1
EXHIBIT 3.44
LIMITED LIABILITY COMPANY AGREEMENT
OF
EQUISTAR ATLANTA LP COMPANY, L.L.C.
Dated: November 9, 1995
2
TABLE OF CONTENTS
Page
1. Definitions .............................................................. 1
2. Formation and Name ....................................................... 6
3. Principal and Registered Offices; Agent for Service of Process ........... 6
4. Term ..................................................................... 7
5. Purpose .................................................................. 7
6. Capital Contributions; Percentage Interests .............................. 7
7. Income and Losses; Distribution of Available Net Income .................. 8
8. Tax Matters ..............................................................13
9. Management and Rights, Duties and Obligations of the Members .............13
10. Transfer of Members' Interests ...........................................14
11. Resignation, Expulsion or Bankruptcy of a Member .........................14
12. Termination of the Company ...............................................14
13. Gain, Loss and Distribution on Liquidation ...............................15
14. Further Assurances; Consents and Approvals ...............................16
15. Notices ..................................................................16
16. Captions .................................................................16
17. Variations of Pronouns ...................................................17
18. Counterparts .............................................................17
19. Governing Law ............................................................17
20. Successors and Assigns ...................................................17
21. Invalidity ...............................................................17
i
3
LIMITED LIABILITY COMPANY AGREEMENT
OF
EQUISTAR ATLANTA LP COMPANY, L.L.C.
This LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement") it made as of
the 9th day of November, 1995, by and between EQUISTAR HOTEL INVESTORS, L.P., a
Delaware partnership having an office c/o CapStar Hotels, Inc., 1010 Wisconsin
Avenue, N.W., Washington, D.C. 20007 ("EquiStar, L.P."), and EQUISTAR
ACQUISITION CORPORATION, a Delaware corporation having an office c/o CapStar
Hotels, Inc., 1010 Wisconsin Avenue, N.W., Washington, D.C. 20007 ("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.
4
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.
1.5 "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
5
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.
1.9 "Member Minimum Gain" means "partner nonrecourse debt minimum
gain," as defined in Treasury Regulations Section 1.704-2(1)(2) and
determined in accordance with Treasury Regulations Section 1.704-2(1)(3).
6
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
7
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 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 Atlanta Renaissance Hotel and located in Atlanta, Georgia, 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
8
Department under the Code, whether final, temporary or proposed, as in
effect from time to time.
2. Formation and Name. The 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 ATLANTA LP COMPANY, L.L.C."
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., 1010 Wisconsin Avenue, N.W., Suite 650,
Washington, D.C. 20007, or at such other place as may hereafter from time
to time be selected by the Managing Member.
3.2 The Company's registered office shall be c/o CapStar Hotels, Inc.,
1010 Wisconsin Avenue, N.W., Suite 650, Washington, D.C. 20007.
3.3 The registered agent of the Company for service of process within
the State of Delaware shall be United Corporate Services, 15 East North
Street, Dover, Delaware 19901. 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.
9
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 (i) to acquire one or more
of the limited partnership interests in Lepercq Atlanta Renaissance Partners,
L.P., a Delaware limited partnership (the "Partnership"), the owner of the
Property, (ii) to hold, own, pledge, grant security interests in, encumber,
dispose of and in all respects deal as owner of such partnership interests,
(iii) in connection with its other activities, to borrow money and otherwise
incur indebtedness and, if EquiStar, L.P. deems it necessary or desirable in
connection with the obtaining of financing for the Company, to guaranty the
obligations of others and (iv) to perform all acts and engage in all activities
incidental to the foregoing. Notwithstanding the foregoing, the Company shall be
subject to all "single-purpose entity" or "limited-purpose entity" requirements
imposed by any loan documents or guaranties to which the Company is a party and,
to the extent required by such documents, such requirements shall be deemed
incorporated in this Section 5.
10
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%
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
11
9
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
12
10
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 1.7043(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
13
11
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.
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.
14
12
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 requirement of
Section 1.704-1(b)(2)(ii)(d) of the Treasury Regulations and shall be
interpreted consistently therewith.
15
13
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.
16
14
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.
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.
17
15
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.
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.
18
16
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.
19
17
15. 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.
16. 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.
17. 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.
18. 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.
19. Governing Law. This Agreement is made pursuant to the provisions of the
Act and shall be construed accordingly.
20
18
20. 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.
21. 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 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/ Brad Bernstein
_____________________________________
Name: Brad Bernstein
Title: Vice President
21
19
By: CapStar Executive Investors I, L.L.C.,
a Delaware limited liability company,
general partner
By: illegible signature
________________________________________
EQUISTAR ACQUISITION CORPORATION,
a Delaware corporation
By:_________________________________________
Name
Title:
22
20
By: CapStar Executive Investors I, L.L.C.,
a Delaware limited liability company,
general partner
By:________________________________________
Member
EQUISTAR ACQUISITION CORPORATION,
a Delaware corporation
By: /s/ Brad Bernstein
_______________________________________
Name: Brad Bernstein
Title: Vice President