1
EXHIBIT 3.107
LIMITED LIABILITY COMPANY AGREEMENT
OF
MERISTAR SONG OF THE SEA 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 ("SSPC") having an office at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
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.
1
2
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).
2
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 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
Deprecation for such fiscal year.
3
4
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
Song of the Sea located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 Song of the Sea
Company, L.L.C." ▇▇▇▇▇▇ ▇▇▇▇▇▇ 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
3.3. The registered agent of the Company for service of process
within the State of Florida shall be CT Corporation, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇. In the event that
the person or entity at any time acting as such agent shall
cease to act as such for any reason, South Seas shall appoint
a
4
5
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 to 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.
5
6
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; 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
6
7
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 Members 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
7
8
Treasury Regulations. This Section 7.3.4 is intended
to comply with the minimum gain chargeback
requirement in Section 1704-2(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)(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.
8
9
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 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
9
10
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 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.
10
11
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;
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:
11
12
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, 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.
12
13
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.
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. Invalid. 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
13
14
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
PARTNERS
By: T&T Resorts, L.C., its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
14
15
LIMITED LIABILITY COMPANY AGREEMENT
OF
MERISTAR SONG OF THE SEA COMPANY, L.L.C..
dated as of September 29, 1998
15