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Exhibit 3.99
LIMITED LIABILITY COMPANY AGREEMENT
OF
MERISTAR SUNDIAL BEACH 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
Sundial Beach Resort located at 0000 Xxxxxx Xxxx Xxxxx, Xxxxxxx
Xxxxxx, 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 Sundial Beach 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, not 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 an 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
timed 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., its 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 SUNDIAL BEACH COMPANY, L.L.C..
dated as of September 29, 1998
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