EXHIBIT 10.1
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
APPLE SUITES - MO, LLC
This Amended and Restated Operating Agreement (this "Agreement") is made as
of December 20, 2001 by and between Apple Suites - MO, LLC, a Virginia limited
liability company (the "Company"), and Apple Suites SPE Holding, Inc., a
Virginia corporation (the "Sole Member").
RECITALS
The Company was formed as a Virginia limited liability company and a
wholly-owned subsidiary of Apple Suites, Inc., a Virginia corporation, on June
11, 2001 and was governed by an Operating Agreement dated as of such date (the
"Prior Agreement"). On December 20, 2001, in connection with financing to be
provided by First Union National Bank, Apple Suites, Inc. formed another
wholly-owned subsidiary, Apple Suites SPE Holding, Inc., a Virginia corporation,
which became the Sole Member of the Company as of such date. The Company has no
intention of admitting additional members. Accordingly, the parties desire to
amend, restate and replace the Prior Agreement, on the terms and conditions set
forth below.
ARTICLE I
DEFINITIONS, PURPOSE AND GENERAL MATTERS
1.1 Purpose. The purpose of the Company is to engage in any lawful
activity. Without limiting the scope of the foregoing, the Company is authorized
to own, hold, sell, assign, transfer, operate, lease, mortgage, pledge and
otherwise deal with that certain parcel of real property listed on Exhibit A
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hereto, together with all improvements located thereon (collectively, the
"Property").
1.2 Operating Names. The Company may operate under its own name and under
such assumed names as it deems appropriate or convenient.
1.3 Qualifications in Other Jurisdictions. If required by law, the Company
shall promptly qualify or register to transact business in all jurisdictions in
which it transacts business as a foreign limited liability company.
1.4 Limited Liability. No member or manager of the Company shall be
personally obligated for any debt, obligation or liability of the Company solely
by reason of being a member or acting as a manager, except as may be required by
applicable law. Such elimination of liability or limitation of liability, as the
case may be, shall exist to the maximum extent permitted by the Virginia Limited
Liability Company Act, as it may be amended or replaced from time to time (the
"Act").
ARTICLE II
MEMBERSHIP
2.1 Admission of Additional Members. The Company shall not admit a member
in addition to the Sole Member unless all of the following requirements are
satisfied: (a) the Sole Member grants prior written consent to the admission of
the additional member; (b) the Company and the Sole Member amend or replace this
Agreement as may be necessary or appropriate for the purpose of addressing any
issues raised by joint or multiple ownership of the Company; and (c) each person
or entity who seeks to be admitted as a member of the Company executes the
current Operating Agreement of the Company, as amended or replaced in accordance
with the preceding clause , and makes any required capital contributions to the
Company in full.
2.2 Resignation. The Sole Member shall not resign or withdraw from the
Company, except by operation of law or by transferring its entire interest in
the Company in accordance with this Agreement.
ARTICLE III
MANAGEMENT, PROHIBITED ACTIVITIES AND SEPARATENESS COVENANTS
3.1 Appointment of Manager. The Company shall be managed by a single
manager (the "Manager"). The Manager may be a person or an entity. The initial
Manager of the Company shall be the Sole Member, who shall not resign as the
Manager unless a qualified replacement Manager has agreed to become the Manager
upon such resignation.
3.2 Term of Manager. The Manager's term shall continue until the Manager's
resignation, termination by operation of law or death (as applicable for the
then current Manager), or removal by the Company. The Company shall be entitled,
in its sole discretion, to remove or replace the Manager at any time and for any
reason.
3.3 Authority of Manager. The Manager shall have the authority to act on
behalf of the Company to the maximum extent permitted by the Act. Without
limiting the scope of the foregoing, the Manager shall be entitled to appoint
any officers of the Company (the "Officers") and to establish the authority,
duties, terms and compensation (if any) of the Officers. The parties acknowledge
and agree that the Officers also may hold offices in corporations, including but
not limited to corporations affiliated with the Sole Member.
3.4 Expenses and Reimbursement. The Company shall be responsible for all
expenses, costs and liabilities arising from the management, organization or
operation of the Company in accordance with this Agreement ("Company Expenses").
The Manager and the Officers shall be entitled to receive prompt reimbursement
from the Company to the extent, if any, that they incur any Company Expenses,
unless such Company Expenses arose from a violation of this Agreement, willful
misconduct or knowing violation of criminal law.
3.5 Management Compensation. No salary or other compensation shall be paid
to the Manager for the Manager's actions on behalf of the Company.
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3.6 Certain Prohibited Activities. Notwithstanding any provision hereof to
the contrary, the following shall govern:
(a) The indebtedness of the Company shall consist only of a first lien
mortgage on the Property arising from financing by First Union National Bank
(the "Mortgage"), any other indebtedness permitted under the Mortgage, and
normal trade accounts payable in the ordinary course of business. For so long as
any obligation secured by the Mortgage remains outstanding and not paid in full,
the Company shall not incur, assume, or guaranty any indebtedness not permitted
hereunder.
(b) The Company shall not consolidate or merge with or into any other
entity, or convey or transfer its properties and assets substantially as an
entirety to any entity, unless:
(i) the entity that is formed upon such consolidation, that
survives such merger (if other than the Company), or that acquires by conveyance
or transfer the properties and assets of the Company substantially as an
entirety, shall: (A) be organized and existing under the laws of the United
States of America or any State or the District of Columbia, (B) include in its
organizational documents the same limitations set forth in this Article II and
in Section 2.4 hereof (Separateness Covenants), and (C) expressly assume the due
and timely performance of the Company's obligations; and
(ii) immediately after giving effect to such transaction, no
default or event of default will have occurred under any agreement to which the
Company is a party.
(c) For so long as any obligation secured by the Mortgage remains
outstanding and not paid in full, the Company shall not voluntarily commence a
case with respect to itself, as debtor, under the Federal Bankruptcy Code or any
similar federal or state statute without the unanimous consent of the Sole
Member's Board of Directors. For so long as any obligation secured by the
Mortgage remains outstanding and not paid in full, no material amendment to this
Company Agreement may be made without the prior approval of the mortgagee
holding the Mortgage.
3.7 Separateness Covenants. Notwithstanding any provision hereof to the
contrary, the following shall govern: For so long as any obligation secured by
the Mortgage remains outstanding and not paid in full, in order to preserve and
ensure the Company's separate and distinct identity, in addition to the other
provisions set forth in this Agreement, the Company shall conduct its affairs in
accordance with the following provisions:
(a) It shall establish and maintain an office through which its
business shall be conducted separate and apart from those of the Sole Member and
any affiliate and it shall allocate fairly and reasonably any overhead for
shared office space.
(b) It shall maintain separate records and books of account from those
of the Sole Member and any affiliate.
(c) All actions by the Company shall be authorized by the Sole Member,
who shall observe all necessary formalities in connection with such
authorization.
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(d) It shall not commingle assets with those of the Sole Member or any
affiliate.
(e) It shall conduct its own business in its own name.
(f) It shall maintain financial statements separate from the Sole
Member and any affiliate.
(g) It shall pay any liabilities out of its own funds, including
salaries of any employees, not funds of the Sole Member or any affiliate.
(h) It shall maintain an arm's length relationship with the Sole
Member and any affiliate.
(i) It shall not guarantee or become obligated for the debts of any
other person or entity (including, without limitation, the Sole Member or any
affiliate) and shall not hold out its credit as being available to satisfy the
obligations of others.
(j) It shall use stationery, invoices and checks separate from the
Sole Member and any affiliate.
(k) It shall not pledge its assets for the benefit of any other person
or entity (including, without limitation, the Sole Member or any affiliate).
(l) It shall hold itself out as an entity separate from the Sole
Member and any affiliate.
(m) It shall not make any loans or advances to any third party
(including, without limitation, any affiliate).
(n) It shall comply with its obligations under the agreements and
instruments evidencing the Mortgage.
3.8 Definitions. For purpose of this Article III, the following terms shall
have the indicated meanings:
(a) "affiliate" means, with respect to a specified person or entity:
(i) any person or entity directly or indirectly owning,
controlling or holding with power to vote ten percent (10%) or more of the
outstanding voting securities or interests of the specified entity;
(ii) any person or entity ten percent (10%) or more of whose
outstanding voting securities or interests are directly or indirectly owned,
controlled or held with power to vote by the specified person or entity;
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(iii) any person or entity directly or indirectly controlling,
controlled by or under common control with the specified person or entity;
(iv) any officer, director or partner of the specified person or
entity;
(v) if the specified person or entity is an officer, director or
partner, any company for which the specified person or entity acts in any such
capacity; and
(vi) any close relative or spouse of the specified person.
(b) "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
person or entity, whether through ownership of voting securities, by contract or
otherwise.
(c) "person or entity" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint stock company,
trust (including any beneficiary thereof), unincorporated organization,
government or any agency or political subdivision thereof.
ARTICLE IV
CAPITAL AND DISTRIBUTIONS
4.1 Capital Contributions. The Sole Member shall be entitled, in its sole
discretion, to make capital contributions to the Company from time to time. Any
and all such capital contributions shall be recorded in the books and records of
the Company.
4.2 Loans. Any loans from the Sole Member to the Company shall be made on
commercially reasonable terms and conditions, and shall not be considered
capital contributions.
4.3 Distributions. The Company shall make annual distributions of any cash
amounts that, in the reasonable determination of the Manager, are not necessary
for the Company's operations, expenses or reserves. The Manager is entitled to
authorize more frequent distributions of such cash amounts in the Manager's sole
discretion.
ARTICLE V
TRANSFER OF INTEREST
5.1 Restriction. The Sole Member shall be prohibited from assigning,
selling, exchanging or otherwise transferring its interest in the Company unless
all of the following requirements are satisfied: (a) the proposed transaction
would apply to the entire interest of the Sole Member in the Company; (b) the
proposed transaction would involve one transferee; (c) the prospective
transferee tenders full payment of the required purchase price and executes a
counterpart signature page to this Agreement as a member of the Company; and (d)
the Company receives an opinion from its legal counsel, satisfactory to the
Company in form and substance, confirming that the proposed transaction would
not violate any federal or state securities laws or any other applicable laws.
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5.2 Effect of Transfer. If the Sole Member transfers its entire interest in
the Company in accordance with this Agreement, such transfer shall operate, upon
completion, as the complete resignation or withdrawal of the Sole Member from
the Company.
5.3 Related Matters. Any transaction that is subject to this Article and
that fails in any way to comply with its provisions shall be ineffective and
void.
ARTICLE VI
TAX MATTERS
6.1 Tax Classification. The Company shall be disregarded as an entity
separate from the Sole Member for federal income tax purposes in accordance with
the Internal Revenue Code of 1986, as amended, and section 301.7701-3(b)(1)(ii)
of the Treasury Regulations thereunder (or any successor provisions thereof).
6.2 Tax Filings. The Company shall make such filings as may be required to
maintain its tax classification as a disregarded entity for income tax purposes.
The Company may obtain a federal tax identification number for business
purposes, and such action shall not be construed as a change to the Company's
tax classification as a disregarded entity.
ARTICLE VII
INDEMNIFICATION AND REIMBURSEMENT
7.1 Definitions. As used in this Article, the term "Indemnified Person"
shall refer to the Sole Member, the Manager (if different from the Sole Member)
and the Officers, and each employee, director and officer of the Sole Member or
the Manager.
7.2 Indemnification. The Company shall indemnify each Indemnified Person
against any and all claims, liabilities, costs and expenses (including but not
limited to reasonable legal fees and costs) arising directly or indirectly from
any suit, action, investigation or other proceeding (whether formal or informal)
that (a) is brought or threatened against an Indemnified Person; and (b) is
based on the acts or omissions of such Indemnified Person on behalf of the
Company, unless such acts or omissions violated this Agreement, constituted
willful misconduct or resulted from a knowing violation of criminal law. The
Company shall have no obligation to indemnify an Indemnified Person to the
extent, if any, that the Indemnified Person is entitled to be indemnified by
another source, such as, without limitation, an insurance company.
7.3 Reimbursement. If an Indemnified Person incurs or pays any indemnified
cost, the Company shall reimburse the Indemnified Person for the full amount of
such indemnified cost. Such reimbursement shall be due promptly after the
Company receives (a) a written request for reimbursement from the Indemnified
Person; (b) all information necessary to establish the nature and amount of the
indemnified cost that was incurred or paid by the Indemnified Person; and (c) a
written agreement by the Indemnified Person to repay such reimbursement if the
Company subsequently determines that the Indemnified Person was not
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entitled to indemnification or if the Indemnified Person subsequently receives
reimbursement from another source, such as, without limitation, an insurance
company.
ARTICLE VIII
DISSOLUTION
8.1 Events of Dissolution. The Company shall dissolve upon the occurrence
of any of the following events: (a) the written instruction of the Sole Member;
or (b) any event requiring dissolution under the Act.
8.2 Winding Up of Affairs. Upon the dissolution of the Company, the Manager
shall wind up the affairs of the Company. The Manager shall determine the time,
place, manner and other terms of any sales involving the Company's assets, with
due regard to the activity and the condition of the Company and the relevant
market and economic conditions.
8.3 Final Distributions. Upon the dissolution of the Company, and subject
to the requirements of the Act, the Manager shall distribute the assets of the
Company in the following order of priority:
(a) first, to any creditors of the Company;
(b) second, to known and reasonably estimated costs of dissolution and
winding up;
(c) third, to any reserves established by the Manager, in the sole
discretion thereof, for contingent liabilities of the Company; and
(d) fourth, to the Sole Member.
8.4 Filing of Certificate of Cancellation. Following the winding up of the
Company, the Manager shall be responsible for filing, if necessary, a
Certificate of Cancellation on behalf of the Company with the Virginia State
Corporation Commission, together with any other documents required to terminate
the Company and its legal existence.
ARTICLE IX
ADMINISTRATION
9.1 Offices. The Company's initial registered office and registered agent
shall be as designated in its Articles of Organization. The Manager shall be
entitled to change such designations from time to time, in the Manager's sole
discretion, subject to any requirements of the Act.
9.2 Information and Records. The Company shall keep accurate and complete
information and records at its principal office (the "Company Records").
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9.3 Inspection. Upon prior notice to the Company of at least two (2)
business days, any designated representative of the Sole Member shall be
entitled, during ordinary business hours, to inspect the Company Records and to
copy them at the expense of the Sole Member.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 Governing Law. The laws of the Commonwealth of Virginia (without
regard to any provisions or principles involving choice of law) shall govern
this Agreement and all matters relating to its interpretation or enforcement.
10.2 Other Agreements. Any prior operating agreements with respect to the
Company, whether oral or written, have been merged and integrated into this
Agreement and are superseded by this Agreement.
10.3 Modifications and Waivers. Modifications of this Agreement shall not
be binding, valid or enforceable unless they are approved in writing by each of
the parties. Any modification or waiver of a provision in this Agreement shall
be limited to that provision and the occasion on which it occurred, and shall
not be construed as a modification or waiver with respect to any other provision
or occasion.
10.4 Enforceable Provisions. All provisions in this Agreement are severable
and each valid and enforceable provision shall remain in full force and effect,
regardless of any judicial or other official declaration that certain provisions
are invalid or unenforceable.
10.5 Captions and Headings. Captions and headings are used in this
Agreement for convenience only and shall not affect its interpretation or
enforcement. Terms such as "hereof," "hereby," "hereto," "herein" and
"hereunder" shall be deemed to refer to this Agreement as a whole, rather than
to any particular provision.
10.6 Successors. This Agreement shall be binding upon, and enforceable
against, the parties and all of their permitted assignees and successors in
title or interest.
10.7 Exclusion of Third Party Benefit. This Agreement is not intended for
the benefit of any person or entity who is not a party to this Agreement (such
as, without limitation, a creditor of the Company or of the Sole Member), and no
such person or entity shall have any rights in connection with this Agreement,
whether for enforcement or otherwise.
10.8 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, and all of which shall constitute, when taken
together, a single instrument.
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WITNESS the following signatures:
COMPANY: APPLE SUITES - MO, LLC
------- a Virginia limited liability company
By: Apple Suites SPE Holding, Inc.
Its: Sole Member
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Vice President
SOLE MEMBER: Apple Suites SPE Holding, Inc.
----------- a Virginia corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Vice President
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Exhibit A
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(Property)
The Property consists of that certain parcel of real property, together with all
improvements thereon, located at the following address:
Homewood Suites by Hilton St. Louis-Chesterfield
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