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Exhibit 3.34
LIMITED LIABILITY COMPANY AGREEMENT
OF
EQUISTAR XXXXXX COMPANY, L.L.C.
Dated: February 16, 1996
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LIMITED LIABILITY COMPANY AGREEMENT
OF
EQUISTAR XXXXXX COMPANY, L.L.C.
This LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement") is made as of
February 16, 1996, by and among EQUISTAR HOTEL INVESTORS, L.P., a Delaware
partnership having an office c/o CapStar Hotels, Inc., 0000 Xxxxxxxxx Xxxxxx,
X.X., Xxxxxxxxxx, X.X. 00000 ("EquiStar, L.P. "),and EQUISTAR ACQUISITION
CORPORATION, a Delaware corporation having an office c/o CapStar Hotels, Inc.,
0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000 ("EquiStar Corp. ").
WITNESSETH:
WHEREAS, the parties hereto (collectively, the "Members"and individually,
a "Member")desire to form a limited liability company for the purposes
hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have
the respective meanings set forth below:
1.1 "Act" shall mean the Limited Liability Act of the State of
Delaware, as the same may have been or may be amended.
1.2 "Adjusted Capital Account" shall mean, with respect to any Member,
such Member's Capital Account balance, increased by such Member's share of
Company Minimum Gain and Member Minimum Gain.
1.3 "Code" shall mean the Internal Revenue Code of 1986 as the same has
been and may hereafter be amended.
1.4 "Company" shall have the meaning set forth in Article 2.
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1.5 "Company Minimum Gain" means "partnership minimum gain," as defined
in Treasury Regulations Section 1.704-2(b)(2) and shall be determined in
accordance with Treasury Regulations Section 1.704-2(d).
1.6 "Depreciation" shall mean, with respect to any year or portion
thereof, an amount equal to the depreciation, amortization or other cost
recovery deduction allowable with respect to an asset for Federal income
tax purposes, except that if the Gross Asset Value of the asset differs
from its adjusted tax basis, Depreciation shall be determined in accordance
with the methods used for Federal income tax purposes and shall equal the
amount that bears the same ratio to the Gross Asset Value of such asset as
the depreciation, amortization or other cost recovery deduction computed
for Federal income tax purposes with respect to such asset bears to the
adjusted Federal income tax basis of such asset; provided, however, that if
any such asset that is depreciable or amortizable has an adjusted Federal
income tax basis of zero, the rate of Depreciation shall be as determined
by the Members.
1.7 "Gross Asset Value" shall mean, with respect to any asset, the
asset's adjusted basis for Federal income tax purposes, except that (i) the
Gross Asset Value of any asset contributed to the Company shall be its
gross fair market value at the time of contribution, (ii) the Gross Asset
Value of any asset distributed in kind to any Member (including upon a
liquidation of the Company) shall be the gross fair market value of such
asset, and (iii) the Gross Asset Value of any asset determined pursuant to
clause (i) above shall thereafter be adjusted from time to time by the
Depreciation taken into account with respect to such asset for purposes of
determining Net Profit or Net Loss.
1.8 "Member" shall mean each of the parties to this Agreement and any
other Person to which an interest in the Company is hereafter transferred
and who is admitted to the Company in accordance with the terms of this
Agreement.
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1.9 "Member Minimum Gain" means "partner nonrecourse debt minimum
gain," as defined in Treasury Regulations Section 1.704-2(i)(2) and
determined in accordance with Treasury Regulations Section 1.704-2(i)(3).
1.10 "Member Nonrecourse Debt" means "partner nonrecourse debt," as
defined in Treasury Regulations Section 1.704-2(b)(4).
1.11 "Member Nonrecourse Deductions" means "partner nonrecourse
deductions," as defined in Section 1.704-2(i)(1) of the Treasury
Regulations and shall be determined in accordance with Section
1.704-2(i)(2) of the Treasury Regulations.
1.12 "Net Profit" or "Net Loss" shall mean, with respect to any fiscal
year, the taxable income or loss of the Company as determined for Federal
income tax purposes, with the following adjustments:
1.12.1 Such taxable income or loss shall be increased by the
amount, if any, of tax-exempt income received or accrued by the
Company;
1.12.2 Such taxable income or loss shall be reduced by the amount,
if any, of all expenditures of the Company described in Section
705(a)(2)(B) of the Code, including expenditures treated as described
therein under Section 1.704-1(b)(2)(iv)(i) of the Treasury Regulations;
1.12.3 If the Gross Asset Value of any asset is adjusted pursuant
to clause (ii) of the definition of Gross Asset Value, the amount of
such adjustment shall be taken into account, immediately prior to the
event giving rise to such adjustment, as gain or loss from the
disposition of such asset for purposes of computing Net Profit or Net
Loss;
1.12.4 Gain or loss resulting from any disposition of any asset
with respect to which gain or loss is recognized for Federal income tax
purposes shall be computed by
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reference to the Gross Asset Value of the asset disposed of,
notwithstanding that such Gross Asset Value differs from the adjusted
tax basis of such asset; and
1.12.5 In lieu of the depreciation, amortization, or other cost
recovery deductions taken into account in computing such taxable income
or loss, there shall be taken into account Depreciation for such fiscal
year.
1.13 "Percentage Interests" shall have the meaning specified in Section
6.2.
1.14 "Property" shall mean that certain property presently known as the
Xxxxxx Georgetown Hotel and located at 0000 X Xxxxxx, Xxxxxxxxxx, X.X.
00000, and all personal property situated at such property or used or
useful in connection therewith.
1.15 "Regulatory Allocations" has the meaning ascribed thereto in
subsection 7.3.8.
1.16 "Treasury Regulations" means the rules, regulations, orders and
interpretations of rules, regulations and orders validly promulgated by the
Treasury Department under the Code, whether final, temporary or proposed,
as in effect from time to time.
2. Formation and Name. Members hereby form a limited liability company (the
"Company") pursuant to the provisions of the Act. The business of the Company
shall be conducted under the name "EQUISTAR XXXXXX COMPANY, L.L.C." Xxxx X.
Xxxxxxxx and Xxxxxxx X. Xxxxxxx are hereby authorized to execute and record any
certificate of formation required by the Act and any certificate or application
necessary to qualify the company in any jurisdiction in which it conducts
business.
3. Principal and Registered Offices Agent for Service of Process.
3.1 The principal place of business of the Company, and the address of
the office at which the records of the Company shall be maintained, shall
be in care of CapStar Hotels, Inc., 0000 Xxxxxxxxx Xxxxxx, X.X.,Xxxxx 000,
Xxxxxxxxxx, X.X. 00000, or at such other place as may hereafter from time
to time be selected by the Managing Member.
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3.2 The Company's registered office shall be c/o CapStar Hotels, Inc.,
0000 Xxxxxxxxx Xxxxxx, XX., Xxxxx 000, Xxxxxxxxxx, X.X. 00000.
3.3 The registered agent of the Company for service of process within
the State of Delaware shall be United Corporate Services, 00 Xxxx Xxxxx
Xxxxxx, Xxxxx, Xxxxxxxx 00000. In the event that the person or entity at
any time acting as such agent shall cease to act as such for any reason,
EquiStar, L.P. shall appoint a substitute agent. Such agent shall be the
agent of the Company on which any process, notice or demand required or
permitted by law to be served on the Company may be served.
4. Term. The term of the Company shall commence upon the execution and
delivery of this Agreement and shall continue until terminated by agreement
of the Members or as otherwise provided in this Agreement.
5. Purpose. The purpose of the Company shall be to acquire the Property and
other property incidental to the ownership and operation of the Property, and to
hold, own, finance, mortgage, encumber, alter, dispose of and in all respects
deal as owner of the Property, subject to the terms and conditions of this
Agreement. The purposes of the Company shall not include the acquisition,
improvement, operation, resale, foreclosure or restructuring of any real
property other than the Property, and the Company shall not engage in any
business other than as set forth in the foregoing sentence.
6. Capital Contributions; Percentage Interests.
6.1 Simultaneously with the execution and delivery of this Agreement
the Members are making the following contributions to the capital of the
Company:
(a) EquiStar, L.P. - $ 99.00
(b) EquiStar Corp. - $ 1.00
6.2 The Members' percentage interests in the Company ("Percentage
Interests") shall be as follows:
(a) EquiStar, L.P. - 99%
(b) EquiStar, Corp. - 1%
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6.3 If the Company shall require any additional funds after the date
hereof, as determined by EquiStar, L.P., the Members shall contribute such
funds to the Company in proportion to their respective Percentage
Interests.
6.4 Except as expressly provided in this Article 6, no Member shall be
required to make any capital contributions or loans to the Company and no
Member shall make any capital contributions or loans to the Company without
the consent of the other Member.
7. Income and Losses; Distribution of Available Net Income.
7.1 A separate "Capital Account" shall be maintained for each Member.
Each Member's Capital Account shall be credited with the amount of such
Member's capital contributions made in cash and the fair market value (net
of liabilities assumed or taken subject to) of all property contributed by
such Member and such Member's allocated share of Net Profit, income and
gain of the Company. Each Member's Capital Account shall be debited with
the amount of any cash distributions to such Member and the fair market
value (net of liabilities assumed or taken subject to) of all property
distributed in kind to such Member and such Member's allocated share of Net
Loss of the Company.
7.2 From and after the date of this Agreement, all Net Profit and all
Net Loss of the Company for each year or fraction thereof (determined after
taking into account any allocation for such period under Section 7.3) shall
be credited to the Capital Accounts of the Members in proportion to their
respective Percentage Interests.
7.3 Special Allocations.
7.3.1 Except as otherwise provided in Section 7.3.2, all items of
Company income, gain, deduction and loss shall be allocated among the
Members in the same proportion as they share in the Net Profit and Net Loss
to which such items relate. Any credits against income tax shall be
allocated in accordance with the Members' Percentage Interests.
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7.3.2 Income, gain, loss or deductions of the Company shall, solely
for income tax purposes, be allocated among the Members in accordance with
Section 704(c) of the Code and the Treasury Regulations promulgated
thereunder, so as to take account of any difference between the adjusted
basis of the assets of the Company and their respective Gross Asset Values
in accordance with the traditional method set forth in Section 1.704-3(b)
of the Treasury Regulations.
7.3.3 Notwithstanding any other provision of this Article 7, if
there is a net decrease in Company Minimum Gain during any year, each
Member shall be specially allocated items of income and gain for such year
(and, if necessary, subsequent years) in an amount equal to the portion of
such Member's share of the net decrease in Company Minimum Gain, determined
in accordance with Section 1.704-2(g) of the Treasury Regulations.
Allocations pursuant to the previous sentence shall be made in proportion
to the respective amounts required to be allocated to each Member pursuant
thereto. The items to be so allocated shall be determined in accordance
with Section 1.704-2(f)(6) of the Treasury Regulations. This Section 7.3.3
is intended to comply with the minimum gain chargeback requirement in
Section 1.704-2(f) of the Treasury Regulations and shall be interpreted
consistently therewith.
7.3.4 Notwithstanding any other provisions of this Article 7, if
there is a net decrease in Member Minimum Gain attributable to a Member
Nonrecourse Debt during any year, each Member who has a share of the Member
Minimum Gain attributable to such Member Nonrecourse Debt, determined in
accordance with Section 1.704-2(i)(5) of the Treasury Regulations, shall be
specially allocated items of income and gain for such year (and, if
necessary, subsequent years) in an amount equal to the portion of such
Member's share of the net decrease in Member Minimum Gain attributable to
such Member Nonrecourse Debt, determined in accordance with Section
1.704-2(i)(4) of the Treasury Regulations. Allocations pursuant to the
previous sentence shall
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be made in proportion to the respective amounts required to be allocated to
each Member pursuant thereto. The items to be so allocated shall be
determined in accordance with Section 1.704-2(i)(4) of the Treasury
Regulations. This Section 7.3.4 is intended to comply with the minimum gain
chargeback requirement in Section 1.704-2(i) of the Treasury Regulations
and shall be interpreted consistently therewith.
7.3.5 Nonrecourse Deductions for any year shall be allocated as Net
Loss pursuant to Section 7.2.
7.3.6 Any Member Nonrecourse Deductions for any year shall be
specially allocated to the Member who bears the economic risk of loss with
respect to the Member Nonrecourse Debt to which such Member Nonrecourse
Deductions are attributable in accordance with Section 1.704-2(i)(1) of the
Treasury Regulations.
7.3.7 Notwithstanding any other provision of this Article 7, no
Member shall be allocated in any year of the Company any Net Loss to the
extent such allocation would cause or increase a deficit balance in such
Member's Adjusted Capital Account, taking into account all other
allocations to be made for such year pursuant to this Article 7 and the
reasonably expected adjustments, allocations and distributions described in
Section 1.704-1(b)(2)(ii)(d) of the Treasury Regulations. Any such Net Loss
that would be allocated to a Member (the "Deficit Member") shall instead be
allocated to the other Member. Moreover, if a Deficit Member unexpectedly
receives an adjustment, allocation or distribution described in
Section 1.704-1(b)(2)(ii)(d) of the Treasury Regulations which creates or
increases a deficit balance in such Member's Adjusted Capital Account
(computed after all other allocations to be made for such year pursuant to
this Article 7 have been tentatively made as if this Section 7.3.7 were not
in this Agreement), such Deficit Member shall be allocated items of income
and gain in an amount equal to such deficit balance. This Section 7.3.7 is
intended to comply with the qualified income offset
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requirement of Section 1.704-1(b)(2)(ii)(d) of the Treasury Regulations and
shall be interpreted consistently therewith.
7.3.8 The allocations set forth in Sections 7.3.3 through 7.3.7
(the "Regulatory Allocations") shall be taken into account in allocating
items of income, gain, loss and deduction among the Members so that, to the
extent possible, the net amount of such allocations of other items and the
Regulatory Allocations to each Member shall be equal to the net amount that
would have been allocated to each such Member if the Regulatory Allocations
had not occurred.
7.4 Distributions. All distributions of Company cash and other
property shall be made to the Members in proportion to their respective
Percentage Interests; provided, however, that the provisions of this
Section 7.4 shall not apply upon the liquidation of the Company or upon the
sale of all or substantially all of the Company's assets, it being
understood that in such circumstances the provisions of Section 13.4 shall
apply.
8. Tax Matters. Federal, state and local income tax returns of the
Company shall be prepared and filed, or caused to be prepared and filed, by
EquiStar, L.P. EquiStar, L.P. shall at all times be the "tax matters
partner" of the Company for purposes of Section 6231(a)(7) of the Code.
9. Management and Rights, Duties and Obligations of the Members.
9.1 The management and control of the Company's business shall be
exercised, and all decisions to be made by the Company shall in each case
be made, by EquiStar, L.P. EquiStar, L.P. shall have the sole right to
bind, or otherwise act on behalf of, the Company. Without limiting the
foregoing, EquiStar, L.P. shall have the right, without the consent or
approval of EquiStar Corp., to acquire, mortgage or otherwise encumber, and
sell or otherwise dispose of the Property or any portion thereof.
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9.2 Except as otherwise expressly provided in this Agreement, no
Member shall have the right to resign from the Company or to demand the
return of all or any part of its contribution to the capital of the Company
until the Company has been dissolved and terminated, and then only to the
extent provided in this Agreement, nor shall any Member have the right to
demand or receive property other than cash in return for its contribution.
10. Transfer of Members' Interests. No Member shall sell, assign,
transfer or otherwise dispose of, or mortgage, hypothecate, pledge or
otherwise encumber, or permit or suffer any encumbrance of, all or any part
of its interest in the Company, or any interest therein.
11. Resignation, Expulsion or Bankruptcy of a Member. In the event of
the resignation, expulsion or bankruptcy of any Member, the Company shall
thereupon be dissolved and terminated and the Members shall cause a
Certificate of Cancellation in the form required by the Act to be filed
with the Secretary of State of Delaware when the Company is dissolved.
12. Termination of the Company. Upon the voluntary termination of the
Company upon the consent of the Members, the sale or other transfer of all
or substantially all of the Company's assets or any other termination of
the Company in accordance with the provisions of this Agreement, the
Company shall wind up its affairs and shall then be liquidated as provided
in Article 13.
13. Gain, Loss and Distribution on Liquidation. Upon any termination
of the Company each of the following shall be accomplished:
13.1 The Members shall cause to be prepared a statement setting
forth the assets and liabilities of the Company as of the date of such
termination, and such statement shall be furnished to each Member.
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13.2 The property and assets of the Company, if any, shall be
liquidated as promptly as possible, but in an orderly and businesslike
manner so as not to involve undue sacrifice.
13.3 Any Net Profit or Net Loss realized by the Company upon the sale
or other disposition of the property and assets of the Company shall be
credited or charged to the capital accounts of the Members pursuant to
Section 7.2 or 7.3, as applicable.
13.4 The proceeds of sale and all other assets of the Company shall be
paid and distributed as follows and in the following order of priority:
13.4.1 to the payment of the debts and liabilities of the Company
and the expenses of liquidation;
13.4.2 to the setting up of any reserves which EquiStar, L.P.
determines are reasonably necessary for any contingent or unforeseen
liabilities or obligations of the Company or the Members arising out
of, or in connection with, the Company; and
13.4.3 to the Members in proportion to their respective Capital
Account balances.
14. Further Assurances; Consents and Approvals. Each party to this
Agreement agrees to execute, acknowledge, deliver, file and record such
further certificates, amendments, instruments and documents, and to do all
such other acts and things, as may be required by law, or as may, be
necessary or advisable to carry out the intent and purposes of this
Agreement.
15. Single Asset Entity.
15.1 Except as may be provided to the contrary in the Xxxxxx
Documents (as hereinafter defined), the Company shall at all times
conduct its business and operations in accordance with the following
provisions so as to maintain itself as a single purpose entity:
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15.1.1 The Company will not assume liability for the debts
of any other person, and the Company will not hold itself out as being
liable for the debts of any other person;
15.1.2 None of the liabilities of the Company shall be paid
from the funds of the Members or any other person without the Members
being obligated for such liabilities;
15.1.3 The Company shall not guarantee the debt or the
performance of any obligation of any of its Members or any other
person;
15.1.4 The Company will not pledge any of its assets for the
benefit of any of its Members or any other person, and no person shall
pledge its assets for the benefit of the Company;
15.1.5 The Company shall conduct its affairs strictly in
accordance with this Agreement, and shall observe all necessary,
appropriate, and customary limited liability company formalities,
including, but not limited to, maintaining accurate and separate books,
records and accounts (including, but not limited to, transaction
accounts with any affiliate of the Company);
15.1.6 The books, records, and accounts of the Company will
at all times be maintained in a manner permitting the assets and
liabilities of the Company to be easily separated and readily
distinguished from those of any other person;
15.1.7 The Company will hold itself out to creditors and the
public as a legal entity separate and distinct from any other entity,
and will not hold itself out to the public or to any of its individual
creditors as being a unified entity with assets and liabilities in
common with any other person; and
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15.18 The Company shall not commingle its assets or funds with
those of any other person (except as may be permitted under that
certain Cash Collateral Agreement, dated as of December 21, 1995, among
EquiStar, L.P., Xxxxxx Brothers Holdings Inc. (the "Lender") and Xxxxx
Fargo Bank, National Association), and to be entered into by the
Company.
15.2 The Company shall have the authority to enter into (i) that
certain Master Loan Facility Agreement, dated December 21, 1995, among
EquiStar, L.P., the "Affiliate Borrowers" (as such term is defined
therein) and Lender, (ii) that certain Loan Agreement (the "Loan
Agreement"), dated December 21, 1995, between the Lender and the Company,
and (iii) all Loan Documents (as such term is defined in the Loan
Agreement), and to undertake all obligations set forth in the foregoing
documents (such documents being, collectively, the "Xxxxxx Documents").
15.3 For so long as any amounts remain outstanding under the Loan
Agreement, the Company shall not terminate or amend (i) the provisions of
Sections 5 and 15 hereof or (ii) any other provision of this Agreement in
any way which would endanger the single asset character of the Company.
16. Notices. Unless otherwise specified in this Agreement, all
notices, demands, elections, requests or other communications (collectively
"notices") which any Member may desire or be required to give hereunder
shall be in writing and shall be given by mailing the same by registered or
certified mail, return receipt requested, or by Federal Express or
comparable air courier service, postage prepaid, or by delivering the same
by hand, addressed to the Members at their addresses first set forth above.
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17. Captions. All section and article titles or captions contained in
this Agreement and the table of contents, if any, are for convenience only
and shall not be deemed a part of this Agreement.
18. Variations of Pronouns. All pronouns and all variations thereof
shall be deemed to refer to the masculine, feminine or neuter, singular or
plural, as the identity of the person(s) or entity(ies) may require.
19. Counterparts. This Agreement may be executed in counterparts, each
of which shall constitute an original and all of which, when taken
together, shall constitute one agreement.
20. Governing Law. This Agreement is made pursuant to the provisions
of the Act and shall be construed accordingly.
21. Successors and Assigns. This Agreement shall be binding upon the
parties hereto and their respective successors and permitted assigns and
shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns, but shall not inure to the benefit of, or
be enforceable by, any other person or entity.
22. Invalidity. If any provision or any portion of any provision of
this Agreement, or the application of any such provision or any portion
thereof to any Member or circumstance, shall be held invalid or
unenforceable, the remaining portion of such provision and the remaining
provisions of this Agreement, and the application of such provision or such
portion to a Member
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or to circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
EQUISTAR HOTEL INVESTORS, L.P.,
a Delaware limited partnership
By: Cherwell Investors, Inc.,
a Delaware corporation, general partner
By: /s/ Xxxxxxxx Xxxxxxxxx
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Name: Xxxxxxxx Xxxxxxxxx
Title: Vice President
By: CapStar Executive Investors I, L.L.C.,
a Delaware limited liability company, general partner
By: /s/ Xxxx X. Xxxxxxxx
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Member
EQUISTAR ACQUISITION CORPORATION,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: President
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