Exhibit 3.4
OPERATING AGREEMENT
OF
PENINSULA GAMING, LLC
THIS OPERATING AGREEMENT (the "Agreement") of Peninsula Gaming, LLC ( the
"Company") is made and entered into to be effective for all purposes as of June
14, 2004 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, to fulfill the purposes and carry on the activities set forth
herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the undersigned hereby agrees that the
operating agreement governing the Company shall be embodied by this Agreement as
follows:
1. Formation. The Company was formed as a limited liability company under
the Delaware Limited Liability Company Act, 6 Del. C. ss.ss.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 400 East
Third Street, P.O. Box 1750, Dubuque, Iowa 52004-1750, 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
1209 Orange Street, Wilmington, Delaware 19801. 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
18(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
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. The restrictions on
the transfer and issuance of Membership Interests in the Company in the
immediately preceding sentence shall be equally applicable to any debt
instrument or other Interest in the Company as to which an opinion of counsel
from a law firm nationally recognized in federal income tax matters, which
opinion is to the effect that such debt instrument or Interest will be treated
as indebtedness for federal income tax purposes, was not rendered in connection
with the issuance of such debt instrument or Interest.
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 Diamond Jo, LLC ("DJL") as long as DJL is a subsidiary of the
Company. The IRGC may also request a list of Persons, including Members, holding
a Beneficial Interest of less than five percent (5%) in DJL.
(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
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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 16(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 President, a Secretary, and a Chief
Executive Officer. 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 be appointed
annually by the Sole Member and 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
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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 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) 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.
(vi) 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.
(vii) 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
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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 severally indemnify and hold harmless any person or entity (an
"Indemnified Party") who 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 shall
be 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 shall be issued one-hundred (100)
Membership Interests, and the initial Percentage Interest of the Sole Member
shall be 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.
(a) The undersigned intends for the Company to be disregarded as an entity
separate from its owner for federal income tax purposes, pursuant to Treasury
Regulation Section 301.7701-3. However, if it is determined that the Company is
a partnership for federal tax purposes, this Agreement shall be amended to
provide for allocation provisions and other provisions necessary and consistent
with partnership status.
(b) To the extent applicable, the Sole Member shall act as the tax matters
partner within the meaning of Section 6231(a)(7) of the Internal Revenue Code of
1986, as amended from time to time (the "Code").
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(c) Except as otherwise provided in this Agreement, all elections required
or permitted to be made by the Company under any applicable tax law shall be
made by the Sole Member in its sole discretion. Notwithstanding anything to the
contrary in this Agreement, neither the Company, the Sole Member, any officer,
employee or agent of the Company, nor any other person shall elect to treat the
Company as an association taxable as a corporation for U.S. federal, state or
local income tax purposes.
12. Distributions.
(a) Tax Distributions. To the extent permitted by applicable law and the
agreements or instruments governing any indebtedness of the Company, the Company
shall for each fiscal year distribute to the Sole Member, cash in an amount
equal to the portion of distributions the Sole Member is required to make to its
members pursuant to Section 9.4(a) of the Sole Member's Amended and Restated
Operating Agreement, dated as of July 15, 1999 (as amended from time to time),
attributable to the Sole Member's interest in the Company. Each such
distribution to the Sole Member shall be referred to in this Agreement as a "Tax
Distribution". The Company shall make each Tax Distribution promptly upon demand
from the Sole Member, such demand specifying the amount of such Tax
Distribution.
(b) Distributions. Distributions other than Tax 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;
(iii) any event that makes it unlawful for the business of the
Company to be carried on by the Sole Member; or
(iv) 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:
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(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.
(c) Company Accountant. The Company shall retain as the regular accountant
and auditor for the Company (the "Company Accountant") the accounting firm
designated by the Sole Member. The fees and expenses of the Company Accountant
shall be a Company expense.
(d) 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.
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16. 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 DJL.
(c) Sale, Assignment, Transfer, Pledge or Other Disposition.
Notwithstanding any provision to the contrary in this Agreement, the transfer or
issuance of Membership Interests or the transfer, grant or issuance of options
or other securities of the Company convertible into or exchangeable for
Membership Interests of the Company ("Convertible Securities") 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 and Convertible Securities shall each be subject to
redemption or repurchase as set forth below if:
(i) the holder of such Interests or securities is required by any
Gaming Authority to divest itself of such Interests,
(ii) the holder's ownership of such Interests or securities, as
determined by the Company in its reasonable good faith judgement, 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 DJL,
(iii) the holder of such Interests or securities is licensed to hold
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 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 judgement, that such unsuitability or inability to be qualified
could be reasonably expected to prevent or materially impair the
acquisition or retention by it or DJL 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
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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 or Convertible Securities 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 Convertible Securities or (b) the
current fair market value of such Membership Interests or Convertible
Securities.
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 or Convertible
Securities.
(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 or
Convertible Securities, each such certificate shall bear the following legends
substantially in the form set forth below:
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
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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.
(g) Acceptance of Gaming Law Restrictions. The Members hereby acknowledge
and agree to accept their respective Membership Interest or Convertible
Securities subject to the restrictions contained in this Section 16 for so long
as such restrictions are required by applicable Gaming Laws.
(h) 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.
17. 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.
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"Gaming Authority" means any agency, authority, board, bureau,
commission, department, 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.
"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.
18. 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:
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If to the Company, to: Peninsula Gaming, LLC
c/o Peninsula Gaming Partners, LLC
400 East 3rd Street
P.O. Box 1750
Dubuque, IA 52004-1750
Facsimile No.: (563) 690-2190
with a copy to: Mayer, Brown, Rowe & Maw LLP
1675 Broadway
New York, NY 10019
Attention: Ronald S. Brody
Facsimile No.: (212) 262-1910
If to the Sole Member, to: Peninsula Gaming Partners, LLC
c/o Jefferies & Company, Inc.
11100 Santa Monica Blvd.
10th Floor
Los Angeles, CA 90025
Attention: M. Brent Stevens
Facsimile No.: (310) 515-5165
- and -
Peninsula Gaming Partners, LLC
c/o Cambridge Capital Advisors LLC
7173 Mission Hills Drive
Las Vegas, NV 89113
Attention: Michael S. Luzich
Facsimile No.: (702) 247-6822
with a copy to: Mayer, Brown, Rowe & Maw LLP
1675 Broadway
New York, NY 10019
Attention: Ronald S. Brody
Facsimile No.: (212) 262-1910
The Sole Member may designate another addressee (and/or change its
address) for Notices hereunder by a Notice given pursuant to this Section 18(a).
A Notice sent in compliance with the provisions of this Section 18(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, their respective
executors, administrators, legal representatives, heirs, successors and assigns.
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(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.
* * *
13
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/ M. BRENT STEVENS
------------------------------
Name: M. Brent Stevens
Title: Chief Executive Officer