INCLUDING ITS OWN INTERESTS, AND SHALL HAVE NO DUTY OR
OBLIGATION TO GIVE ANY CONSIDERATION TO ANY INTEREST OF OR FACTORS AFFECTING THE
COMPANY OR THE OTHER MEMBERS, OR (II) IN ITS "GOOD FAITH" OR "REASONABLE
DISCRETION" OR UNDER ANOTHER EXPRESSED STANDARD, THE MEMBER SHALL ACT UNDER SUCH
EXPRESS STANDARD AND SHALL NOT BE SUBJECT TO ANY OTHER OR DIFFERENT STANDARD
IMPOSED BY THIS AGREEMENT OR ANY OTHER AGREEMENT CONTEMPLATED HEREIN OR BY
RELEVANT PROVISIONS OF LAW OR IN EQUITY OR OTHERWISE, PROVIDED THAT NOTHING IN
THIS SECTION 1.2 SHALL BE INTERPRETED TO PURPORT TO ELIMINATE THE DUTY OF GOOD
FAITH AND FAIR DEALING INHERENT IN EVERY CONTRACT
1.3
TERMS GENERALLY.
FOR ALL PURPOSES OF THIS
AGREEMENT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED OR UNLESS THE CONTEXT
OTHERWISE REQUIRES:
(A)
THE TERMS DEFINED IN THIS ARTICLE (OR
ELSEWHERE HEREIN) INCLUDE BOTH THE PLURAL AND THE SINGULAR;
(B)
THE WORDS "HEREIN," "HEREOF" AND "HEREUNDER"
AND OTHER WORDS OF SIMILAR IMPORT REFER TO THIS AGREEMENT AS A WHOLE AND NOT TO
ANY PARTICULAR ARTICLE, SECTION OR OTHER SUBDIVISION; AND
(C)
THE WORDS "INCLUDING" AND "INCLUDE" AND
OTHER WORDS OF SIMILAR IMPORT SHALL BE DEEMED TO BE FOLLOWED BY THE PHRASE
"WITHOUT LIMITATION."
18
ARTICLE 2
THE COMPANY AND ITS BUSINESS
2.1
CONTINUATION OF THE COMPANY.
THE MEMBERS
HAVE APPROVED THIS AGREEMENT AS THE GOVERNING AGREEMENT OF THE COMPANY.
EACH OF
THE
MEMBERS HEREBY AGREES TO CONTINUE THE BUSINESS AND THE COMPANY, IN THE FORM
OF THE COMPANY AND IN ACCORDANCE WITH THE TERMS HEREOF AND PURSUANT TO THE ACT.
2.2
COMPANY NAME.
THE BUSINESS OF THE COMPANY
SHALL BE CONDUCTED UNDER THE NAME OF
"W2005 KAPALUA/GENGATE HOTEL HOLDINGS,
L.L.C." IN THE STATE OF DELAWARE AND UNDER SUCH NAME OR SUCH ASSUMED NAMES AS
THE MEMBERS DEEM NECESSARY OR APPROPRIATE TO COMPLY WITH THE REQUIREMENTS OF ANY
OTHER JURISDICTION IN WHICH THE COMPANY MAY BE REQUIRED TO QUALIFY AS A FOREIGN
LIMITED LIABILITY COMPANY.
LEGAL AND BENEFICIAL TITLE TO ANY PROPERTIES, REAL
AND PERSONAL, WHICH MAY AT ANY TIME DURING THE TERM OF THE COMPANY BE OWNED OR
LEASED BY THE COMPANY SHALL BE HELD IN THE NAME OF THE COMPANY.
2.3
TERM.
THE TERM OF THE COMPANY COMMENCED ON
THE DATE THE CERTIFICATE WAS FILED WITH THE SECRETARY OF STATE OF THE STATE OF
DELAWARE AND SHALL CONTINUE IN FULL FORCE AND EFFECT UNTIL TERMINATED FOLLOWING
DISSOLUTION AS HEREINAFTER PROVIDED.
THE EXISTENCE OF THE COMPANY AS A SEPARATE
LEGAL ENTITY SHALL CONTINUE UNTIL THE CANCELLATION OF THE CERTIFICATE AS
PROVIDED IN THE ACT.
2.4
FILING OF CERTIFICATE AND AMENDMENTS.
THE
CERTIFICATE WAS FILED WITH THE SECRETARY OF STATE OF THE STATE OF DELAWARE AND
THE MEMBERS AGREE THAT ALAN KAVA WAS THE AUTHORIZED SIGNATORY FOR SUCH PURPOSE
IN ACCORDANCE WITH THE MEANING OF SECTION 18-204 OF THE ACT.
THE MEMBERS HEREBY
AGREE TO EXECUTE AND FILE ANY REQUIRED AMENDMENTS TO THE CERTIFICATE