Exhibit 3.106
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
OPRYLAND HOTEL NASHVILLE, LLC
WHEREAS, prior to the execution of this Amended and Restated Limited
Liability Company Agreement (the "Agreement"), Opryland Hotel Nashville, LLC, a
Delaware limited liability company (the "Company") has been governed by that
certain Amended and Restated Limited Liability Company Agreement, dated March
27, 2001 (the "Old LLC Agreement");
WHEREAS, pursuant to Sections 11 and 30 of the Old LLC Agreement, upon
repayment of the Obligations (as such term is defined in the Old LLC Agreement),
the Sole Member of the Company has the power and authority to amend the Old LLC
Agreement and remove the Independent Manager (as such term is defined in the Old
LLC Agreement); and
WHEREAS, the Obligations have been repaid by the Company.
NOW, THEREFORE, the Independent Manager is hereby removed and the
limited liability company agreement of the Company is hereby amended and
restated as follows:
THE UNDERSIGNED is executing this Agreement for the purpose of
continuing a limited liability company pursuant to the provisions of the
Delaware Limited Liability Company Act, 6 Del. C. Sections 18-101 et seq. and
Section 18-214 (the "Delaware Act"), effective upon repayment of the
Obligations, and does hereby certify as follows:
1. NAME; FORMATION. The name of the Company is "Opryland Hotel
Nashville, LLC", or such other name as the Members may from time to time
hereafter designate. The Company shall be formed upon the execution and filing
by any Member (each of which is hereby authorized to take such action) or any
other authorized person of a certificate of formation of the Company with the
Secretary of State of the State of Delaware setting forth the information
required by Section 18-201 of the Delaware Act.
2. DEFINITIONS; RULES OF CONSTRUCTION. In addition to terms otherwise
defined herein, the following terms are used herein as defined below:
"Capital Contribution" means, with respect to any Member, the
amount and/or agreed value of money or property deemed contributed
by such Member to the Company in accordance with Section 8 hereof.
"Interest" means the ownership interest of a Member in the
Company (which shall be considered personal property for all
purposes), consisting of (i) such Member's Percentage Interest in
profits, losses, allocations and distributions, (ii) such Member's
right to vote or grant or withhold consents with respect to
Company matters as provided herein or in the
Delaware Act and (iii) such Member's other rights and
privileges as herein provided.
"Majority in Interest of the Members" means Members whose
Percentage Interests aggregate to greater than fifty percent of
the Percentage Interests of all Members.
"Members" means the initial Member and all other persons or
entities admitted as additional or substituted Members pursuant to
this Agreement, so long as they remain Members. Reference to a
"Member" means any one of the Members.
"Percentage Interest" means a Member's share of the profits
and losses of the Company and the Member's percentage right to
receive distributions of the Company's assets. The Percentage
Interest of each Member shall initially be the percentage set
forth opposite such Member's name on Schedule I hereto, as such
Schedule shall be amended from time to time in accordance with the
provisions hereof. The combined Percentage Interest of all Members
shall at all times equal 100%.
Words used herein, regardless of the number and gender used, shall be
deemed and construed to include any other number, singular or plural, and any
other gender, masculine, feminine or neuter, as the context requires, and, as
used herein, unless the context clearly requires otherwise, the words "hereof,"
"herein" and "hereunder" and words of similar import shall refer to this
Agreement as a whole and not to any particular provisions hereof.
3. PURPOSE. The purpose of the Company shall be to engage in any lawful
business that may be engaged in by a limited liability company organized under
the Delaware Act, as such business activities may be determined by the Members
from time to time.
4. OFFICES.
(a) The principal office of the Company, and such additional
offices as the Members may determine to establish, shall be located at
such place or places inside or outside the State of Delaware as the
Members may designate from time to time.
(b) The registered office of the Company in the State of
Delaware is located at c/o The Corporation Trust Company, 1209 Orange
Street, Wilmington, Delaware 19801. The registered agent of the Company
for service of process at such address is The Corporation Trust
Company.
5. MEMBERS. The name and business or residence address of each Member
of the Company are as set forth on Schedule I attached hereto, as the same may
be amended from time to time.
6. TERM. The Company shall continue until dissolved and terminated in
accordance with Section 14 of this Agreement.
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7. MANAGEMENT OF THE COMPANY.
(a) The duties and powers of the Members may be exercised by a
Majority in Interest of the Members (or by any Member acting pursuant
to authority expressly delegated by a Majority in Interest of the
Members). No person shall have authority to act for or bind the Company
except with the written authorization of the Company, such
authorization to be approved by a Majority in Interest of the Members.
(b) The Members shall have the right to manage the business of
the Company, and shall have all powers and rights necessary,
appropriate or advisable to effectuate and carry out the purposes and
business of the Company. The Members may appoint, employ or otherwise
contract with any persons or entities for the transaction of the
business of the Company or the performance of services for or on behalf
of the Company, and the Members may delegate to any such person (who
may be designated an officer of the Company) or entity such authority
to act on behalf of the Company as the Members may from time to time
deem appropriate.
(c) Any Member, when expressly authorized by a Majority in
Interest of the Members, may execute and file on behalf of the Company
with the Secretary of State of the State of Delaware any certificates
of correction of, or certificates of amendment to, the Company's
certificate of formation, one or more restated or amended and restated
certificates of formation and any other certificate or filings provided
for in the Delaware Act.
8. CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS; ADMINISTRATIVE MATTERS.
(a) The Members have contributed to the Company the cash or
property set forth in the Company's records. The Members may make
additional contributions of cash (or promissory obligations), property
or services as agreed to by a Majority in Interest of the Members from
time to time. Except as otherwise agreed by all Members, the Members
shall have no obligation to make any further capital contributions to
the Company. Persons or entities hereafter admitted as Members of the
Company shall make such contributions of cash (or promissory
obligations), property or services to the Company as shall be
determined by a Majority in Interest of the Members, at the time of
each such admission.
(b) At any time that the Company has more than one Member, it
is the intention of the Members that the Company shall be taxed as a
"partnership" for federal, state, local and foreign income tax
purposes, and the following provisions shall apply:
(i) A single, separate capital account shall be
maintained for each Member. Each Member's capital account
shall be credited with the amount of money and the fair market
value of property (net of any liabilities secured by such
contributed property that the Company assumes or takes subject
to) contributed by that Member to the Company; the amount of
any Company liabilities assumed by such Member (other than in
connection with a distribution of Company property), and such
Member's distributive share of Company profits (including
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tax exempt income). Each Member's capital account shall be
debited with the amount of money and the fair market value of
property (net of any liabilities that such Member assumes or
takes subject to) distributed to such Member; the amount of
any liabilities of such Member assumed by the Company (other
than in connection with a contribution); and such Member's
distributive share of Company losses (including items that may
be neither deducted nor capitalized for federal income tax
purposes).
(ii) Notwithstanding any provision of this Agreement
to the contrary, each Member's capital account shall be
maintained and adjusted in accordance with the Internal
Revenue Code of 1986, as amended (the "Internal Revenue
Code"), and the regulations thereunder (the "Regulations"),
including, without limitation, (x) the adjustments permitted
or required by Internal Revenue Code Sections 704(b) and, to
the extent applicable, the principles expressed in Internal
Revenue Code Section 704(c) and (y) adjustments required to
maintain capital accounts in accordance with the "substantial
economic effect test" set forth in the Regulations under
Internal Revenue Code Section 704(b).
(iii) Any Member, including any substitute Member,
who shall receive an Interest (or whose Interest shall be
increased) by means of a transfer to him of all or a part of
the Interest of another Member, shall have a capital account
that reflects the capital account associated with the
transferred Interest (or the applicable percentage thereof in
case of a transfer of a part of an Interest).
(iv) The fiscal year of the Company shall be a
calendar year. The books and records of the Company shall be
maintained in accordance with generally accepted accounting
principles and Section 704(b) of the Internal Revenue Code and
the Regulations.
(v) All items of Company income, gain, loss,
deduction, credit or the like shall be allocated among the
Members in accordance with their respective Percentage
Interests as set forth in Schedule I.
(c) At any time that the Company has only one Member, it is
the intention of the Member that the Company shall be disregarded for
federal, state, local and foreign income tax purposes and that all
items of income, gain, loss, deduction, credit or the like of the
Company shall be treated as items of income, gain, loss, deduction,
credit or the like of the Member.
9. ASSIGNMENTS OF COMPANY INTEREST. The Members shall amend Schedule I
hereto from time to time to reflect transfers of Interests.
10. RESIGNATION. No Member shall have the right to resign from the
Company except with the consent of all of the other Members and upon such terms
and conditions as may be specifically agreed upon between such other Members and
the resigning Member. The provisions hereof with respect to distributions upon
resignation are exclusive, and no Member
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shall be entitled to claim any further or different distribution upon
resignation under Section 18-604 of the Delaware Act or otherwise.
11. ADDITIONAL MEMBERS. The Members, acting by a Majority in Interest
of the Members, shall have the right to admit additional Members upon such terms
and conditions, at such time or times, and for such Capital Contributions as
shall be determined by a Majority in Interest of the Members; and in connection
with any such admission, the Members shall amend Schedule I hereof to reflect
the name and address of the additional Member and any agreed upon changes in
Percentage Interests; provided, that without the consent of a Member, such
Member's Percentage Interest in the Company shall not be reduced as a result of
the admission of a new Member.
12. DISTRIBUTIONS. Distributions of cash or other assets of the Company
shall be made at such times and in such amounts as the Members acting by a
Majority in Interest of the Members may determine. Distributions shall be made
to (and profits and losses shall be allocated among) Members pro rata in
accordance with their respective Percentage Interests.
13. RETURN OF CAPITAL. No Member shall have any liability for the
return of any Member's Capital Contribution, which Capital Contribution shall be
payable solely from the assets of the Company.
14. DISSOLUTION. The Company shall be dissolved and its affairs wound
up and terminated upon the first to occur of the following:
(a) The determination by a Majority in Interest of all Members
to dissolve the Company; or
(b) An event causing a dissolution of the Company under
Section 18-801(a)(4) or (5) of the Delaware Act.
15. LIMITATION ON LIABILITY. The debts, obligations and liabilities of
the Company, whether arising in contract, tort or otherwise, shall be solely the
debts, obligations and liabilities of the Company, and no Member of the Company
shall be obligated personally for any such debt, obligation or liability of the
Company solely by reason of being a Member.
16. STANDARD OF CARE; INDEMNIFICATION OF MEMBERS, OFFICERS, EMPLOYEES
AND AGENTS.
(a) No Member shall have any personal liability whatsoever to
the Company or any other Member on account of such Member's status as a
Member or by reason of such Member's acts or omissions in connection
with the conduct of the business of the Company; provided, however,
that nothing contained herein shall protect any Member against any
liability to the Company or the Members to which such Member would
otherwise be subject by reason of (i) any act or omission of such
Member that involves actual fraud, willful misconduct, gross
negligence, or an action taken by a Member without a reasonable basis
for belief by such Member that such action had been authorized by the
Company or (ii) any transaction from which such Member derived improper
personal benefit.
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(b) The Company shall indemnify and hold harmless each Member,
the affiliates of any Member and each officer (each an "Indemnified
Person") against any and all losses, claims, damages, expenses and
liabilities (including, but not limited to, any investigation, legal
and other reasonable expenses incurred in connection with, and any
amounts paid in settlement of, any action, suit, proceeding or claim)
of any kind or nature whatsoever that such Indemnified Person may at
any time become subject to or liable for by reason of the formation,
operation or termination of the Company, or the Indemnified Person's
acting as a Member under this Agreement, or the authorized actions of
such Indemnified Person in connection with the conduct of the affairs
of the Company; provided, however, that no Indemnified Person shall be
entitled to indemnification if and to the extent that the liability
otherwise to be indemnified for results from (i) any act or omission of
such Indemnified Person that involves actual fraud, willful misconduct,
gross negligence or an action taken by a Member or officer without a
reasonable basis for belief by such Member or officer that such action
had been authorized by the Company or (ii) any transaction from which
such Indemnified Person derived improper personal benefit. The
indemnities provided hereunder shall survive termination of the Company
and this Agreement. Each Indemnified Person shall have a claim against
the property and assets of the Company for payment of any indemnity
amounts from time to time due hereunder, which amounts shall be paid or
properly reserved for prior to the making of distributions by the
Company to Members. Costs and expenses that are subject to
indemnification hereunder shall, at the request of any Indemnified
Person, be advanced by the Company to or on behalf of such Indemnified
Person prior to final resolution of a matter, so long as such
Indemnified Person shall have provided the Company with a written
undertaking to reimburse the Company for all amounts so advanced if it
is ultimately determined that the Indemnified Person is not entitled to
indemnification hereunder.
(c) The contract rights to indemnification and to the
advancement of expenses conferred in this Section 16 shall not be
exclusive of any other right that any person may have or hereafter
acquire under any statute, agreement, vote of the Members or otherwise.
(d) The Company may maintain insurance, at its expense, to
protect itself and any Member, officer, employee or agent of the
Company or another limited liability company, corporation, partnership,
joint venture, trust or other enterprise against any expense, liability
or loss, whether or not the Company would have the power to indemnify
such person against such expense, liability or loss under the Delaware
Act.
(e) The Company may, to the extent authorized from time to
time by the Members, grant rights to indemnification and to advancement
of expenses to any officer, employee or agent of the Company to the
fullest extent of the provisions of this Section 16 with respect to the
indemnification and advancement of expenses of Members of the Company.
17. AMENDMENTS. This Agreement may be amended only upon the written
consent of all Members.
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18. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Delaware without giving effect
to any choice of law or conflict of law provision or rule (whether of the State
of Delaware or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Delaware.
19. MEETINGS. The Members will use their reasonable efforts to meet at
least one time each year to discuss Company business.
IN WITNESS WHEREOF, the undersigned has duly executed this Agreement as
of March 31, 2005.
GAYLORD ENTERTAINMENT COMPANY,
SOLE MEMBER:
By: /s/ Carter R. Todd
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Name: Carter R. Todd
Title: Secretary
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SCHEDULE I
Name and Address Percentage Interest
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Gaylord Entertainment Company 100%
One Gaylord Drive
Nashville, Tennessee 37214
A-1