PLAINFIELD ENTERPRISES LLC AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
Exhibit
3.2
AMENDED
AND RESTATED
This
Amended and Restated Limited Liability Company Agreement (this “Agreement”) of
PLAINFIELD ENTERPRISES LLC, a Delaware limited liability company (the “Company”), is
effective as of September 2, 2008 (the “Effective Date”), by
HBJ Plainfield LLC and Plainfield Enterprises Holdings LLC, Delaware limited
liability companies.
WHEREAS,
the Company was formed as a limited liability company pursuant to the filing of
the Certificate of Formation in the form attached hereto as Exhibit A with the
Secretary of State of Delaware, the Members formed a limited liability company
pursuant to and in accordance with the Delaware Limited Liability Company Act (6
Del. C. §18-101, et seq.), as amended from time to time (the “Act”);
WHEREAS,
the Members of the Company adopted the Limited Liability Company Agreement,
dated as of January 4, 2008 (the “Prior Agreement”);
WHEREAS,
the Members wishes to enter into this Agreement to amend, restate and supersede
in its entirety, the Prior Agreement, to constitute the limited liability
company agreement of the Company in accordance with the Act, and to provide for,
among other things, the management of the business and affairs of the Company,
the allocation of profits and losses among the Members, the respective rights
and obligations of the Members to each other and to the Company, and certain
other matters;
NOW,
THEREFORE, in consideration of the mutual covenants expressed herein the Members
hereby agree that the Prior Agreement is amended, superseded and restated in its
entirety by this Agreement, and that this Agreement constitutes the adoption of
the amended and restate limited liability company agreement of the Company in
accordance with the Act by all of the Members of the Company and hereby agree as
follows:
ARTICLE
I
THE
COMPANY
1.1 Formation. The
Company was formed as a limited liability company under and pursuant to the
provisions of the Act on August 22, 2007. The fact that the Certificate is on
file in the office of the Secretary of State of the State of Delaware shall
constitute notice that the Company is a limited liability
company. The rights and liabilities of the Members shall be as
provided under the Act, the Certificate and this Agreement. The Members hereby
approve and ratify all actions heretofore taken by any Member and any of its
agents or representatives in connection with the formation or organization of
the Company. The sole Members of the Company at the Effective Date
shall be Plainfield Enterprises Holdings LLC, a Delaware limited liability
company (“Investco”) and HBJ Plainfield LLC, a Delaware limited liability
company (“Voteco”). Investco and Voteco shall be sometimes referred
to as the “Initial
Members”.
1.2 Name. The name
of the Company is “PLAINFIELD ENTERPRISES LLC” and all business of the Company
shall be conducted in such name. The Managers may change the name of the
Company to any other name as they may determine.
1.3 Purpose;
Powers. The purpose of the Company (the “Business Purpose”) is
to hold equity, directly, or indirectly through Affiliates, in one (1) or more
entities related to the gaming industry, and to exercise the rights, and manage
the distributions received, in connection therewith (the “Business”). The
Company has the power to do any and all acts necessary, appropriate, proper,
advisable, incidental or convenient to or in furtherance of the Business
Purpose. It is hereby acknowledged and agreed that Investco, as
holder of Class B Units, shall not be entitled to any management or voting
rights with respect to the Company, except as provided by applicable
law.
1.4 Place of Business of the
Company. The principal place of business of the Company shall be
located at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. The Managers may
change the principal place of business of the Company to any other place within
or without the State of Delaware. The registered office of the
Company in the State of Delaware shall be initially located at the address set
forth in the Certificate.
1.5 Other
Offices. The Company may establish and maintain other offices
at any time and at any place or places as the Managers may
designate.
1.6 Filings; Registered Agent
for Service of Process.
(a) The
Managers shall take all actions reasonably necessary to perfect and maintain the
status of the Company as a limited liability company under the laws of the State
of Delaware, including the preparation and filing of such amendments to the
Certificate and such other certificates, documents, instruments and publications
as may be required by law.
(b) The
Managers or, if required by applicable law, the Members shall execute and cause
to be filed original and amended certificates and shall take any and all other
actions as may be reasonably necessary to perfect and maintain the status of the
Company as a limited liability company or similar type of entity under the laws
of any other jurisdiction in which the Company engages in the
Business.
(c) The
resident agent of the Company for service of process on the Company in the State
of Delaware shall be as set forth in the Certificate or as changed by the
Managers from time to time in accordance with the Act.
1.7 Term. The
term of the Company commenced on the date the Certificate was filed in the
office of the Secretary of State of the State of Delaware in accordance with the
Act, and shall continue in perpetuity, unless earlier terminated in accordance
with Article
X.
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1.8 Partnership Tax
Treatment. Each Member recognizes, agrees and intends that,
for federal and conforming state income tax purposes and no other, the Company
will be classified as a partnership.
1.9 Title to Company
Property. All property owned by the Company shall be owned by
the Company as an entity, and no Member shall have any ownership interest in
such property in its individual name. The Company shall hold title to all of its
property in the name of the Company and not in the name of any
Member.
1.10 Outside Activities.
In view of the limited purposes of the Company, no Member shall have any
obligation (fiduciary or otherwise) with respect to the Company or to the other
Members arising out of this Agreement insofar as making other investment
opportunities available to the Company or to the other Members. Each
Member may, notwithstanding the existence of this Agreement, engage in whatever
activities such Member may choose, whether the same are competitive with the
Company or otherwise, without having or incurring any obligation to offer any
interest in such activities to the Company or to the other Members pursuant to
this Agreement. Neither this Agreement nor any activities undertaken
pursuant hereto shall prevent any Member from engaging in such activities, and
the fiduciary duties of the Members to each other and to the Company shall be
limited solely to those arising from the purposes of the Company described in
Section 1.3 above.
ARTICLE
II
DEFINITIONS
& INTERPRETATION
2.1 Defined Terms.
As used in this Agreement, the following terms shall have the following
meanings:
Act. As
defined in the Preamble hereof.
Additional Capital
Contributions. With respect to any Member, the Capital
Contributions made by such Member pursuant to Section 3.2. In the
event Units are Transferred in accordance with the terms of this Agreement, the
transferee shall succeed to the Additional Capital Contributions of the
transferor to the extent they relate to the Units Transferred.
Affiliate. With
respect to a specified Person, a Person that directly, or indirectly through one
(1) or more intermediaries, controls or is controlled by, or is under common
control with, the Person specified.
Agreement. As
defined in the Preamble hereof, including and incorporating each annex attached
hereto.
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Book Value. With respect to
any Company property, the Company’s adjusted basis for federal income tax
purposes, adjusted from time to time to reflect the adjustments required or, in
the sole discretion of the Managers, permitted by Regulations Section
1.704-1(b)(2)(iv)(d)-(g).
Business. As
defined in Section 1.3.
Business
Purpose. As defined in Section 1.3.
Capital
Account. As defined in Section 4.1.
Capital
Contributions. With respect to any Member, the amount of money
and other things of value contributed to the Company with respect to the Units
in the Company held or purchased by such Member, including Additional Capital
Contributions.
Certificate. The
Certificate of Formation of the Company filed with the Secretary of State of the
State of Delaware pursuant to the Act to form the Company.
Class A
Unit. Class A ownership unit in the Company, including any and
all benefits to which the holder of such Class A Unit may be entitled as
provided in this Agreement, together with all obligations of such holder to
comply with the terms and provisions of this Agreement.
Class A
Vote. With respect to any action, a vote by the Member holding
Class A Units, whether at a meeting or by written consent, in which such Member
unanimously affirms such action.
Class B
Unit. Class B ownership unit in the Company, including any and
all benefits to which the holder of such Class B Unit may be entitled as
provided in this Agreement, together with all obligations of such holder to
comply with the terms and provisions of this Agreement.
Code. The
United States Internal Revenue Code of 1986.
Commission. Nevada
Gaming Commission.
Company. As
defined in the Preamble hereof.
Dissolution
Event. As defined in Section 10.1.
Effective Date. As
defined in the Preamble hereof.
Execution
Date. As defined in the Preamble hereof.
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Gaming
Act. Nevada Revised Statutes Chapter 463.
Gaming Adverse
Event. With respect to a Person:
(a) the
determination by any applicable Gaming Authority that such Person is unsuitable
to be licensed if such Person is required to be licensed;
(b) if
such Person is a Member, the determination by any applicable Gaming Authority
that such Person is unsuitable to hold its Membership Interest;
(c) if
such Person is a Manager, the determination by any applicable Gaming Authority
that such Person is unsuitable to engage in the management of the
Company;
(d) the
denial, revocation, suspension or voluntary relinquishment of a required Gaming
Approval issued to such Person by any Gaming Authority; or
(e) any
action by such Person that results in a written communication from any Gaming
Authority to the Company advising the Company that, or administrative action by
any Gaming Authority determining that, (i) any required Gaming Approval by such
Gaming Authority with respect to the Company shall be approved only upon terms
and conditions that are unacceptable to the Company (as determined by a Class A
Vote), or (ii) such Gaming Authority shall revoke or suspend any existing
required Gaming Approval held by the Company.
Gaming
Approval. With respect to a Person, a license or finding of
suitability required by a Gaming Authority under the Gaming Laws in order for
such Person to hold an equity interest in the Company or actively engage in the
management of the Company.
Gaming
Authorities. Those federal, state, local and other governmental,
regulatory and administrative authorities, agencies, boards and officials
responsible for or involved in the regulation of gaming or gaming activities or
the sale of liquor in any jurisdiction, within the State of Nevada specifically,
the Nevada Gaming Authorities.
Gaming Laws.
All gaming laws of any jurisdiction or jurisdictions to which the Company is, or
may at any time become, subject, including the Nevada Gaming Control Act, as
codified in Chapter 463 of the NRS, and the codes, rules and regulations adopted
by the Gaming Authorities.
Initial
Members. As defined in Section 1.1.
Initial Units.
With respect to a Member, the number of Class A Units or Class B Units set forth
on Exhibit A
attached hereto.
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Investco. As defined
in Section 1.1.
Losses. See
definition for “Profits and Losses”.
Manager. Any
Person (a) who is designated as such who has been appointed as such in
accordance with Section 7.1, and (b) who has not ceased to be a Manager in
accordance with Section 7.1.
Member. Any
Person (a) who is listed as such on Exhibit A attached hereto, or who has become
a Member in accordance with the terms of this Agreement, and (b) who has not
ceased to be a Member in accordance with the terms of this
Agreement.
Membership
Interest. With respect to any Member, such Member’s entire interest
in the Company and the rights and privileges that such Member may enjoy by being
a Member, including such interest and such rights and privileges that may arise
from any Units held by such Member.
NRS. The Nevada
Revised Statutes.
Percentage
Interest. With respect to any Member as of any date, the ratio
(expressed as a percentage) of the number of Units held by such Member on such
date to the aggregate Units held by all Members on such date.
Person. Any
individual, corporation (including any non-profit corporation), general or
limited partnership, limited liability company, joint venture, estate, trust,
association, organization or other entity of any kind or nature.
Prior Agreement. As
defined in the Preamble hereof.
Profits and
Losses. For each fiscal year or other period, the Company’s taxable
income or loss for such fiscal year or other period, determined in accordance
with Section 703(a) of the Code (including items required to be stated
separately under Section 703(a)(1)). Profits and Losses shall be increased
by any tax-exempt income and shall be decreased by any expenditures that are not
deductible in computing taxable income and that are not capitalized.
Profits and Losses shall be properly adjusted as necessary to reflect any
allocations required by Section 10.2. In addition, if Company property has
a Book Value different than its adjusted basis for tax purposes, then (a)
Profits and Losses shall be determined by applying the principles of Regulations
Section 1.704-1(b)(2)(iv)(g), with the result that
Profits and Losses shall be determined with reference to depreciation,
amortization and gain or loss based upon Book Value, and (b) in the case of a
revaluation of property, any gain or loss resulting from such revaluation shall
be taken into account in calculating Profits and Losses for the year in which
the revaluation occurs.
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Regulations.
Temporary and final regulations promulgated under the Code, as such regulations
may be amended from time to time (including corresponding provisions of
succeeding regulations).
Transfer. As a
noun, any voluntary or involuntary assignment, transfer, sale, pledge,
hypothecation, encumbrance or other disposition; as a verb, voluntarily or
involuntarily to assign, transfer, sell, pledge, hypothecate, encumber or
otherwise dispose of.
Unit. Any Class
A Unit and any Class B Unit.
Voteco. As defined in
Section 1.1.
2.2 Interpretation.
(a) The
words “hereof,”
“herein” and
“hereunder” and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement.
(b)
The meanings given to terms defined in this Agreement shall be equally
applicable to both the singular and plural forms of such terms.
(c)
Whenever the context may require, any pronoun used in this Agreement shall
include the corresponding masculine, feminine and neuter forms.
(d) All
references in this Agreement to Articles, Sections and Annexes shall be deemed
to be references to Articles and Sections of, and Annexes to, this Agreement
unless the context shall otherwise require. All Annexes attached to this
Agreement shall be deemed incorporated herein as if set forth in full
herein.
(e) The
words “include,” “includes” and “including” and
variations thereof when used in this Agreement shall be deemed to be followed by
the phrase “without limitation.”
(f) References
to a party to this Agreement are also to its successors and permitted
assigns.
(g)
Unless otherwise expressly provided in this Agreement, any agreement, instrument
or statute defined or referred to herein or in any agreement, instrument or
statute defined or referred to herein means such agreement, instrument or
statute as from time to time amended, modified or supplemented, including (in
the case of agreements or instruments) by waiver or consent and (in the case of
statutes) by succession of comparable successor statutes.
(h)
All references to “$” or “Dollars” shall mean United States
Dollars.
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2.3 Captions.
Titles or captions of Articles or Sections contained herein are inserted only as
a matter of convenience and for reference, and in no way define, limit, extend
or describe the scope of this Agreement or the intent of any provision
hereof.
ARTICLE
III
CAPITAL
CONTRIBUTIONS; INITIAL OWNERSHIP
3.1 Initial Ownership of the
Company. The Company issued to its subscribing Members their
Initial Units in exchange for the consideration set forth in Exhibit A
hereto.
3.2 Additional Capital
Contributions. A Member may make Additional Capital Contributions
as approved by the Managers.
ARTICLE
IV
CAPITAL
ACCOUNTS; ALLOCATIONS
4.1 Capital
Accounts. The Company shall establish a separate capital account (a
“Capital
Account”) for each Member. The Company shall determine and maintain
each Capital Account in accordance with Section 704(b) of the Code and
Regulations Section 1.704-1(b)(2)(iv), and such other provisions of Regulations
Section 1.704-1(b) that must be complied with in order for the Capital Accounts
to be determined in accordance with the provisions of said Regulations.
Specifically:
(a) Each
Member’s Capital Account shall be increased by (i) its Capital Contributions
(net of liabilities secured by any contributed property that the Company is
considered to assume or take subject to under Section 752 of the Code) and (ii)
the amount of Profits allocated to such Member pursuant to Section
4.2.
(b) Each
Member’s Capital Account shall be decreased by (i) the amount of cash and the
fair market value of any property distributed to such Member by the Company (net
of any liabilities secured by such property that such Member is considered to
assume or take subject to under Section 752 of the Code) and (ii) the amount of
Losses allocated to such Member pursuant to Section 4.2.
4.2 Allocations.
(a) Except
as otherwise provided in Section 4.2(b), Profits and Losses for any fiscal year
shall be allocated among the Members in a manner determined by the Managers in
good faith such that, as of the end of such fiscal year, the sum of (i) the
Capital Account of each Member, (ii) such Member’s share of partnership minimum
gain and (iii) such Member’s partner non-recourse debt minimum gain equal to the
respective net amounts, positive or negative, which would be distributed to them
or for which they would be liable to the Company under the Act, determined as if
the Company were to (A) liquidate the assets of the Company for an amount equal
to their Book Value and (B) distribute the proceeds of liquidation pursuant to
Section 10.2.
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(b) Items
of Profits and Losses shall be allocated to the Members in a manner that
complies with the “qualified income offset” requirement of Regulations Section
1.704-1(b)(2)(ii)(d)(3). To the extent
permitted pursuant to Regulations Section 1.704-2, non-recourse deductions (as
defined in Regulations Section 1.704-2) of the Company shall be allocated to the
Members in the manner determined by the Managers. If there is a net
decrease in the Company’s partnership minimum gain or partner non-recourse debt
minimum gain (as defined in Regulations Section 1.704-2), then the Members shall
be allocated items of Profits in a manner that complies with the “minimum gain
chargeback” requirements of Regulations Section 1.704-2. Allocations of
tax items shall in all events be made in a manner that is consistent with
Regulations Section 1.704-1(b) and Section 704(c) of the Code.
ARTICLE
V
DISTRIBUTIONS
5.1 Distributions.
Any distributions shall be made to the Members at such times and in such amounts
as approved by the Managers in good faith and, if and when made, shall be
distributed by the Company to the Members pro rata in proportion to
their respective Percentage Interests.
5.2 Amounts
Withheld. All amounts withheld pursuant to the Code or any
provision of any state, local or foreign tax law with respect to any payment,
distribution or allocation to the Company or the Members shall be treated as
amounts paid or distributed, as the case may be, to the Members with respect to
which such amount was withheld pursuant to this Section 5.2 for all purposes
under this Agreement. The Company, under the direction of the Managers
acting in good faith, is authorized to withhold from payments and distributions,
or with respect to allocations to the Members, and to pay over to any federal,
state, local or foreign government, any amounts required to be so withheld
pursuant to the Code or any provisions of any other federal, state, local or
foreign law, and shall allocate any such amounts to the Members with respect to
which such amounts were withheld.
ARTICLE
VI
MEMBERSHIP
MATTERS;
TRANSFERS
AND FORFEITURES OF MEMBERSHIP INTERESTS
6.1 Restrictions on Transfer,
Issuance and Admission. Unless approved in advance by the Managers
and, by the applicable Gaming Authorities, if any, no Member shall Transfer all
or any portion of its Units. Notwithstanding the immediately preceding
sentence, Transfers or issuances of any Units to any Person who was required to
be, and has not been, found suitable to be licensed or to hold such Units by the
applicable Gaming Authorities, if any, are prohibited and shall be null and void
and of no force or effect ab
initio.
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6.2 Substituted
Member. A transferee of any Units pursuant to a Transfer that
complies with Section 6.1 shall, if not a Member, be admitted to the Company as
a substituted Member entitled to all the rights of a Member upon the execution
and delivery of such instruments, in form and substance satisfactory to the
Managers, as may be necessary, appropriate or desirable to effect such
substitution and to confirm the agreement of the transferee to be bound by all
of the terms and provisions of this Agreement. Unless a transferee becomes
a substituted Member in accordance with the provisions of this Section 6.2, he,
she or it shall not be entitled to any of the rights granted to a Member under
the Act or this Agreement.
6.3 Effect of Unsuitability
Determination. As of the date that the Company receives notice from
any applicable Gaming Authority that a Member or a transferee of any Membership
Interest (i) is required to be licensed but is unsuitable to be licensed or (ii)
is unsuitable to hold a Membership Interest, such unsuitable Member or
transferee shall not, for so long as such unsuitability determination remains in
force and effect, (A) receive any share of any cash distribution, or any other
property or payments upon the dissolution of the Company, (B) exercise directly
or through a trustee or nominee any voting rights conferred by any Membership
Interest, (C) participate in the management of the Business or affairs of the
Company, or (D) receive any remuneration in any form from the Company for
services rendered or otherwise.
ARTICLE
VII
MANAGEMENT
7.1 Managers
Board.
(a) The
management of the Company shall be vested in the Board of Managers (the "Board")
designated by the Members. The Operating Manager, who shall be
appointed by the Board from among its Managers, shall report to and be subject
to the direction of the Board. The initial Operating Manager of the
Company shall be ▇▇▇▇ ▇▇▇▇▇▇▇▇.
(b) The
number of Managers on the Board shall be five (5) unless otherwise provided
herein. The Managers of the Company shall be the
following:
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇
Sole
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(c) A
Manager shall remain in office until removed by action of the holders of a
majority of membership units of the Company having voting
authority.
(d) A
Manager (including the Operating Manager) may be removed from the position of
Manager at any time, with or without cause, by the written notice of the holders
of a majority of the membership units of the Company having voting
authority. Any removal of the Operating Manager from the position of
Manager pursuant to this Section 7.1(d) shall also constitute the removal of
such Manager from the position of Operating Manager without the necessity of any
further action pursuant to Section 7.8.
(e) In
the event any Manager dies or is unwilling or unable to serve as such or is
removed from office, the remaining Managers shall promptly designate a successor
to such Manager.
(f) Each
Manager shall have one (1) vote. Except as otherwise provided in this
Agreement, the Board shall act by the affirmative vote of a majority of the
total number of members of the Board.
(g) Each
Manager shall perform his duties as a Manager in good faith, in a manner he
reasonably believes to be in the best interests of the Company, and with such
care as an ordinarily prudent person in a like position would use under similar
circumstances. A person who so performs his duties shall not have any
liability by reason of being or having been a Manager of the
Company.
(h) The
Board shall have the power to delegate authority to the Operating Manager by
express written delegation as it may from time to time deem
appropriate. Any delegation of authority to take any action must be
approved in the same manner as would be required for the Board to approve such
action directly.
(i) A
Manager shall not be liable under a judgment, decree or order of court, or in
any other manner, for a debt, obligation or liability of the
Company.
7.2 Meetings of the
Board.
(a) The
Board shall hold regular meetings no less frequently than once every year and
shall establish meeting times, dates and places and requisite notice
requirements and adopt rules or procedures consistent with the terms of this
Agreement. Unless otherwise approved by the Board, each regular
meeting of the Board will be held at the Company's principal place of business
and attendance by the Operating Manager is mandatory. At such
meetings the Board shall transact such business as may properly be brought
before the meeting, whether or not notice of such meeting referenced the action
taken at such meeting.
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(b) Special
meetings of the Board may be called by any Manager. Notice of each
such meeting shall be given to each Manager on the Board by telephone, telecopy,
telegram or similar method (in each case, notice shall be given at least
twenty-four (24) hours before the time of the meeting) or sent by first-class
mail (in which case notice shall be given at least three (3) days before the
meeting), unless a longer notice period is established by the
Board. Each such notice shall state (i) the time, date, place (which
shall be at the principal office of the Company unless otherwise agreed to by
all Managers) or other means of conducting such meeting and (ii) the purpose of
the meeting to be so held. No actions other than those specified in
the notice may be considered at any special meeting unless unanimously approved
by the Managers. Any Manager may waive notice of any meeting in
writing before, at, or after such meeting. The attendance of a
Manager at a meeting shall constitute a waiver of notice of such meeting, except
when a Manager attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting was not properly
called.
(c) Any
action required to be taken at a meeting of the Board, or any action that may be
taken at a meeting of the Board, may be taken at a meeting held by means of
conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear each
other. Participation in such a meeting shall constitute presence in
person at such meeting.
(d) Notwithstanding
anything to the contrary in this Section 7.2, the Board may take without a
meeting any action that may be taken by the Board under this Agreement if such
action is approved by the unanimous written consent of the
Managers.
7.3 Board
Powers.
(a) Except
as otherwise provided in this Agreement or delegated to the Operating Manager
hereunder, all powers to control and manage the affairs of the Company shall be
exclusively vested in the Board and the Board may exercise all powers of the
Company and do all such lawful acts as are not by statute, the Articles or this
Agreement directed or required to be exercised or done by the Members and in so
doing shall have the right and authority to take all actions which the Board
deems necessary, useful or appropriate for the management and conduct of the
Company’s business.
(b) The
Board may appoint the officers of the Company and will establish policies and
guidelines for the hiring of employees, as appropriate and
necessary. The Operating Manager shall be responsible for conducting
the day-to-day business and affairs of the Company in the name of, and on behalf
of, the Company.
7.4 Duties and Obligations of
the Board.
(a) The
Board shall cause the Company to conduct its business and operations separate
and apart from that of any Member or Manager or any of its Affiliates,
including, without limitation, (i) segregating Company assets and not allowing
funds or other assets of the Company to be commingled with the funds or other
assets of, held by, or registered in the name of, any Member or Manager or any
of its Affiliates, (ii) maintaining books and financial records of the Company
separate from the books and financial records of any Member or Manager and its
Affiliates, and observing all Company procedures and formalities, including,
without limitation, maintaining minutes of Company meetings and acting on behalf
of the Company only pursuant to due authorization of the Members, (iii) causing
the Company to pay its liabilities from assets of the Company, (iv) causing the
Company to conduct its dealings with third parties in its own name and as a
separate and independent entity, and (v) oversee the activities of the Operating
Manager.
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(b) The
Board shall take all actions which may be necessary or appropriate (i) for the
continuation of the Company's valid existence as a limited liability company
under the laws of the State of Delaware and of each other jurisdiction in which
such existence is necessary to protect the limited liability of the Members or
to enable the Company to conduct the business in which it is engaged and (ii)
for the accomplishment of the Company's purposes, including the acquisition and
monitoring the Company’s assets in accordance with the provisions of this
Agreement and applicable laws and regulations.
(c) The
Board shall be under a fiduciary duty to conduct the affairs of the Company in
the best interests of the Company and of the Members, including the safekeeping
and use of all of the Company’s assets.
7.5 Day-to-Day Management by
Operating Manager.
Subject to the limitations and
restrictions set forth in this Agreement, the Operating Manager may exercise the
following specific rights and powers without any further consent of the other
Managers being required:
(a) Acquire
by purchase, lease, or otherwise any personal property which may be necessary,
convenient, or incidental to the accomplishment of the purposes of the
Company;
(b) Execute
any and all agreements, contracts, documents, certifications, and instruments
necessary or convenient in connection with the management of the affairs of the
Company;
(c) Borrow
money and issue evidences of indebtedness necessary, convenient, or incidental
to the accomplishment of the purposes of the Company;
(d) Care
for and distribute funds to the Members by way of cash, income, return of
capital, or otherwise, all in accordance with the provisions of this Agreement,
and perform all matters in furtherance of the objectives of the Company or this
Agreement;
(e) Contract
on behalf of the Company for the employment and services of employees and/or
independent contractors, such as lawyers and accountants to provide services for
the Company;
13
(f) Ask
for, collect, and receive any rents, issues, and profits or income from any
property owned by the Company, or any part or parts thereof, and disburse
Company funds for Company purposes to those persons entitled to receive the
same;
(g) Purchase
from or through others, contracts of liability, casualty, or other insurance for
the protection of the properties or affairs of the Company or the Members, or
for any purpose convenient or beneficial to the Company;
(h) Pay
all taxes, licenses, or assessments of whatever kind or nature imposed upon or
against the Company and for such purposes to make such returns and do all other
such acts or things as may be deemed necessary and advisable by the
Board;
(i) Establish,
maintain, and supervise the deposit of any monies or securities of the Company
with federally insured banking institutions or other institutions as may be
selected by the Operating Manager, in accounts in the name of the Company with
such institutions;
(j) Institute,
prosecute, defend, settle, compromise, and dismiss lawsuits or other judicial or
administrative proceedings brought on or in behalf of, or against, the Company
or the Members in connection with activities arising out of, connected with, or
incidental to this Agreement, and to engage counsel or others in connection
therewith; and
(k) Perform
all ministerial acts and duties relating to the payment of all indebtedness,
taxes, and assessments due or to become due with regard to the Company’s assets,
and to give and receive notices, reports, and other communications arising out
of or in connection with the ownership, indebtedness, or maintenance of the
Company’s assets.
7.6 Duties and Obligations of
the Operating Manager.
(a) The
Operating Manager shall cause the Company to conduct its business and operations
separate and apart from that of any Member or any of his Affiliates, including,
without limitation, (i) segregating Company assets and not allowing funds or
other assets of the Company to be commingled with the funds or other assets of,
held by, or registered in the name of, any Member or any of his Affiliates, (ii)
maintaining books and financial records of the Company separate from the books
and financial records of any Member and his Affiliates, and observing all
Company procedures and formalities, including, without limitation, maintaining
minutes of Company meetings and acting on behalf of the Company only pursuant to
due authorization of the Board, (iii) causing the Company to pay its liabilities
from assets of the Company and (iv) causing the Company to conduct its dealings
with third parties in its own name and as a separate and independent
entity.
14
(b) The
Operating Manager shall have fiduciary responsibility for the safekeeping and
use of all funds and assets of the Company, whether or not in his immediate
possession or control. The funds of the Company shall not be
commingled with the funds of any other Person and the Operating Manager shall
not employ, or permit any other Person to employ, such funds in any manner
except for the benefit of the Company. The bank accounts of the
Company shall be maintained in such banking institutions as are approved by the
Board and withdrawals shall be made only in the regular course of Company
business and as otherwise authorized in this Agreement on such signature or
signatures as the Board may determine.
7.7 Restrictions on the
Managers.
Notwithstanding anything in this
Agreement to the contrary, neither the Operating Manager nor any other Manager
shall have any authority to take any action not expressly delegated to such
Operating Manager or other Manager hereunder. Without limiting the
generality of the preceding sentence, the Operating Manager and each other
Manager shall not have the authority to, and covenants and agrees that he shall
not, do any of the following acts on behalf of the Company without the approval
of the a majority of the Board:
(a) Acquire,
by purchase, lease, or otherwise, any real property on behalf of the
Company;
(b) Give
or grant any options, rights of first refusal, deeds of trust, mortgages,
pledges, ground leases, security interests, or otherwise encumbering any stock,
interest in a business entity, promissory note issued to the Company, or any
other asset owned by the Company;
(c) Sell,
convey, or refinance any interest, direct or indirect, that may be acquired by
the Company in Casino ▇▇▇▇▇ ▇▇▇▇ Holding, LLC;
(d) Cause
or permit the Company to extend credit to or make any loans or become a surety,
guarantor, endorser, or accommodation endorser for any person or enter into any
contracts with respect to the operation or management of the business of the
Company;
(e) Release,
compromise, assign, or transfer any claims, rights, or benefits of the
Company;
(f) Confess
a judgment against the Company or submit a Company claim to
arbitration;
(g) File
any petition for bankruptcy of the Company;
(h) Distribute
any cash or property of the Company, other than as provided in this
Agreement;
15
(i) Admit
a new Member to the Company;
(j) Amend
this Operating Agreement; or
(k) Do
any act in contravention of this Agreement or which would make it impossible or
unreasonably burdensome to carry on the business of the Company.
Notwithstanding
the above, the Operating Manager shall have the right and authority to take such
actions as he, in its reasonable judgment, deems necessary for the protection
and preservation of Company assets if, under the circumstances, in the good
faith estimation of the Operating Manager, there is insufficient time to allow
the Operating Manager to obtain the approval of the Board to such action and any
delay would materially increase the risk to preservation of
assets. The Operating Manager shall notify the Board of each such
action contemporaneously therewith or as soon as reasonably practicable
thereafter. Such authority shall lapse and terminate upon reduction
of such risk to preservation of assets or upon receipt by the Operating Manager
of telephone, facsimile, or written notice from any other Manager of his
disapproval of any or all of the proposed actions.
7.8 Replacement of Operating
Manager.
In the event a majority of the Board
shall at any time, or from time to time, be dissatisfied with the Operating
Manager's performance (regardless of whether such dissatisfaction shall
constitute legal "cause" for termination) or believe removal of the Operating
Manager is appropriate for any other reason, such Managers shall have the right
to remove the Operating Manager from the position as Operating Manager (but not
from the position as a member of the Board) upon written notice of such action
to the Operating Manager. A person who is removed from the position
of Operating Manager pursuant to this Section 7.8 shall continue to be a Manager
until such person is removed from the position of Manager in accordance with
Section 7.1 or otherwise ceases to be a Manager in accordance with the terms of
this Agreement. The approval of a majority of the Board shall be
required to appoint a replacement Operating Manager.
7.9 Reimbursements.
The Company shall reimburse the Members
and Managers for all expenses incurred and paid by any of them in the
organization of the Company (other than those fees and costs incurred by the
Members individually in the review of this Agreement and transaction(s)
contemplated hereby) and as authorized by the Company, in the conduct of the
Company's business, including, but not limited to, expenses of maintaining an
office, telephones, travel, office equipment and secretarial and other personnel
as may reasonably be attributable to the Company. Such expenses shall
not include any expenses incurred in connection with a Member's or Managers'
exercise of its rights as a Member or a Manager apart from the authorized
conduct of the Company's business. The Board's sole determination of
which expenses are allocated to and reimbursed as a result of the Company's
activities or business and the amount of such expenses shall be
conclusive. Such reimbursement shall be treated as expenses of the
Company and shall not be deemed to constitute distributions to any Member of
profit, loss or capital of the Company.
16
7.10 Compensation; Expenses and
Loans.
(a) Compensation
and Reimbursement. Except as otherwise
provided in this Agreement, no Member or Affiliate of any Member shall receive
any salary, fee, or draw for services rendered to or on behalf of the Company or
otherwise in its capacity as a Member, nor shall any Member or Affiliate of any
Member be reimbursed for any expenses incurred by such Member or Affiliate on
behalf of the Company or otherwise in its capacity as a
Member.
(b) Expenses. The Operating
Manager and other Managers may charge the Company, and shall be
reimbursed, for any reasonable direct expenses incurred in connection with the
Company's business and payable to Persons other than the Operating Manager or
any Affiliate of the Operating Manager.
7.11 Indemnification of the
Managers.
(a) The
Company, its receiver, or its trustee (in the case of its receiver or trustee,
to the extent of Company Property) shall indemnify, save harmless, and pay all
judgments and claims against any Manager including the Operating Manager
relating to any liability or damage incurred by reason of any act performed or
omitted to be performed by any Manager, including reasonable attorneys' fees
incurred by the Manager in connection with the defense of any action based on
any such act or omission, which attorneys' fees may be paid as
incurred.
(b) Unless
otherwise provided in Section 7.11(d) following, in the event of any action by a
Member against any Manager, including a Company derivative suit, the Company
shall indemnify, save harmless, and pay all expenses of such Manager, including
reasonable attorneys' fees incurred in the defense of such action.
(c) Unless
otherwise provided in Section 7.11(d) following, the Company shall indemnify,
save harmless, and pay all expenses, costs, or liabilities of any Manager, if
for the benefit of the Company and in accordance with this Agreement said
Manager makes any deposit or makes any other similar payment or assumes any
obligation in connection with any Property proposed to be acquired by the
Company and suffers any financial loss as the result of such
action.
(d) Notwithstanding
the provisions of Sections 7.11(a), 7.11(b) and 7.11(c) above, such Sections
shall be enforced only to the maximum extent permitted by law and no Manager
shall be indemnified from any liability for the fraud, intentional misconduct,
gross negligence or a knowing violation of the law which was material to the
cause of action.
17
(e) The
obligations of the Company set forth in this Section 7.11 are expressly intended
to create third party beneficiary rights of each of the Managers and any Member
is authorized, on behalf of the Company, to give written confirmation to any
Manager of the existence and extent of the Company's obligations to such Manager
hereunder.
ARTICLE
VIII
UNSUITABILITY OF
MEMBER
Any Member that is found unsuitable by
the Commission shall return all evidence of any ownership in the Company to the
Company, at which time the Company shall within 10 days, after the Company
receives notice from the Commission, return to the Member in cash, the amount of
his capital account as reflected on the books of the Company, and the unsuitable
Member shall no longer have any direct or indirect interest in the
Company.
ARTICLE
IX
BOOKS
AND RECORDS; REPORTS
The
Manager(s) shall keep adequate and accurate books and records with respect to
the operations of the Company. Such books and records shall be maintained
at the Company’s principal place of business, or at such other place as the
Manager(s) shall determine, and all Members, and their duly authorized
representatives, shall at all reasonable times have access to such books and
records as well as any information required to be made available to the Members
under the Act. Within a reasonable time after the end of each fiscal year,
the Company shall cause to be delivered to each Person who was a Member at any
time during such fiscal year such information, if any, with respect to the
Company as may be necessary for the preparation of such Person’s federal, state
or local income tax returns.
ARTICLE
X
DISSOLUTION
AND TERMINATION
10.1 Events of
Dissolution. The Company shall be dissolved upon the happening of
any of the following (a “Dissolution
Event”):
(a) Upon
the sale or other disposition of all or substantially all of the Company’s
assets and receipt of all consideration therefor;
(b) Upon
a judicial determination that an event has occurred that makes it unlawful,
impossible or impracticable for the Company to carry on the Business;
or
18
(c) Upon
a Class A Vote.
10.2 Winding Up.
Upon the occurrence of a Dissolution Event or the determination by a court of
competent jurisdiction that the Company has dissolved prior to the occurrence of
a Dissolution Event, the Company shall continue solely for the purposes of
winding up its affairs in an orderly manner, liquidating its assets, and
satisfying the claims of its creditors and Members, and no Member shall take any
action that is inconsistent with, or not necessary to or appropriate for, the
winding up of the Business and affairs of the Company; provided, that, all covenants
contained in this Agreement and obligations provided for in this Agreement shall
continue to be fully binding upon the Members until such time as the property of
the Company has been distributed pursuant to this Section 10.2 and the
Certificate has been canceled pursuant to the Act. The Managers, as
liquidators, shall be responsible for overseeing the winding up and dissolution
of the Company, which winding up and dissolution shall be completed within
ninety (90) days of the occurrence of a Dissolution Event. The Managers,
as liquidators, shall take full account of the Company’s liabilities and
property and shall cause such property or the proceeds from the sale thereof, to
the extent sufficient therefor, to be applied and distributed, to the maximum
extent permitted by law, in the following order and priority:
(a) First,
to the payment and discharge of all of the Company’s debts and other liabilities
to creditors (including Members that are creditors).
(b) Second,
to establishing any reserves which the Managers determine, in their sole and
absolute discretion, are necessary for any contingent, conditional or unmatured
liabilities or obligations of the Company.
(c) The
balance, if any, to the Members in accordance with the order of priority set
forth in Section 5.1.
10.3 Deficit Capital
Accounts. If any Member has a deficit balance in its capital
account (after giving effect to all contributions, distributions and
allocations), such Member shall have no obligation to make any contribution to
the capital of the Company with respect to such deficit, and such deficit shall
not be considered a debt owed to the Company or to any other Person for any
purpose whatsoever.
10.4 Rights of
Members. Except as otherwise provided in this Agreement, each
Member shall look solely to the property of the Company for the return of its
Capital Contributions and has no right or power to demand or receive property
other than cash from the Company. If the assets of the Company remaining
after payment or discharge of the debts or liabilities of the Company are
insufficient to return such Capital Contributions, the Members shall have no
recourse against the Company or any other Member or any Manager.
19
10.5 Notice of
Dissolution/Termination.
(a) In
the event a Dissolution Event occurs or an event occurs that would, but for the
provisions of Section 10.1, result in a dissolution of the Company, the Managers
shall, within thirty (30) days thereafter, provide written notice thereof to
each of the Members.
(b) Upon
completion of the distribution of the property of the Company as provided in
this Article X, the Company shall be terminated, and the Managers, as
liquidators, shall cause the filing of the certificate of dissolution and shall
take all such other actions as may be necessary to terminate the
Company.
10.6 Allocations During Period of
Liquidation. Until the date on which all of the assets of the
Company have been distributed to the Members in accordance with Section 10.2, the
Members shall continue to share profits, losses and other items of Company
income, gain, loss or deduction in the manner provided in Article
IV.
10.7 Character of Liquidating
Distributions. All payments made in liquidation of the interest of
a Member in the Company shall be made in exchange for the interest of such
Member in property pursuant to Code Section 736(b)(1), including the interest of
such Member in Company goodwill.
10.8 The
Liquidators.
(a) Fees. The
Company is authorized to reimburse the Managers, as liquidators, for their
reasonable costs and expenses incurred in performing the services of
liquidators.
(b) Indemnification.
The Company shall indemnify, hold harmless, and pay all judgments and claims
against the Managers, as liquidators, or agents or representatives of the
Managers, relating to any liabilities (whether contingent, fixed or unfixed,
liquidated or unliquidated, or otherwise), obligations, claims, suits, actions
or causes of action, demands, deficiencies, losses, settlements, assessments,
awards, judgments, interest, fines, penalties, damages (including incidental,
consequential, actual and punitive damages), and costs and expenses (including
reasonable attorneys’ fees, which may be paid as incurred, and other reasonable
costs and expenses of investigating or contesting any of the foregoing) incurred
by reason of any act performed or omitted to be performed by the Managers, as
liquidators, or such agents or representatives, in connection with the
liquidation of the Company.
10.9 Form of Liquidating
Distributions. For purposes of making distributions required by
Section 10.2, the Managers, as liquidators, may determine whether to distribute
all or any portion of the property of the Company in-kind or to sell all or any
portion of the property of the Company and distribute the proceeds
therefrom.
20
ARTICLE XI
GAMING ACT
RESTRICTIONS
Notwithstanding anything to the contrary
expressed or implied in this Agreement or the Certificate, the sale, assignment, transfer, pledge
or other disposition of any interest in the Company when it is a Nevada gaming licensee or a holding company registered with the
Commission under the Gaming
Act is ineffective unless approved in advance by the Commission. If
at any time the Commission finds that a Member which owns any such interest in
unsuitable to hold that interest, the Commission shall immediately notify the
Company of that fact. The Company shall, within 10 days from the date
that it receives the notice from the Commission, return to the unsuitable Member
the amount of his capital account as reflected on the books of the
Company. Beginning on the date when the Commission serves notice of a
determination of unsuitability, pursuant to the preceding sentence, upon the
Company, it is unlawful for the unsuitable Member: (a) to receive any share of
the distribution of profits or cash or any other property of, or payment upon
dissolution of, the Company, other than a return of capital as required above;
(b) to exercise directly or though a trustee or nominee, any voting right
conferred by such interest; (c) to participate in the management of the business
and affairs of the limited-liability Company; or (d) to receive any remuneration
in any form from the Company, for services rendered or
otherwise.
ARTICLE
XII
GENERAL
PROVISIONS
12.1 Further
Assurances. The Members shall execute and deliver such further
instruments and other documents as may be necessary or appropriate to give full
force and effect to all of the terms and provisions of this
Agreement.
12.2 Confidentiality.
The Managers shall determine the form and content of any public announcement,
whether by press release or otherwise, with respect to this Agreement or any of
the discussions, negotiations or transactions relating hereto.
12.3 Entire
Agreement. This Agreement (which includes the attached annexes) is
intended by the parties hereto as the final expression and the complete and
exclusive statement of their agreement with respect to the terms in this
Agreement, and any prior or contemporaneous agreements or understandings, oral
or written, which may contradict, explain or supplement these terms shall not be
effective or admissible.
12.4 Amendments.
This Agreement may not be amended in any way except by a writing duly executed
by all Members specifying that it amends this Agreement.
12.5 Governing Law.
The Members expressly agree that all the terms and conditions hereof shall be
construed under the laws of the State of Delaware applicable to agreements
made and to be performed entirely therein.
21
12.6 Jurisdiction; Waiver of Jury
Trial. Each Member hereby consents to the exclusive jurisdiction of
the state and federal courts sitting in Delaware in any action on a claim
arising out of, under or in connection with this Agreement or the transactions
contemplated by this Agreement. Each of the Members irrevocably waives to
the extent permitted by law, all rights to trial by jury in any action,
proceeding or counterclaim arising out of or relating to this
Agreement.
12.7 Waiver. Any
term or condition of this Agreement may be waived at any time by the Member that
is entitled to the benefit thereof, but no such waiver shall be effective unless
set forth in a written instrument duly executed by or on behalf of the Member
waiving such term or condition. No waiver by any Member of any term or
condition of this Agreement, in any one or more instances, shall be deemed to be
or construed as a waiver of the same or any other term or condition of this
Agreement on any future occasion. No delay or omission in the exercise of
any power, remedy or right herein provided or otherwise available to any Member
will impair or affect the right of such Member thereafter to exercise the
same. Any extension of time or other indulgence granted to any Member will
not otherwise alter or affect any power, remedy or right with respect to any
other Member, or the obligations of the Member to whom such extension or
indulgence is granted. All remedies, either under this Agreement or by law or
otherwise afforded, shall be cumulative and not alternative.
12.8 Severability.
Every provision of this Agreement is intended to be severable, and if any term
or provision of this Agreement is illegal or invalid for any reason whatsoever,
such illegality or invalidity shall not affect the validity or legality of the
remainder of this Agreement.
12.9 No Assignment.
Except as expressly set forth in this Agreement, neither this Agreement nor any
right, interest or obligation hereunder may be assigned by any Member without
the prior written consent of the other Members and any attempt to do so shall be
null and void and of no force or effect ab initio. Subject to
the preceding sentence, this Agreement is binding upon, inures to the benefit of
and is enforceable by the Members and their respective successors, permitted
transferees and assigns.
12.10 Third Party
Beneficiaries. Nothing herein, express or implied, is intended to
or shall confer upon any other Persons any legal or equitable right, benefit or
remedy of any nature whatsoever, except as expressly set forth
herein.
12.11 Construction.
Every term and provision of this Agreement shall be construed simply according
to its fair meaning and not strictly for or against any Member.
12.12 Counterparts.
This Agreement may be executed by facsimile and in a number of counterparts, all
of which together shall for all purposes constitute one Agreement, binding on
all the Members notwithstanding that all Members have not signed the same
counterpart. Any signature page of this Agreement may be detached from any
counterpart without impairing the legal effect of any signatures thereon, and
may be attached to another counterpart, identical in form thereto, but having
attached to it one or more additional signature pages.
22
IN WITNESS WHEREOF, the
parties have executed and entered into this Agreement of the Company as of the
day first above set forth.
|
HBJ
PLAINFIELD LLC
|
|
| By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
|
Title:
President, Secretary & Treasurer
|
|
|
PLAINFIELD
ENTERPRISES HOLDINGS LLC
|
|
| By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
|
Title:
Vice President, Secretary &
Treasurer
|
23
EXHIBIT
A
CAPITAL
CONTRIBUTIONS
|
Class A (Voting)
Units
|
||
|
Member
|
No. of
Units
|
Contribution
|
|
HBJ
Plainfield LLC
|
1
|
$0.01
|
|
Class B (Non-Voting)
Units
|
||
|
Member
|
No. of
Units
|
Contribution
|
|
Plainfield
Enterprises Holdings LLC
|
9,999
|
$10.00
|
24