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Exhibit 3.105
LIMITED LIABILITY COMPANY AGREEMENT
OF
MERISTAR PLANTATION SHOPPING CENTER COMPANY, L.L.C.
This LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement") is made as
of September 29, 1998, by South Seas Properties Company Limited Partnership, an
Ohio limited partnership having an office at 00000 Xxxxxxxxxx Xxxxx, Xxxxx 000,
Xxxx Xxxxx, Xxxxxxx ("SSPC").
W I T N E S S E T H
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
Florida, 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 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.
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).
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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 the
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 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.
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1.13. "Percentage Interests" shall have the meaning specified
in Section 6.2.
1.14. "Property" shall mean (a) that certain property known
as the Plantation View Shopping Center located at 0000
Xxxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000 and (b) all personal
property situated at such property or used or useful in
connection herewith.
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 "MeriStar Plantation
Shopping Center Company, L.L.C." Xxxxxx Xxxxxx is 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 00000 Xxxxxxxxxx Xxxxx, Xxxxx
000, Xxxx Xxxxx, Xxxxxxx 00000, or at such other place as may
hereafter from time to time be selected by South Seas.
3.2. The Company's registered office shall be at 00000
Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000.
3.3. The registered agent of the Company for service of
process within the State of Florida shall be CT Corporation,
0000 Xxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxx 00000. In the event
that the person or entity at any time acting as such
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agent shall cease to act as such for any reason, South Seas
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 (a) to acquire the
Property and other property incidental to the ownership and operation
of the Property, (b) to hold, own, lease, finance, mortgage, encumber,
alter, dispose of and in all respects deal as owner of the Property,
and (c) to engage in any activities necessary or incidental to the
foregoing. The Company shall not engage in any business other than as
set forth in the foregoing sentence. Nothing in this Agreement shall
prohibit the Company from entering into any guaranties or indemnities
with respect to obligations of entities which are affiliates of South
Seas or from entering into any mortgages, deeds of trust, financing
statements, cross-collateralization or other security agreements with
respect thereto (all of the foregoing being collectively referred to as
"Cross-Collateralization Agreements").
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) SSPC the Property
6.2. The Members' percentage interests in the Company
("Percentage Interests") shall be as follows:
(a) SSPC 100%
6.3. If the Company shall require any additional funds after
the date hereof, as determined by South Seas, 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
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Member shall make any capital contributions or loans to the
Company without the consent of the other Member.
7. Income and Losses; Distributions 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 each Member's capital contributions made in cash
and 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.
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 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.
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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, as
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 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 provision 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 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.
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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)(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)(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
requirement of Section 1.704-1 (b)(2)(ii)(d) of the
Treasury Regulations and shall be interpreted
consistently herewith.
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
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and the Regulatory Allocations to each Member shall
be equal to the net amount that would have been
distributed 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 South Seas. South Seas 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 South Seas. South Seas shall
have the sole right to bind, or otherwise act on behalf of,
the Company. Without limiting the foregoing, South Seas shall
have the right, without consent or approval of South Seas, to
acquire, mortgage or otherwise encumber, and sell or otherwise
dispose of the Property or any portion thereof.
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
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therein; provided, however, that each Member may pledge its interest in
the Company to any lender making a loan secured, in whole or in part,
by a mortgage or deed of trust on the Property.
11. Resignation, Expulsion or Bankruptcy of a Member. In the event of a
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 Florida 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 Upon 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.
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 debts and liabilities of the
Company and the expenses of liquidation;
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13.4.2. to the setting up of any reserves which South
Seas 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
Cross-Collateralization Agreements, 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:
15.1.1. The Company will not assume liability for 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
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,
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appropriate, and customary limited liability company
formalities, including, but not limited to,
maintaining accurate and separate books, records and
account (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
15.1.8. The Company shall not commingle its assets or
funds with those of any other person except as
required under the Cross-Collateralization
Agreements.
16. Notices. Unless otherwise specified in this Agreement, all notices,
demands, elections, requests or other communications (collectively,
"notices") which any Member may desire or to 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.
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. Variety 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.
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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 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 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 to circumstances other than those as to which it is held invalid
or unenforceable, shall not be affected hereby.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
SOUTH SEAS PROPERTIES COMPANY LIMITED
PARTNERSHIP
By: T&T Resorts, L.C., & general partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
Vice President
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LIMITED LIABILITY COMPANY AGREEMENT
OF
MERISTAR PLANTATION SHOPPING CENTER COMPANY, L.L.C..
dated as of September 29, 1998
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