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Exhibit 3.48
LIMITED LIABILITY COMPANY AGREEMENT
OF
CAPSTAR C.S. COMPANY, L.L.C.
This LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement") is made as
of October 1, 1996, by and among CAPSTAR MANAGEMENT COMPANY, L.P., a Delaware
limited partnership having an office at 1010 Wisconsin Avenue, N.W., Washington,
D.C. 20007 ("CapStar"), and EQUISTAR ACQUISITION CORPORATION, a Delaware
corporation having an office c/o CapStar Management Company, L.P., 1010
Wisconsin Avenue, N.W., Washington, D.C. 20007 ("EquiStar").
WITNESSETH:
WHEREAS, the parties hereto (collectively, the "Members" and
individually, a "Member") desire to form a limited liability company for the
purposes hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall
have the respective meanings set forth below:
1.1 "Act" shall mean the Limited Liability Act of the State of
Delaware, as the same may have been or may be amended.
1.2 "Adjusted Capital Account" shall mean, with respect to any
Member, such Member's Capital Account balance, increased by such
Member's share of Company Minimum Gain and Member Minimum Gain.
1.3 "Code" shall mean the Internal Revenue Code of 1986 as the
same has been and may hereafter be amended.
1.4 "Company" shall have the meaning set forth in Article 2.
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1.5 "Company Minimum Gain" means "partnership minimum gain,"
as defined in Treasury Regulations Section 1.704-2(b)(2) and shall be
determined in accordance with Treasury Regulations Section 1.704-2(d).
1.6 "Depreciation" shall mean, with respect to any year or
portion thereof, an amount equal to the depreciation, amortization or
other cost recovery deduction allowable with respect to an asset for
Federal income tax purposes, except that if the Gross Asset Value of
the asset differs from its adjusted tax basis, Depreciation shall be
determined in accordance with the methods used for Federal income tax
purposes and shall equal the amount that bears the same ratio to the
Gross Asset Value of such asset as the depreciation, amortization or
other cost recovery deduction computed for Federal income tax purposes
with respect to such asset bears to the adjusted Federal income tax
basis of such asset; provided, however, that if any such asset that is
depreciable or amortizable has an adjusted Federal income tax basis of
zero, the rate of Depreciation shall be as determined by the Members.
1.7 "Gross Asset Value" shall mean, with respect to any asset,
the asset's adjusted basis for Federal income tax purposes, except that
(i) the Gross Asset Value of any asset contributed to the Company shall
be its gross fair market value at the time of contribution, (ii) the
Gross Asset Value of any asset distributed in kind to any Member
(including upon a liquidation of the Company) shall be the gross fair
market value of such asset, and (iii) the Gross Asset Value of any
asset determined pursuant to clause (i) above shall thereafter be
adjusted from time to time by the Depreciation taken into account with
respect to such asset for purposes of determining Net Profit or Net
Loss.
1.8 "Member" shall mean each of the parties to this Agreement
and any other Person to which an interest in the Company is hereafter
transferred and who is admitted to the Company in accordance with the
terms of this Agreement.
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1.9 "Member Minimum Gain" means "partner nonrecourse debt
minimum gain," as defined in Treasury Regulations Section 1.704-2(i)(2)
and determined in accordance with Treasury Regulations Section
1.704-2(i)(3).
1.10 "Member Nonrecourse Debt" means "partner nonrecourse
debt," as defined in Treasury Regulations Section 1.704-2(b)(4).
1.11 "Member Nonrecourse Deductions" means "partner
nonrecourse deductions," as defined in Section 1.704-2(i)(1) of the
Treasury Regulations and shall be determined in accordance with Section
1.704-2(i)(2) of the Treasury Regulations.
1.12 "Net Profit" or "Net Loss" shall mean, with respect to
any fiscal year, the taxable income or loss of the Company as
determined for Federal income tax purposes, with the following
adjustments:
1.12.1 Such taxable income or loss shall be increased
by the amount, if any, of tax-exempt income received or
accrued by the Company;
1.12.2 Such taxable income or loss shall be reduced
by the amount, if any, of all expenditures of the Company
described in Section 705(a)(2)(B) of the Code, including
expenditures treated as described therein under Section
1.704-1(b)(2)(iv)(i) of the Treasury Regulations;
1.12.3 If the Gross Asset Value of any asset is
adjusted pursuant to clause (ii) of the definition of Gross
Asset Value, the amount of such adjustment shall be taken into
account, immediately prior to the event giving rise to such
adjustment, as gain or loss from the disposition of such asset
for purposes of computing Net Profit or Net Loss;
1.12.4 Gain or loss resulting from any disposition of
any asset with respect to which gain or loss is recognized for
Federal income tax purposes shall be computed by reference to
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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 (a) that certain property known as
the Holiday Inn and located at 805 Popes Bluff Trail, Colorado Springs,
Colorado and (b) all personal property situated at such property or
used or useful in connection therewith.
1.15 "Regulatory Allocations" has the meaning ascribed thereto
in subsection 7.3.8.
1.16 "Treasury Regulations" means the rules, regulations,
orders and interpretations of rules, regulations and orders validly
promulgated by the Treasury Department under the Code, whether final,
temporary or proposed, as in effect from time to time.
2. Formation and Name.
Members hereby form a limited liability company (the "Company")
pursuant to the provisions of the Act. The business of the Company shall be
conducted under the name "CAPSTAR C.S. COMPANY, L.L.C." Paul W. Whetsell and
William H. Diamond are hereby authorized to execute and record any certificate
of formation required by the Act and any certificate or application necessary to
qualify the company in any jurisdiction in which it conducts business.
3. Principal and Registered Offices; Agent for Service of Process.
3.1 The principal place of business of the Company, and the
address of the office at which the records of the Company shall be
maintained, shall be 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 CapStar.
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3.2 The Company's registered office shall be at 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, CapStar 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, operate, 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 CapStar Hotel Company or from entering into any mortgages, deeds
of trust, financing statements, cross-collateralization or other security
arrangements with respect thereto (all of the forgoing being collectively
referred to as "Cross-Collateralization Agreements").
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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) CapStar $ 99.00
(b) EquiStar $ 1.00
6.2 The Members' percentage interests in the Company
("Percentage Interests") shall be as follows:
(a) CapStar 99%
(b) EquiStar 1%
6.3 If the Company shall require any additional funds after
the date hereof, as determined by CapStar, the Members shall contribute
such funds to the Company in proportion to their respective Percentage
Interests.
6.4 Except as expressly provided in this Article 6, no Member
shall be required to make any capital contributions or loans to the
Company and no Member shall make any capital contributions or loans to
the Company without the consent of the other Member.
7. Income and Losses; Distribution of Available Net Income.
7.1 A separate "Capital Account" shall be maintained for each
Member. Each Member's Capital Account shall be credited with the amount
of such Member's capital contributions made in cash and the fair market
value (net of liabilities assumed or taken subject to) of all property
contributed by such Member and such Member's allocated share of Net
Profit, income and gain of the Company. Each Member's Capital Account
shall be debited with the amount of any cash distributions to such
Member and the fair market value (net of liabilities assumed or taken
subject to) of all property distributed in kind to such Member and such
Member's allocated share of Net Loss of the Company.
7.2 From and after the date of this Agreement, all Net Profit
and all Net Loss of the Company for each year or fraction thereof
(determined after taking into account any allocation for
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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 the
Treasury Regulations promulgated thereunder, so as to take
account of any difference between the adjusted basis of the
assets of the Company and their respective Gross Asset Values
in accordance with the traditional method set forth in Section
1.704-3(b) of the Treasury Regulations.
7.3.3 Notwithstanding any other provision of this
Article 7, if there is a net decrease in Company Minimum Gain
during any year, each Member shall be specially allocated
items of income and gain for such year (and, if necessary,
subsequent years) in an amount equal to the portion of such
Member's share of the net decrease in Company Minimum Gain,
determined in accordance with Section 1.704-2(g) of the
Treasury Regulations. Allocations pursuant to the previous
sentence shall be made in proportion to the respective amounts
required to be allocated to each Member pursuant thereto. The
items to be so allocated shall be determined in accordance
with Section 1.704-2(f)(6) of the Treasury Regulations. This
Section 7.3.3 is intended to comply with the minimum gain
chargeback requirement in Section 1.704-2(f) of the Treasury
Regulations and shall be interpreted consistently therewith.
7.3.4 Notwithstanding any other provisions of this
Article 7, if there is a net decrease in Member Minimum Gain
attributable to a Member Nonrecourse Debt during any year,
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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.
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
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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.
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
CapStar. CapStar 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 CapStar. CapStar shall have the sole right to bind, or
otherwise act on behalf of, the Company. Without limiting the
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foregoing, CapStar shall have the right, without the consent or
approval of EquiStar, 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; 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
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:
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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 the debts and liabilities of
the Company and the expenses of liquidation;
13.4.2 to the setting up of any reserves which
CapStar 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.
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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 the
debts of any other person, and the Company will not hold
itself out as being liable for the debts of any other person;
15.1.2 None of the liabilities of the Company shall
be paid from the funds of the Members or any other person
without the Members being obligated for such liabilities;
15.1.3 The Company shall not guarantee the debt or
the performance of any obligation of any of its Members or any
other person;
15.1.4 The Company will not pledge any of its assets
for the benefit of any of its Members or any other person, and
no person shall pledge its assets for the benefit of the
Company;
15.1.5 The Company shall conduct its affairs strictly
in accordance with this Agreement, and shall observe all
necessary, appropriate, and customary limited liability
company formalities, including, but not limited to,
maintaining accurate and separate books, records and accounts
(including, but not limited to, transaction accounts with any
affiliate of the Company);
15.1.6 The books, records, and accounts of the
Company will at all times be maintained in a manner permitting
the assets and liabilities of the Company to be easily
separated and readily distinguished from those of any other
person;
15.1.7 The Company will hold itself out to creditors
and the public as a legal entity separate and distinct from
any other entity, and will not hold itself out to the public
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or to any of its individual creditors as being a unified entity with
assets and liabilities in common with any other person; and
15.18 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 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. Variations of Pronouns. All pronouns and all variations thereof
shall be deemed to refer to the masculine, feminine or neuter, singular or
plural, as the identity of the person(s) or entity(ies) may require.
19. Counterparts. This Agreement may be executed in counterparts, each
of which shall constitute an original and all of which, when taken together,
shall constitute one agreement.
20. Governing Law. This Agreement is made pursuant to the provisions of
the Act and shall be construed accordingly.
21. Successors and Assigns. This Agreement shall be binding upon the
parties hereto and their respective successors and permitted assigns and shall
inure to the benefit of the parties hereto and their respective successors and
permitted assigns, but shall not inure to the benefit of, or be enforceable by,
any other person or entity.
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22. Invalidity. If any provision or any portion of any provision of
this Agreement, or the application of any such provision or any portion thereof
to any Member or circumstance, shall be held invalid or unenforceable, the
remaining portion of such provision and the remaining provisions of this
Agreement, and the application of such provision or such portion to a Member
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or to circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
CAPSTAR MANAGEMENT COMPANY, L.P.
By: CapStar Hotel Company,
general partner
By: /s/ Illegible
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EQUISTAR ACQUISITION CORPORATION,
By: /s/ Illegible
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LIMITED LIABILITY COMPANY AGREEMENT
OF
CAPSTAR C.S. COMPANY, L.L.C.
Dated: As of October 1, 1996
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