AMENDED AND RESTATED OPERATING AGREEMENT OF PENINSULA GAMING, LLC
EXHIBIT
3.2
AMENDED
AND RESTATED
OF
THIS
AMENDED AND RESTATED OPERATING AGREEMENT (the “Agreement”) of
Peninsula Gaming, LLC (the “Company”) is made and
entered into to be effective for all purposes as of August 6, 2009 by and
between the Company and Peninsula Gaming Partners, LLC, as the sole Member of
the Company (the “Sole
Member”).
R E C I T A L
S:
WHEREAS,
the Company was formed on February 27, 2004, by filing a Certificate of
Formation with the office of the Secretary of State of the State of
Delaware;
WHEREAS,
the Company and the Sole Member are parties to an Operating Agreement, dated
June 14, 2004 (the “Original Agreement”)
which sets forth their agreement with respect to the conduct of the affairs of
the Company and the Sole Member’s rights and obligations with regard to its
interests in the Company;
WHEREAS,
the Company and the Sole Member desire to amend and restate the Original
Agreement in its entirety as set forth herein;
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are acknowledged, the undersigned hereby agree that the Original Agreement
is hereby amended and restated in its entirety as follows:
1. Formation. The
Company was formed as a limited liability company under the Delaware Limited
Liability Company Act, 6 Del. C. §§18-101, et. seq., (as amended from
time to time, the “Delaware
Act”). The Sole Member is hereby authorized to file and record
any amendments to the Certificate of Formation of the Company and such other
documents as may be required or appropriate under the Delaware Act or the laws
of any other jurisdiction in which the Company may conduct business or own
property.
2. Name and Principal Place of
Business.
(a) The name
of the Company is Peninsula Gaming, LLC. The Sole Member may change
the name of the Company or adopt such trade or fictitious names for use by the
Company as the Sole Member may from time to time determine. All
business of the Company shall be conducted under such name, and title to all
assets or property owned by the Company shall be held in such name.
(b) The
Company shall maintain its principal business office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.,
▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇, or at such other place or places as may be
designated from time to time by the Sole Member.
3. Registered Agent and
Registered Office. The
registered agent of the Company (the “Registered Agent”)
shall be The Corporation Trust Company and the registered office of the
Company (the “Registered Office”)
shall be located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇. The Registered Agent and the Registered Office of the Company
may be changed from time to time by the Sole Member.
4. Term. The
term of the Company is deemed to have commenced on the date the Certificate of
Formation of the Company was filed with the Secretary of State of the State of
Delaware and shall continue until terminated pursuant to the provisions of this
Agreement.
5. Purpose. The
principal purpose and business of the Company shall be to engage in any lawful
act or activity for which a limited liability company may be organized under the
Delaware Act, including, without limitation, either directly or indirectly by
being a member, shareholder, partner or venturer of one or more entities, and to
engage in one or more of the following activities: acquire, own,
hold, service, manage, develop, operate, lease, finance, refinance, mortgage,
market, promote, sell and otherwise deal real and personal property interests
and conduct such other activities as may be necessary, advisable, convenient or
appropriate to promote or conduct the business of the Company as set forth
herein, including, but not limited to, entering into partnership agreements in
the capacity of a general or a limited partner, becoming a member of a joint
venture or a limited liability company, owning stock in corporations and the
incurring of indebtedness and the granting of liens and security interests on
the real and personal property of the Company; it being agreed that each of the
foregoing is in the ordinary course of the Company’s business.
6. Sole
Member. The
Sole Member, whose address is set forth in Section 19(a) of this
Agreement, is the single and sole Member of the Company and shall be shown as
such on the books and records of the Company. No transfer of a
Membership Interest in the Company shall be effective, and no other Person shall
be admitted as a Member of the Company, and no additional Interest in the
Company shall be issued, and any purported transfer or issuance of a Membership
Interest in the Company or admission as a Member of the Company shall be void
ab initio and
of no effect, unless (i) such transfer, issuance or admission is expressly
permitted by this Agreement, (ii) the Sole Member approves such transfer,
issuance or admission in its sole discretion, and (iii) prior to the
effectiveness of such transfer, issuance or admission, the Company has received,
at its request, an opinion of counsel from a law firm nationally recognized in
federal income tax matters to the effect that such transfer, issuance or
admission will not cause the Company to be treated as an association or publicly
traded partnership taxable as a corporation for federal income tax
purposes.
7. Gaming
Licenses. (a) The
Company is required to notify the Iowa Racing and Gaming Commission (“IRGC”) as to the
identity of (and may be required to submit background information regarding)
each director, corporate officer and owner, member, partner, joint venturer,
trustee or any other Person, including any Member, who has a Beneficial Interest
of five percent (5%) or more, direct or indirect, in any subsidiary of the
Company regulated by or subject to the jurisdiction of the IRGC (each, a “Regulated
Subsidiary”). The IRGC may also request a list of Persons,
including Members, holding a Beneficial Interest of less than five percent (5%)
in any such Regulated Subsidiary.
2
(b) Members
that are required to be licensed or found suitable by a Gaming Authority
(including the IRGC) in order to own a Beneficial Interest in the Company or
actively engage in the management of the Company shall timely submit all
information and perform in a timely fashion any and all acts required to be
submitted or performed in connection with obtaining a Gaming License issued by
such Gaming Authority (including the IRGC). All Members shall also
timely submit all information and perform in a timely fashion any and all acts
required to be submitted and performed in connection with the license required
of the Company or any of its subsidiaries to operate an excursion gambling boat
and of Members to hold Beneficial Interests in an Iowa gaming
licensee. The Members acknowledge that this Agreement is subject to
review by the IRGC and any other applicable Gaming Authority, and that the
Company and/or any Member may be required to make available, upon written
request by the IRGC or such Gaming Authority or any of their duly authorized
representatives, information in respect of such Members, including background
information of such Members and their respective directors, officers, owners,
partners, joint venturers or trustees. To the extent that any Member
receives such a request, such Member agrees to provide copies of such documents
to the Company in order to respond to such request. If any Gaming
Authority, including the IRGC, requires a record or beneficial owner of
Membership Interests to be licensed, qualified or found suitable, such owner
must apply for a Gaming License, qualification or finding of suitability within
the time period specified by such Gaming Authority. Such owner shall
pay all costs of obtaining such Gaming License, qualification or finding of
suitability. In the event that any Member, or any of such Member’s
subcontractors, agents, or advisors, should fail to comply with the terms and
provisions of this Agreement relating to the retention and production of
documents or any requirement to be licensed, qualified or found suitable, such
Member (1) agrees to indemnify and make whole the Company from any loss as the
result of the refusal or non-compliance in maintaining or producing documents in
accordance with the provisions herein and (2) acknowledges that the Membership
Interests such Member holds will be subject to mandatory redemption by the
Company as set forth in Section 17(d).
8. Management.
(a) Generally. The
business and affairs of the Company shall be managed by or under the authority
of the Sole Member. The Sole Member shall have the power to do any
and all acts necessary or convenient to or for the furtherance of the purposes
described herein, including all powers, statutory or otherwise, possessed by
members and managers under the Delaware Act or other applicable laws of the
State of Delaware. The Sole Member shall cause the Company to comply
with its obligations under this Agreement.
(b) Officers.
(i) Generally. The
officers of the Company shall be appointed by the Sole Member and shall include
a Chief Executive Officer, a Chief Financial Officer, a President and a
Secretary. The Sole Member may also appoint such other officers and
agents as the Sole Member shall deem appropriate. Any number of
offices may be held by the same person. The officers of the Company
shall only have the authority to bind the Company as the Sole Member from time
to time shall prescribe.
(ii) Election. Each
officer of the Company shall serve at the pleasure of the Sole Member until the
earlier of (A) such officer’s death, retirement, resignation or removal,
and (B) until such officer’s successor has been duly elected and
qualified. Any officer of the Company may be removed by the Sole
Member at any time, with or without cause, and a vacancy in any office shall be
filled by the Sole Member.
(iii) Standard of
Care. Each officer of the Company shall perform his or her
duties as an officer in good faith, in a manner he reasonably believes to be in
the best interest 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 or her
3
duties
shall not have any liability by reason or being or having been an officer of the
Company.
(iv) Chief Executive
Officer. The Chief Executive Officer shall be the chief
executive officer of the Company and shall have such functions, authority and
duties as from time to time may be prescribed by the Sole Member.
(v) Chief Financial
Officer. The Chief Financial Officer shall be the chief
financial officer of the Company and shall have such functions, authority and
duties as from time to time may be prescribed by the Sole Member.
(vi) President. The
President shall be the president of the Company and shall have such functions,
authority and duties as from time to time may be prescribed by the Sole
Member.
(vii) Secretary. The
Secretary shall keep a record of all proceedings of the Sole
Member. The Secretary shall have such other functions, authority and
duties as from time to time may be prescribed by the Sole Member. The
Secretary shall have custody of the seal of the Company and the Secretary (or in
the absence of the Secretary, any Assistant Secretary) shall have authority to
affix the same to any instrument requiring it, and when so affixed it may be
attested by the signature of the Secretary or an Assistant
Secretary. The Sole Member may give general authority to any other
officer to affix the seal of the Company and to attest such, affixing of the
seal.
(viii) Other
Offices. Any officer who is elected or appointed from time to
time by the Sole Member and whose duties are not specified in this Agreement
shall perform such duties and have such powers as may be prescribed from time to
time by the Sole Member.
(c) Limited
Liability. To the fullest extent permitted under applicable
law, neither the Sole Member nor any officer of the Company shall be deemed to
violate this Agreement or be liable, responsible or accountable in damages or
otherwise to any other Member or officer or the Company for any action or
failure to act, including but not limited to, under any theory of fiduciary duty
or obligation, unless such violation or liability is attributable to the Sole
Member or such officer’s gross negligence, willful misconduct, bad faith or a
continuing material breach of this Agreement. Without limiting the
generality of the foregoing, the Sole Member and each such officer shall, in the
performance of his or its duties, be fully protected in relying in good faith
upon the records of the Company and upon information, opinions, reports or
statements presented to the Sole Member or such officer by any other person or
entity as to matters the Sole Member or such officer reasonably believes are
within such other person’s or entity’s professional or expert competence and
that has been selected with reasonable care by or on behalf of the
Company. The Sole Member shall be deemed by the execution of this
Agreement to acknowledge and agree that each officer, in accepting its duties
hereunder, disclaims, to the maximum extent permitted under applicable law, any
fiduciary duty or obligation it may have to the Company and the Sole Member as a
result of its acceptance of its duties, responsibilities and obligations
hereunder.
(d) Indemnification. To
the fullest extent permitted under applicable law, the Company shall indemnify
and hold harmless any person or entity (an “Indemnified Party”)
who
4
was or is
a party, or is threatened to be made a party, to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (including any action by or in the right of the Company) by reason
of or arising from any acts or omissions (or alleged acts or omissions) on
behalf of the Company or in furtherance of the Interests of the Company arising
out of the Indemnified Party’s activities as a Member, officer, employee,
trustee or agent of the Company against losses, damages or expenses (including
attorneys’ fees, judgments, fines and amounts paid in settlement) actually and
reasonably incurred by such Indemnified Party in connection with such action,
suit or proceeding and for which such Indemnified Party has not otherwise been
reimbursed, so long as such Indemnified Party did not act in bad faith or in a
manner constituting gross negligence or willful misconduct or materially breach
this Agreement. The termination of any action, suit or proceeding by
judgment, order, settlement or upon a plea of nolo contendere or its
equivalent shall not of itself (except insofar as such judgment, order,
settlement or plea shall itself specifically provide) create a presumption that
the Indemnified Party acted in bad faith or in a manner constituting gross
negligence or willful misconduct or materially breached this
Agreement.
9. Capital Contributions and
Percentage Interests. The
Sole Member was admitted as the sole Member of the Company without making a
contribution or being obligated to make a contribution to the
Company. As the single and sole Member of the Company, the Sole
Member was issued one-hundred (100) Membership Interests, and the Percentage
Interest of the Sole Member as of the date hereof is one-hundred percent
(100%).
10. Additional Capital
Contributions. If,
at any time or from time to time, additional funds are required by the Company
to meet the obligations or needs of the Company, including, without limitation,
to satisfy any operating deficit, and there are not sufficient reserves held by
the Company or available cash flow, the Sole Member may (but shall not be
obligated to) make further capital contributions in the amount determined in the
Sole Member’s sole discretion.
11. Tax
Matters. The
Company is a domestic entity with a single owner and is to be disregarded as an
entity separate from its owner for U.S. federal income tax purposes as provided
in Treas. Reg. §301.7701-3. The Company’s books of account shall be
maintained on a basis consistent with such treatment and on the same basis
utilized in preparing the single owner’s U.S. federal income tax
return. The Sole Member shall take all reasonable action, including
the amendment of this Agreement and the execution of other documents, as may
reasonably be required in order for the Company to be disregarded as an entity
separate from its owner for U.S. federal income tax purposes.
12. Distributions. Distributions
shall be made to the Sole Member at the times and in the aggregate amounts
determined by the Sole Member.
13. Dissolution and
Termination.
(a) The
Company shall be dissolved and its business wound up upon the earlier to occur
of any of the following events:
(i) December
31, 2050, unless continued prior to such date by the written consent of the Sole
Member and by amendment to the Certificate of Formation of the
Company;
(ii) at the
election of the Sole Member;
5
any event
that makes it unlawful for the business of the Company to be carried on by the
Sole Member and the Sole Member determines in its sole discretion that no action
may be taken that would permit the Company to carry on its business in
accordance with applicable law including, without limitation, applicable Gaming
Laws; or
(iii) any other
event causing a dissolution of a limited liability company under the Delaware
Act.
(b) Except as
otherwise provided in this Agreement, upon dissolution of the Company, the
business and affairs of the Company shall be wound up as provided in this Section 13(b). The
Sole Member shall wind up the Company’s affairs. The liquidation
shall take place without the appointment of a liquidator. Upon
winding up the Company, the assets of the Company shall be distributed as
follows:
(i) first, to
creditors in satisfaction of liabilities of the Company (whether by payment or
by establishment of reserves as determined by the Sole Member in its sole
discretion); and
(ii) thereafter,
to the Sole Member.
14. Liability of the Sole
Member. Except
as provided by law or as specifically provided otherwise herein, 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 the Sole Member shall not be obligated personally for any such
debt, obligation or liability of the Company solely by reason of being the Sole
Member. Except as provided by law or as specifically provided
otherwise herein, the liability of the Sole Member shall be limited to the
amount of capital contributions, if any, required to be made by the Sole Member
in accordance with the provisions of this Agreement, but only when and to the
extent the same shall become due pursuant to the provisions of this
Agreement.
15. Books, Records, Accounting
and Reports.
(a) Books and
Records. The Company shall maintain, or cause to be
maintained, in a manner customary and consistent with good accounting
principles, practices and procedures, a comprehensive system of office records,
books and accounts (which records, books and accounts shall be and remain the
property of the Company) in which shall be entered fully and accurately each and
every financial transaction with respect to the ownership and operation of the
property of the Company. Such books and records of account shall be
prepared and maintained at the principal place of business of the Company or
such other place or places as may from time to time be determined by the Sole
Member. The Sole Member or its duly authorized representative shall
have the right to inspect, examine and copy such books and records of account at
the Company’s office during reasonable business hours. A reasonable
charge for copying books and records may be charged by the Company.
(b) Accounting and Fiscal
Year. The books of the Company shall be kept on the accrual
basis and the Company shall report its operations for tax purposes on the
accrual method. The fiscal year of the Company shall end on December
31 of each year, unless a different fiscal year shall be required by the
Code.
6
Reserves. The
Sole Member may, subject to such conditions as it shall determine, establish
reserves for the purpose and requirements as they may deem
appropriate.
16. Certificate of Membership
Interest. The Membership Interests issued under this Agreement
shall constitute “securities” as defined in and governed by Article 8 of the
Uniform Commercial Code of the State of Delaware and all Membership Interests
shall be evidenced by one or more certificates executed by one (1) officer of
the Company, each of which shall bear the following legend:
THIS
CERTIFICATE EVIDENCES AN INTEREST IN PENINSULA GAMING, LLC AND SHALL BE A
“SECURITY” AS DEFINED IN AND GOVERNED BY ARTICLE 8 OF THE UNIFORM COMMERCIAL
CODE OF THE STATE OF DELAWARE. THE SECURITIES EVIDENCED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE “ACT”), OR ANY OTHER
SECURITIES LAW, AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION
THEREUNDER.
17. Gaming
Control.
(a) Applicability. This
Agreement and each of the terms and provisions contained herein are governed by
and subject to all applicable Gaming Laws.
(b) Licensing. Any
Member of the Company (including their respective officers, directors, partners,
managers, employees and equity interest holders) required by any Gaming
Authority to hold a Gaming License required by any applicable Gaming Laws shall
first procure and thereafter maintain in full force and effect a Gaming License
before such Member shall exercise influence over the conduct of the gaming
operations of the Company or any Regulated Subsidiary.
(c) Sale, Assignment, Transfer,
Pledge or Other Disposition. Notwithstanding any provision to
the contrary in this Agreement, the transfer or issuance of Membership Interests
shall be ineffective unless the transferee or the holder of such Interests or
securities obtains applicable Gaming License or it is determined by the
applicable Gaming Authority, that no such applicable Gaming License need be
obtained in connection with such transfer, grant or issuance.
(d) Required Regulatory
Redemptions or Repurchases. The Company’s Membership Interests
shall each be subject to redemption or repurchase as set forth below
if:
(i) the
holder of such Membership Interests or securities is required by any Gaming
Authority to divest itself of such Membership Interests,
(ii) the
holder’s ownership of such Membership Interests or securities, as determined by
the Company in its reasonable good faith judgment, could reasonably be expected
to result in the revocation of or imposition of burdensome terms or conditions
on, interfere with, threaten, delay the issuance of or otherwise impair, in each
case, in any material respect any Gaming License of the Company or any Regulated
Subsidiary,
7
(iii) the
holder of such Membership Interests or securities is licensed to hold Membership
Interests in the Company and such Gaming License is subsequently revoked, or
such holder fails to have any Gaming License required for it to be a Member of
the Company and such failure continues for thirty (30) consecutive
days,
(iv) the
holder of such Membership Interests or securities is found not to be suitable
(or found to be unsuitable) or to otherwise qualify under any applicable Gaming
Law and the Company determines, in its reasonable good faith judgment, that such
unsuitability or inability to be qualified could be reasonably expected to
prevent or materially impair the acquisition or retention by it or any Regulated
Subsidiary of any Gaming License, or
(v) the
holder of such interest or security fails to comply with its obligations under
Section 7 hereof.
Upon the
occurrence of any of the events described in clauses (i) through (v) above with
respect to a Member (hereinafter, an “Unsuitable Member”),
the Company shall have the right to purchase (which right shall be assignable by
the Company), upon five (5) days notice to such Unsuitable Member and for ten
(10) days thereafter, the Membership Interests of such Unsuitable Member for an
amount equal to the lesser of (a) such Unsuitable Member’s capital contribution
in respect of such Membership Interests or (b) the current fair market value of
such Membership Interests.
The
purchase price to be paid by the Company to an Unsuitable Member may be paid, at
the option of the Company, in cash or a promissory note with principal and
interest payable annually and amortized over not more than seven (7) years and
bearing interest at a rate per annum equal to the sum of the prime lending rate
published by the Wall Street Journal at the date of redemption plus two percent
(2%). No Unsuitable Member shall be entitled to any compensation from
any Member of the Company, or any affiliate of any of them, by reason of the
redemption or repurchase of such Membership Interests.
(e) Revocability of
License. The Sole Member and any future Members agree that any
license, determination of suitability or other approval issued to any Member or
other Person in connection with the operation of the business of the Company or
any of its subsidiaries or this Agreement shall be deemed to be a revocable
privilege and no holder thereof shall be deemed to have acquired any vested
rights therein or thereunder.
(f) Restrictive
Legends. In addition to any other restrictive legend that may
be imposed on any certificate evidencing ownership of Membership Interest, each
such certificate shall bear the following legends substantially in the form set
forth below:
8
THE SALE,
ASSIGNMENT, TRANSFER, PLEDGE OR OTHER DISPOSITION OF ANY OF THE SECURITIES
EVIDENCED BY THIS CERTIFICATE IS SUBJECT TO CERTAIN REGULATORY RESTRICTIONS
IMPOSED BY GAMING AUTHORITIES HAVING JURISDICTION OVER THE BUSINESS
OPERATIONS OF THE COMPANY, INCLUDING, WITHOUT LIMITATION, THE IOWA RACING AND
GAMING COMMISSION, THE LOUISIANA GAMING CONTROL BOARD AND THE LOUISIANA STATE
RACING COMMISSION. AS SET FORTH IN THE COMPANY’S OPERATING AGREEMENT,
ANY VIOLATION OF THESE RESTRICTIONS MAY RESULT IN, AMONG OTHER THINGS, A
REDEMPTION OR REPURCHASE OF SUCH SECURITIES. IF AT ANY TIME SUCH
GAMING AUTHORITIES FIND THAT AN OWNER OF SUCH SECURITIES IS UNSUITABLE TO
CONTINUE TO HAVE AN INVOLVEMENT IN GAMING IN THE STATE OF IOWA OR LOUISIANA OR
ANY OTHER JURISDICTION IN WHICH THE COMPANY OPERATES ITS BUSINESS, SUCH OWNER
MUST DISPOSE OF SUCH SECURITIES AS PROVIDED BY THE LAWS OF THE STATE OF IOWA AND
THE REGULATIONS OF THE IOWA RACING AND GAMING COMMISSION THEREUNDER AND ALL
OTHER APPLICABLE LAWS.
THE
PURPORTED SALE, ASSIGNMENT, TRANSFER, PLEDGE, OR OTHER DISPOSITION OF ANY
SECURITY OR SECURITIES ISSUED BY A CORPORATION THAT HOLDS A LICENSE IS
CONDITIONAL AND INEFFECTIVE UNTIL APPROVED BY THE LOUISIANA GAMING CONTROL
BOARD. IF THE BOARD FINDS THAT THE OWNER OF THIS SECURITY DOES NOT
MEET THE QUALIFICATION REQUIREMENTS OF THE ACT, THEN THE BOARD MAY SUSPEND OR
REVOKE THE LICENSE OR THE BOARD MAY CONDITION THE LICENSE REQUIRING THAT THE
DISQUALIFIED PERSON OR PERSONS MAY NOT:
A.
RECEIVE DIVIDENDS OR INTEREST ON THE SECURITIES OF THE CORPORATION;
B.
EXERCISE DIRECTLY OR THROUGH A TRUSTEE OR NOMINEE, A RIGHT CONFERRED BY THE
SECURITIES OF THE CORPORATION;
C.
RECEIVE REMUNERATION FROM THE LICENSEE;
D.
RECEIVE ANY ECONOMIC BENEFIT FROM THE LICENSEE;
E.
CONTINUE IN AN OWNERSHIP OR ECONOMIC INTEREST IN THE LICENSEE.
9
Acceptance of Gaming Law
Restrictions. The Members hereby acknowledge and agree to
accept their respective Membership Interest subject to the restrictions
contained in this Section 17 for so long as such restrictions are required by
applicable Gaming Laws.
(g) Gaming Taxes, Assessments,
Privilege Fees, Etc. The Company shall pay all gaming taxes,
assessments, privilege fees and similar charges required to be paid to any
state, county, city, town, municipality or any other government entity thereof
arising out of the gaming operations of the Company.
18. Definitions.
(a) As used
in this Agreement, the following terms shall have the meanings given to them
below, unless the context requires otherwise.
“Beneficial Interest”
of any person means all of the direct or indirect forms of ownership or control,
voting power or investment power of such person, whether held through a
contract, lien, lease, partnership, stockholding, syndication, joint venture,
understanding, relationship, present or reversionary right, title or interest or
otherwise.
“Gaming Authority”
means any agency, authority, board, bureau, commission, departmnt, office or
instrumentality of any nature whatsoever of the United States or foreign
government, any state, province or any city or other political subdivision or
otherwise, whether now or hereafter in existence, or any officer or official
thereof, and any other agency with authority to regulate any gaming operation
(or proposed gaming operation) owned, managed or operated by the Company, the
Sole Member or any of their respective subsidiaries.
“Gaming Laws” means
the gaming laws of any jurisdiction or jurisdictions to which the Company or any
of its subsidiaries is, or may at any time become, subject.
“Gaming License” means
every material license, material franchise, material registration, material
qualification, findings of suitability or other material approval or
authorization required to own, lease, operate or otherwise conduct or manage
riverboat, dockside or land-based gaming activities in any state or jurisdiction
in which the Company or any of its subsidiaries conducts business, and all
applicable liquor licenses.
“Interest” means, with
respect to any Person, the Beneficial Interest or other interest of such Person
in the Company at any particular time under this Agreement, including the right
of such Person to any and all benefits to which such Person may be entitled as
provided in this Agreement, together with the obligations of such Person to
comply with all the terms and provisions of this Agreement.
“Member” means the
Sole Member and any other Person who is admitted as a member of the Company in
accordance with this Agreement and the Delaware Act.
“Membership Interest”
means, as to any Member, such Member’s Interest.
10
“Percentage Interest”
of a Member of the Company shall mean (i) the number of Membership Interests
owned by such Member divided by (ii) the aggregate number of outstanding
Membership Interests.
“Person” means any
individual, partnership, corporation, limited liability company, trust, estate,
association, unincorporated organization or other entity or
association.
19. Miscellaneous.
(a) Notices. All
notices, demands, consents, approvals, requests or other communications which
any party to this Agreement may desire or be required to give hereunder
(collectively, “Notices”) shall be in
writing and shall be given by (i) personal delivery, (ii) facsimile transmission
or (iii) a nationally recognized overnight courier service, fees prepaid,
addressed to such party at the address set forth opposite its name of the
signature page of this Agreement, with a copy to:
|
|
If
to the Company, to:
|
|
|
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
|
|
|
▇▇▇
▇▇▇
|
|
|
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
|
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
|
|
|
If
to the Sole Member, to:
|
Peninsula
Gaming Partners, LLC
|
|
|
c/▇
▇▇▇▇▇▇▇▇▇ & Company, Inc.
|
|
|
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
|
|
|
▇▇▇▇
▇▇▇▇▇
|
|
|
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|
|
Attention:
M . ▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
|
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
|
-and-
|
|
Peninsula
Gaming Partners, LLC
|
|
|
c/o
Cambridge Capital Advisors LLC
|
|
|
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
|
|
|
▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|
|
Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
|
|
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
|
The Sole
Member may designate another addressee (and/or change its address) for Notices
hereunder by a Notice given pursuant to this Section
19(a). A Notice sent in compliance with the provisions of this
Section 19(a)
shall be deemed given on the date of receipt.
(b) Successors and
Assigns. This Agreement shall be binding upon the parties
hereto and their respective executors, administrators, legal representatives,
heirs, successors and assigns, and shall inure to the benefit of the parties
hereto and, except as otherwise provided herein,
then- respective executors, administrators, legal representatives, heirs,
successors and assigns.
11
(c) Severability. In
case any one or more of the provisions contained in this Agreement or any
application thereof shall be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein and other application thereof shall not in any way be affected or
impaired thereby.
(d) Amendments. This
Agreement may be amended or modified only by a written instrument executed by
the Sole Member.
(e) Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to agreements made
and to be performed wholly within that State.
(f) Captions. All
titles or captions contained in this Agreement 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 in this
Agreement.
(g) Creditors Not
Benefited. Nothing contained in this Agreement is intended or
shall be deemed to benefit any creditor of the Company or the Sole Member, and
no creditor of the Company shall be entitled to require the Company or the Sole
Member to solicit or accept any capital contribution for the Company or to
enforce any right which the Company or the Sole Member may have under this
Agreement.
(h) Indemnification of
Organizer. The Sole Member hereby agrees to indemnify and hold
harmless the Person or Persons who signed the Company’s Certificate of
Formation, as filed with the Secretary of State of the State of Delaware (the
“Authorized
Person”) for all other acts taken by the Authorized Person as authorized
person. The Sole Member agree to pay all costs and expenses incurred
by the Authorized Person in organizing the Company including any claims brought
against the Authorized Person and any damages, court costs, attorneys fees and
other costs related to the Authorized Person’s defense of any claim brought or
judgment rendered against the Authorized Person for the Authorized Person’s
actions as authorized person.
* * *
12
IN
WITNESS WHEREOF, the undersigned has executed this Agreement as of the date set
forth in the introductory paragraph hereof.
| PENINSULA GAMING PARTNERS, LLC | |||
|
|
By:
|
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: Chief Financial Officer | |||
| PENINSULA GAMING, LLC | |||
|
|
By:
|
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: Chief Financial Officer | |||
13