EXHIBIT 3.32
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LIMITED LIABILITY COMPANY AGREEMENT
OF
T/SF OPERATING, LLC
Dated as of February 6, 1998
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LIMITED LIABILITY COMPANY AGREEMENT
OF
T/SF OPERATING, LLC
Dated as of February 6, 1998
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The parties to this agreement are T/SF Holdings, LLC, a Delaware
limited liability company (the "Priority Member"), and VS&A-T/SF, LLC, a
Delaware limited liability company ("VS&A"), and Fir Tree Value Fund L.P., Fir
Tree Institutional Value Fund L.P. and Fir Tree Partners L.D.C. (collectively,
the AFir Tree Entities@). VS&A and the Fir Tree Entities are referred to
collectively as the "Common Members".
The parties (the "Members") wish to set forth the terms of the
Company's limited liability company agreement. It is therefore agreed as
follows:
1. Business. The Company shall hold a 1% interest as a member of
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▇▇▇▇▇▇ Publishing, LLC, Galaxy Registration, LLC, GEM Gaming, LLC, Casino
Executive, LLC and GEM Nevada, LLC.
2. Management of the Company.
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2.1 Management by Board. The business and affairs of the Company
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shall be managed under the direction of a board of managers consisting of three
members. The board of managers shall act by majority vote of the total number of
members of the board. The members of the board of managers shall be designated
by vote of the Members voting as follows: The Priority Member shall have 90.9%
of the votes, and the Common Members shall have 9.1% of the votes, allocated
among the Common Members in accordance with their Common Percentages (as defined
in section 4.1). The Members hereby designate Ian ▇.▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇
and ▇▇▇▇▇▇ ▇. ▇▇▇▇ as the initial members of the board of managers. Action may
be taken by the board of managers at a meeting (at which members of the board
may participate in person or by telephone), by polling members of the board
without a meeting, or by a writing signed by a majority of the members of the
board of managers, except that no action may be taken by a writing unless all
members of the board are first given notice of, and a reasonable opportunity to
comment upon, the proposed action. The board of managers shall hold meetings at
such intervals, and shall adopt such rules of procedure, as it may from time to
time determine. Any member of the board of managers may designate another person
to act as his substitute at any meeting or in connection with any action to be
taken by the board of managers. Members of the board of managers shall not be
compensated for their services as such.
2.2 Officers. The board of managers may appoint such officers
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of the Company as the board of managers determines desirable, including, but not
limited to, a
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chairman, a chief executive officer, a president, one or more vice-presidents, a
secretary, a treasurer, and one or more assistant secretaries and assistant
treasurers. The officers of the Company need not be members of the Company and
shall have the powers and duties delegated to them by the board of managers.
Officers of the Company shall serve at the pleasure of the board of managers.
2.3 Persons Employed by the Company. The board of managers may
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cause the Company to employ and compensate such persons, firms or corporations,
including, but not limited to, accountants and attorneys, as it deems advisable
or necessary to carry on, assist or promote the Company's business. In addition,
the board of managers may utilize the services of persons employed by related
persons or entities to provide senior management service to the Company or for
tax, accounting, personnel and other similar services rendered to the Company.
The fact that the board of managers or any Member, or a person associated with a
member of the board of managers or any Member, is employed by, or is directly or
indirectly interested in or connected with, any person, firm or corporation
employed by the Company to render or perform any service shall not prohibit the
board of managers from employing or otherwise dealing with that person, firm or
corporation, and neither the Company nor any of the Members shall have any
rights in or to any income or profits derived therefrom.
2.4 Other Activities of Members. The members of the board of
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managers and any Member may engage or have an interest in other business
ventures of any kind, independently or with others, and neither the Company nor
any other Member shall have any rights in or to those independent ventures.
3. Capital Contributions.
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3.1 Capital Contributions.
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(a) Simultaneously with the execution and delivery of this
agreement, each of the Members is making the capital contribution indicated on
Schedule A opposite that Member's name.
(b) Except as provided in this section 3.1, no Member shall be
required to make any capital contribution to the Company.
3.2 No Withdrawals. No Member shall be entitled to withdraw any
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part of its capital account or capital contribution or to receive any
distribution from the Company except as expressly provided in this agreement.
3.3 No Liability for Capital Contributions. No Member shall be
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required to pay to the Company any deficit in its capital account (upon
dissolution or otherwise). No Member shall have the right to demand or receive
cash or other property for its interest in the Company.
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3.4 No Interest. No Member shall receive any interest on its
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capital contributions or capital account.
4. Distributions.
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4.1 Distributions. Subject to the provisions of Section 4.2,
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distributions shall be made to the Members at the time or times determined by
the board of managers, as set forth in this section 4.1:
As used in this agreement, "Preferred Return" means an 11% cumulative
annually compounded return from the date hereof on the excess of the aggregate
amount of the capital contributions made by the Priority Member pursuant to
section 3.1(a) over the amount of any distributions made to that Member pursuant
to section 4.1(i)(B).
Each distribution shall be allocated as follows:
(i) first, to the Priority Member until the Priority Member shall have
received pursuant to this section 4.1(i) an aggregate amount equal to the sum
of: (A) the Preferred Return for all prior years and for the portion of the
year of the distribution ending with the day of the distribution; and (B) the
aggregate amount of the capital contributions made by the Priority Member
pursuant to section 3.1; and
(ii) the balance, if any, to the Common Members in proportion to their
respective Common Percentages. Each Common Member shall have the Common
Percentage set forth on Schedule A opposite that Common Member's name.
4.2 Tax Distributions. To the extent that for any fiscal year
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the amount of net income and gains of the Company allocated to any Common Member
exceeds the amount of losses of the Company allocated to that Member for that
and prior fiscal years reduced by the amount of net income and gains of the
Company allocated to that Member for prior fiscal years, the board of managers
shall use reasonable efforts to cause the Company to distribute to each Common
Member, as an advance against the amounts thereafter distributable to it
pursuant to section 4.1, no later than April 1 of the following year an amount
of cash equal to (a) the amount reasonably calculated by the board of managers
to equal the amount of the federal, state and local tax liability on that excess
(based on the highest individual or corporate marginal federal income tax rate
for that year and the percentage with respect to state and local income tax
rates for that year that the board of managers determines appropriate), less (b)
the aggregate amount of prior distributions by the Company to that Member (other
than distributions pursuant to this provision). No such distribution shall be
made, however, to the extent that distributions are restricted under the terms
of any note or agreement relating to borrowings by the Company or the Priority
Member or to the extent that the board of managers determines that the cash is
necessary for the operation of the business of the Company. The board of
managers shall, to the extent practical, make distributions under this section
4.2 quarterly based on projections of income. If upon the liquidation of the
Company the aggregate amount of distributions to any Common Member pursuant to
this section 4.2
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exceeds the aggregate amount that would have been distributed to that Member
pursuant to section 4.1 (had there been no distributions pursuant to this
section 4.2), then that Member shall pay to the Company an amount equal to such
excess, to be distributed to the other Members in accordance with section 4.1.
5. Resignations; Transfers.
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5.1 Resignations. No Member may resign from the Company prior
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to the dissolution and winding up of the Company.
5.2 Transfers. No Member may sell, transfer, assign, pledge,
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grant a security interest in or otherwise dispose of or encumber all or any
portion of its membership interest in the Company without the unanimous written
consent of the other Members, and any other purported transfer shall be void,
except that any Member may pledge its interest to First Union National Bank, as
Administrative Agent, pursuant to the Credit Agreement dated as of October 9,
1997.
6. Exculpation; Indemnification.
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6.1 Exculpation. To the extent not inconsistent with applicable
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law, neither any member of the board of managers nor any Member, nor any of
their respective officers, directors, employees or affiliates, nor any officer
of the Company, shall be liable, responsible or accountable in damages or
otherwise to the Company or to any Member for any action taken or for any
failure to act on behalf of the Company in connection with the business or
operations of the Company, unless the act or omission constituted gross
negligence, willful misconduct or a breach of a fiduciary duty to the Company.
6.2 Indemnification. To the extent not inconsistent with
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applicable law, the Company shall indemnify and hold harmless any member of the
board of managers and each Member and their respective officers, directors,
employees and affiliates, and all of the Company's officers, from any loss,
liability, damage or expense (including, but not limited to, any judgment, award
or settlement and reasonable attorneys' fees and other costs or expenses
incurred in connection with the defense of any actual or threatened action,
proceeding or claim) arising out of (a) any acts or omissions or alleged acts or
omissions in connection with their activities or the activities of any of their
respective employees or agents on behalf of the Company or in connection with
the business or operations of the Company, and (b) any liability imposed upon
any of them under any statute, rule or regulation (including, but not limited
to, any statute, rule or regulation relating to environmental matters)
applicable to the Company, or its officers, directors or employees; provided
that the acts or omissions or the alleged acts or omissions upon which the
action or threatened action, proceeding or claim is based did not constitute
gross negligence, willful misconduct or a breach of a fiduciary duty to the
Company by the indemnified party. Reasonable expenses incurred by any such
indemnified party in connection with the matters referred to above may be paid
or reimbursed by the Company in advance of the final disposition of the
proceeding upon receipt by the Company of (i) a written affirmation by the
indemnified party of his or its good faith belief that
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he or it met the standard of conduct necessary for indemnification by the
Company, and (ii) a written undertaking by or on behalf of the indemnified party
to repay such amount if it shall ultimately be determined by a court of
competent jurisdiction that he or it has not met that standard of conduct.
6.3 Contribution. In the event any lender to which the Members
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have pledged their interests in the Company exercises any rights with respect to
that pledge against less than all of the Members, the Members shall reallocate
their interests in the Company to account for that disproportionate exercise.
7. Duration of Company. The Company shall continue in existence until
the earlier of (a) December 31, 2010 and (b) the date the Company is dissolved
in accordance with section 8.
8. Dissolution; Liquidation.
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8.1 Dissolution. The Company shall be dissolved prior to December
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31, 2010 only upon the occurrence of one of the following events:
(a) the unanimous election by the Members to dissolve the
Company; or
(b) the termination of the Company's business as a result of
the sale or other disposition by the Company of substantially all of its
business and assets.
8.2 Liquidation and Distribution of Assets. Upon dissolution of
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the Company, the board of managers shall proceed to sell or liquidate the assets
(to the extent feasible) within a reasonable time and, after paying or making
provision for all liabilities to creditors of the Company, shall distribute the
Company's cash and other assets to the Members in accordance with section 4.1.
9. Accounting and Tax Matters.
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9.1 Fiscal Year. The Company's fiscal year shall be the calendar
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year unless changed by the board of managers.
9.2 Books of Account, etc. Complete and accurate books of account
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shall be kept by the Company at its principal office (or at such other office as
the board of managers may designate) and each Member shall have the right to
inspect those books during normal business hours. The Company's books of account
shall be kept on the cash or accrual basis of accounting, as the board of
managers may determine, in accordance with sound accounting practices and
principles applied in a consistent manner by the Company; all methods of
accounting and treatment of particular transactions reflected on these books
shall be in accordance with the methods of accounting employed for federal
income tax purposes. The determinations of the board of managers with respect to
the treatment of any item or its
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allocation for federal, state or local income tax purposes shall be binding upon
the Members so long as that determination is not inconsistent with any express
provision of this agreement.
9.3 Reports. The Company shall use its best efforts to furnish
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to each of the Members, within (a) 30 days after the end of each month,
unaudited consolidated monthly and year-to-date consolidated statements of
income and a consolidated balance sheet as of the end of that month, and (b) 90
days after the end of each fiscal year, unaudited financial statements of the
Company with respect to that year (including a consolidated balance sheet of the
Company as of the end of the year and a consolidated statement of income and
capital accounts and a consolidated statement of changes in financial position
of the Company for the year).
9.4 Tax Information. Not later than the date of delivery of the
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annual financial statements pursuant to section 9.3, the board of managers shall
furnish to each of the Members any information required by the Members to
complete any income tax return that it is required to file for that year. The
Company shall also furnish tax information to the Members on an interim basis to
the extent the board of managers determines appropriate.
9.5 Tax Allocations. For federal, state and local income tax
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purposes, all items of income, deduction, gain and loss shall be allocated among
the Members on the same basis as profits are allocated and losses are charged as
provided in this section 9 and all items of credit shall be allocated among the
Members in the manner provided for in the Internal Revenue Code and the
applicable Treasury Regulations.
9.6 Capital Accounts. For the purpose of this agreement, the
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balance of the capital account ("Capital Account") of each Member shall be
determined on the basis of an account maintained for the Member as part of the
books of account of the Company. The amount of each Member's Capital Account
shall be equal to the aggregate amount of cash and the fair market value of
property contributed to the Company by the Member, and shall be increased by the
Member's share of income and gains of the Company, and shall be decreased by (a)
the aggregate amount of cash and the fair market value of any property
distributed by the Company (less any liabilities assumed with respect to such
distribution) to the Member and (b) the Member's share of losses of the Company.
9.7 Allocation of Income and Gains. The Company's net income and
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gains for each taxable year shall be allocated for federal income tax purposes
to the Members as follows:
(a) first, to the Members in proportion to their negative capital
account balances until those balances have been eliminated;
(b) then, to the Priority Member, until its capital account balance
equals an amount (the "Section 4.1(i) Amount") equal to the aggregate amount
that it remains entitled to receive pursuant to section 4.1(i); and
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(c) then, the balance to the Common Members in proportion to their
respective Common Percentages as of the end of that taxable year.
9.8 Allocation of Losses. The Company's losses for each taxable year
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shall be allocated for federal income tax purposes to the Members as follows:
(a) first, to the Common Members, in proportion to their Common
Percentages as of the end of that fiscal year, until their capital account
balances have been reduced to zero;
(b) then, to the Priority Member, until its capital account balance
has been reduced to zero; and
(c) then, to the Common Members in proportion to their Common
Percentages as of the end of that taxable year.
9.9 Gross Income Allocations. Notwithstanding the provisions of
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sections 9.7 and 9.8, if (a) the amount of the Preferred Return of the Priority
Member for any taxable year (a "Preferred Return Shortfall Year") exceeds the
amount of the net income of the Company for that taxable year and (b) the amount
of the net income of the Company for any taxable year prior to the Preferred
Return Shortfall Year exceeded the amount of the Preferred Return of the
Priority Member for that prior taxable year, there shall be allocated to the
Priority Member, for the Preferred Return Shortfall Year (and, to the extent
there is insufficient gross income in that year, for subsequent taxable years),
prior to the allocations provided for in sections 9.7 and 9.8 (the amounts of
which will give effect to the gross income allocations provided for in this
section 9.9), such amounts of gross income as will cause the capital account of
the Priority Member, after the allocations of gross income provided for in this
section 9.9 and the allocations provided for in sections 9.7 and 9.8, to reflect
the Priority Member's entitlements pursuant to section 4.1 as of the end of the
taxable year for which the allocations are being made.
9.10 Elections. To the extent that the Company may make elections
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for federal, state or local income tax purposes, the elections shall be made in
a manner best calculated, in the opinion of the board of managers, to minimize
the cash requirements of the Company and the Members. The Members shall treat
all Company items on its federal, state or local income tax returns in a manner
consistent with the treatment of the item on the Company's federal, state or
local income tax return.
9.11 Tax Matters Partner. The Priority Member shall be the tax
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matters partner (within the meaning of section 6231(a)(7) of the Internal
Revenue Code) of the Company.
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10. Miscellaneous.
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10.1 Entire Agreement; Amendment. This agreement contains a
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complete statement of the arrangements with respect to the Company, supersedes
all prior arrangements and understandings with respect to the Company, and may
not be amended except by a writing executed by all of the Members.
10.2 Notices. Any notice or other communication under this
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agreement shall be in writing and shall be considered given when delivered in
person or sent by facsimile, one day after being sent by a major overnight
courier, or four days after being mailed by registered mail, return receipt
requested, to the each of Members at the address specified on Schedule A.
10.3 Governing Law. This agreement shall be governed by and
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construed in accordance with the law of the State of Delaware applicable to
agreements made and to be performed entirely in Delaware.
10.4 Definition. As used in this agreement, the term "affiliate"
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means any person or entity directly or indirectly controlled by, controlling, or
under common control with, any other person or entity.
10.5 Severability. If any provision of this agreement is invalid
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or unenforceable, the balance of this agreement shall remain in effect and shall
be enforceable to the maximum extent permitted by law, and if any provision is
inapplicable to any person or circumstance, it shall nevertheless remain
applicable to all other persons and circumstances.
10.6 Headings. The headings in this agreement are solely for the
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convenience of reference and shall not affect its interpretation.
10.7 Other Action. Each Member shall execute and deliver such
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additional documents and instruments, and shall perform such additional acts, as
may be necessary or appropriate to carry out the terms of this agreement.
10.8 Waiver of Action for Partition. Each Member irrevocably
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waives, during the term of the Company, any right it may have to maintain any
action for partition with respect to the Company or any property of the Company.
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10.9 Third Party Beneficiaries. Nothing in this agreement,
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express or implied, is intended or shall be construed to give anyone other than
the parties to this Agreement or their respective successors or permitted
assigns any legal or equitable right, remedy or claim under or in respect of any
provision contained in this agreement.
T/SF HOLDINGS, LLC
By:
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VS&A-T/SF, LLC
By:
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FIR TREE VALUE FUND L.P.
By:
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FIR TREE INSTITUTIONAL
VALUE FUND L.P.
By:____________________________
FIR TREE PARTNERS L.D.C.
By:____________________________
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Schedule A
Common
Member Contribution Percentage
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T/SF Communications Corporation $450,000
VS&A-T/SF, LLC $ 28,980 64.4%
Fir Tree Value Fund L.P. )
)
Fir Tree Institutional Value Fund L.P. ) $ 16,020 35.6%
)
Fir Tree Partners L.D.C. )
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