Exhibit 10.17
AMENDED AND RESTATED OPERATING AGREEMENT
OF
ISLE OF CAPRI BLACK HAWK L.L.C.
This AMENDED AND RESTATED OPERATING AGREEMENT is made as of this 29/th/ day
of July, 1997 by Casino America of Colorado, Inc. ("Casino America of Colorado")
and Blackhawk Gold, Ltd. ("Blackhawk Gold") and those other persons, if any, who
from time to time become parties to or are otherwise bound by this Agreement as
provided herein.
The parties hereto are parties to and Operating Agreement dated April 25,
1997. The parties wish to amend and restate the Operating Agreement, pursuant to
this Amended and Restated Operating Agreement, which supersedes and replaces the
Operating Agreement, effective as of the Closing Date. The parties therefore
agree as follows:
ARTICLE 1: ORGANIZATION AND DEFINITIONS
1.1 Company Name. The business of the Company will be conducted under the name
"Isle of Capri Blackhawk L.L.C." or any other name determined by the Company in
accordance with governing law.
1.2 Initial Ownership. Upon execution of this Amended and Restated Operating
Agreement, the Ownership Interest of the Company is as set forth below:
Member Ownership Interest Initial Contribution
------ ------------------ --------------------
Blackhawk Gold, Ltd. 45% $7,500,000
Casino America of Colorado, Inc. 55% $9,200,000
The Ownership Interest shall be adjusted from time to time in accordance
with the provisions of this Agreement. The Ownership Interests of the Members
shall at all times be maintained on Appendix I hereto, which shall be amended
chronologically from time to time as necessary. Effective as of the Closing,
Blackhawk Gold has sold to Casino America of Colorado a portion of it's
Ownership Interest representing 4.2% of the total Ownership Interests in the
Company so that, as of the Closing Date, the respective percentage Ownership
Interests are as follows: Blackhawk Gold - 40.8% and Casino America of Colorado
- - 59.2%.
1.3 Colorado Office and Agent. The initial registered office of the Company in
Colorado is located at 1675 Broadway, Suite 1200, Denver, Colorado 80202, and
its initial registered agent at such address is CT Corporation. The Company may
subsequently change its registered office or
registered agent in Colorado in accordance with the Act. The Company's principal
place of business is 711 Washington Loop, Biloxi, Mississippi 39530.
1.4 Term. The Company began on the date its Articles of Organization were filed
with the Colorado Secretary of State and continues until December 31, 2096, or
such earlier date as a Dissolution may occur.
1.5 Foreign Qualification. After formation of the Company under the Act, the
Company will apply for any required certificate of authority to do business in
any other state or jurisdiction where its conducts business, as appropriate.
1.6 Definitions. Terms used with initial capital letters will have the meanings
specified in Exhibit "A", applicable to both singular and plural forms, for all
purposes of this Agreement.
ARTICLE 2: PURPOSES AND POWERS
2.1 Principal Purpose. The business and principal purpose of the Company is to
investigate, seek, acquire and engage in casino gaming in the Black Hawk/Central
City, Colorado area, and to engage in all activities related thereto, including,
without limitation, the operation of restaurants, gift shops and/or a hotel.
2.2 Powers. The Company has all of the powers granted to a limited liability
company under the Act, as well as all powers necessary or convenient to achieve
its purposes and to further its business.
ARTICLE 3: CAPITAL CONTRIBUTIONS
3.1 Initial Capital of the Company. The Members have made an initial Capital
Contribution to the Company and have received the Initial Ownership Interests
set forth in Section 1.2 above.
3.2 No Additional Capital Contributions. Except as agreed by the Members in the
Members Agreement, no Member shall be required to make an additional Capital
Contribution to the Company.
3.3 No Withdrawal. Except as specifically provided in this Agreement, no Member
will be entitled to withdraw all or any part of such Member's capital from the
Company or, when such withdrawal of capital is permitted, to demand a
distribution of property other than cash.
3.4 No Interest on Capital. No Member will be entitled to receive interest on
such Member's Capital Contribution or Capital Account.
3.5 Loans by Members. The Company may borrow money from any Member or Affiliate
for Company purposes on such terms as the Company and such Member or Affiliate
may agree.
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Any such advance or loan will be treated as indebtedness of the Company, and
will not be treated as a Capital Contribution by a Member.
3.6 Capital Accounts. A Capital Account will be maintained for each Member and
credited, charged and otherwise adjusted in accordance with generally accepted
accounting principles consistently applied. Each Member's Capital Account will
be:
[a] Credited with [i] the capital contributions (net of liabilities secured by
such property that the Company takes subject to or assumes), [ii] the
Member's allocable share of Profits and [iii] all other items properly
credited to the Member's Capital Account; and
[b] Charged with [i] the amount of cash distributed to the Member by the
Company, [ii] the Fair Market Value of property distributed to the Member
by the Company (net of liabilities secured by such property that the Member
takes subject to or assumes), [iii] the Member's allocable share of Losses
and [iv] all other items properly charged to the Member's Capital Account.
Any unrealized appreciation or depreciation with respect to any asset
distributed in kind will be allocated among the Members in accordance with the
provisions of Article 5 as though such asset had been sold for its Fair Market
Value on the date of Distribution, and each Member's Capital Account will be
adjusted to reflect both the deemed realization of such appreciation or
depreciation and the Distribution of such property. In determining the Fair
Market Value of any asset of the Company for purposes of any Distribution, the
Company may obtain the written report of any one or more independent qualified
appraisers (or appraisal firms). If more than one appraisal report is obtained
by the Company, Fair Market Value will be determined as the average of such
appraised values. The Company will select each such appraiser (or appraisal
firm), and bear the cost of any such appraisal.
The Capital Account of each Member shall be determined and maintained in
accordance with generally accepted accounting principles consistently applied in
the casino industry. For income tax purposes, the Company shall make all
required elections under Section 704(b) of the Code.
3.7 Transfer. If all or any part of an Ownership Interest is transferred in
accordance with this Agreement, the Capital Account and Ownership Interest of
the Transferor (including a pro-rata share of Capital Contributions) that is
attributable to the transferred interest will carry over to the Transferee.
3.8 Certificates for Units Representing Ownership Interests. Ownership
Interests in the Company shall be represented by Units and a Person's Ownership
Interest shall equal the number of Units owned by such Person divided by the
total number of Units issued and outstanding. The Units shall be represented by
Certificates, which shall be in such form as may be determined by the Managers.
Certificates shall be signed by a majority of the Managers. All Certificates
shall be consecutively numbered or otherwise identified. The name of the Person
to whom the Units are issued, with the number of Units and the date of issue,
shall be entered on the books of the Company. All Certificates surrendered to
the Company for transfer shall be
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canceled and no new Certificate shall be issued until the former Certificate for
a like number of Units shall have been surrendered and canceled, except that in
the case of a lost, destroyed or mutilated certificate a new one may be issued
therefor upon such terms and indemnity to the Company as the Managers may
prescribe. Transfers of Units of the Company shall be made only on the books of
the Company by the holder of record thereof or by his legal representative, who
shall furnish proper evidence of authority to transfer, or by his attorney
thereunto authorized by power of attorney duly executed and filed with the
Company, and, on surrender for cancellation of the Certificate for such Units.
The Person in whose name a Unit or Units stands on the books of the Company
shall be deemed the owner thereof for all purposes as regards the Company.
ARTICLE 4: MEMBERS AND MANAGERS
4.1 Management by Managers. Except as to matters expressly reserved to the
Members by statute or by this Operating Agreement, the business and affairs of
the Company shall be managed by the Managers set forth below, as such Managers
may be changed from time to time as set forth herein. The initial Managers of
the Company shall be John M. Gallaway, Allan B. Solomon, whose address is 711
Washington Loop, Biloxi, Mississippi, and H. Thomas Winn, whose address is 3040
Post Oak Boulevard, Suite 675, Houston, Texas. Each Member shall have the right
to elect one Manager, except that so long as Casino America of Colorado or its
Affiliates own a Majority In Interest of the Company, Casino America of Colorado
or its Affiliates shall be entitled to elect a majority of the Managers, which
initially shall be two Managers, and Blackhawk Gold shall be entitled to elect
one Manager. Each Member shall have the right to remove, replace, fill a vacancy
or designate a temporary replacement for the Manager or Managers elected by it.
Managers shall hold office for a term of one year from election, or until
the next Annual Meeting of Members. Any action provided for in the Agreement
that may be taken by the Company may, except as otherwise provided in this
Agreement, only be taken with the consent of a majority of the Managers or by
the officers of the Company to the extent a majority of the Managers have
delegated authority with respect to such actions to such officers. Except as
provided in Section 4.9 below or as to any other matter the Members agree shall
require a unanimous vote, actions of the Managers shall be by majority vote at
meetings duly called for purposes of taking action at which a quorum is present.
A quorum at any meeting of the Managers shall consist of a majority of the
Mangers then appointed. The Managers may also act by unanimous written consent
in lieu of a meeting.
Meetings of the Managers shall be held no less often than quarterly (one of
which shall be the Annual Meeting of the Members) on dates established therefor
at each preceding Annual Meeting of the Managers. Special meetings of the
Managers shall be held from time to time as called by any of the Managers on no
less than five (5) days' advance notice given in writing by the Manager calling
such meeting, which notice may be given by facsimile, Federal Express or similar
courier service, certified mail or personal delivery. Notices of meetings shall
be effective when sent, if sent by facsimile, or upon receipt, if given by
certified mail, overnight courier or personal delivery, in each case at the
address of each of the Managers on the books and records
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of the Company. The Managers may participate in a meeting by means of conference
telephone or similar communications equipment by which all the members
participating in the meeting can hear each other at the same time. Such
participation will constitute presence in person at the meeting and waiver of
any required notice.
4.2 Member's Representative. Each Member which is not an individual will
designate one or more individuals to act as such Member's duly authorized
representative and agent for purposes of exercising such Member's vote on any
matter involving the Company requiring the approval or action of the Members.
Each Member which is not an individual may also designate one or more
individuals as an alternate in the event that the primary representative is
unavailable to act for any reason. A Member may change any such designation at
any time upon similar notice. The representatives of a Member will cast the vote
of each Member in accordance with such Member's Ownership Interest, as provided
in this Article.
4.3 Majority Voting. All decisions reserved by the Act or this Operating
Agreement to the Members will be made by the affirmative vote of Members owning
more than 50% of the Ownership Interests held by all Members, without regard to
quorum requirements, unless the unanimous vote (under Section 4.9) provisions
apply or except as to any other matter the Member agree shall require a
unanimous vote or as otherwise specifically provided in this Agreement. Any
determination to be made by the Members will be made in each Member's sole and
absolute discretion.
4.4 No Resignation or Retirement. Each Member agrees not to voluntarily resign
or retire as a Member of the Company. However, if such voluntary resignation or
retirement occurs in contravention of this Agreement, the withdrawing Member
will, without further act, become a Transferee of such Ownership Interest (with
the limited rights of a Transferee as set forth in Section 13.6). Any Member who
resigns or retires from the Company in contravention of this Agreement will be
liable to the Company and the other Members for proven monetary damages (but any
such action or proposed action to resign or retire will not be subject to any
equitable action for injunctive relief or specific performance).
4.5 Powers. Each manager is an agent of the Company for the purpose of
conducting its business and affairs. The act of any Manager for apparently
carrying on in the usual way of the Company's business or affairs binds the
Company unless the Manager so acting has, in fact, no authority to act for the
Company in the particular matter and the person with whom such Member is dealing
has knowledge of such lack of authority. The act of any Manager which is not
apparently for the carrying on in the usual way of the Company's business or
affairs does not bind the Company unless authorized in accordance with this
Agreement. Each Manager agrees to act on behalf of the Company only in
compliance with this Agreement, and agrees that any act in contravention of this
Agreement renders such Manager liable to the Company and other Members for
monetary damages and other relief.
4.6 Substitute Members. A Transferee may be admitted as a substitute Member of
the Company only upon the affirmative written agreement of all of the Members
(excluding the Transferor Member), effective upon a date specified (which must
be on or after the effective date of the Transfer, as determined under Section
13.5).
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4.7 Additional Members. Subject to Section 4.9, additional Members of the
Company may be admitted incident to the contribution of money or other property
to the Company (or otherwise) only upon the affirmative written agreement of all
Members, effective upon a date specified by all the Members.
4.8 Officers. The Company, acting through the Managers, may appoint and remove
such officers as it determines to be necessary or desirable to carry out the
day-to-day management of the Company. The Company's officers may include a
president, one or more vice presidents, a secretary and a treasurer, as well as
one or more assistant vice presidents, secretaries and treasurers. Such officers
may also include a chief executive officer, chief operating officer and chief
financial officer. Appointment as an officer or agent of the Company will not,
of itself create any contract rights. The officers of the Company, acting in
their capacity as such, will be agents acting on behalf of the Company as
principal. No officer of the Company has the continuing exclusive authority to
make independent business decisions on behalf of the Company without the
approval of the Managers as set forth in this Article.
4.9 Unanimous Vote. The following actions by the Company will require the
affirmative vote of all the Managers and the Members, without regard to quorum
requirements.
[a] The admission of an additional Member under Section 4.7;
[b] Any non pro-rata distribution, including the non pro-rata distribution of
assets in kind in Liquidation under Section 12.3;
[c] The amendment of this Agreement, except as provided in Section 14.1 of this
Agreement;
[d] The merger of the Company with any other business entity as provided by
governing law; or
[e] The sale of substantially all of the Company's assets.
ARTICLE 5: ALLOCATION OF PROFITS AND LOSSES
5.1 Profits and Losses. For each Fiscal Year, Profits or Losses of the Company
will be an amount equal to the Company's income or loss determined under the
accrual method of accounting, in accordance with generally accepted accounting
principles consistently applied.
5.2 General Allocation Rule. Except as otherwise provided in (or until changed
pursuant to) this Agreement, the Profits or Losses of the Company, including
items of income, gain, loss and deduction for each Fiscal Year, will be
allocated to the Members in proportion to their respective Ownership Interests
as defined herein. Appropriate adjustment during the Fiscal Year of any change
in this allocation will be determined in accordance with Section 706 of the Code
and the Section 706 Regulation to take into account the varying interests of the
Members in the Company during such Fiscal Year, in the manner determined by the
Company.
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5.3 Exception. Notwithstanding the general rule on allocation and for tax
accounting purposes only and not for financial statement purposes or any other
provision of this Operating Agreement, no cash shall be distributed to any
Member if the effect thereof would be to create a deficit in his Capital Account
balance or increase the deficit in his Capital Account below the sum of [1] the
amount (if any,) which he is required to contribute to the Company and [2] said
Member's share of gain which the Company would recognize upon a sale of its
property for an amount equal to the balance of the non-recourse debt encumbering
it, (the "Company's Minimum Gain") and such cash shall be retained by the
Company and shall be distributed to the Member at the earliest time or times
possible when such distributions will not cause such a deficit or increase such
a deficit in the distributee's Capital Account balance. Notwithstanding the
provisions of Section 5.2, the following allocations of net profits and net
losses and items thereof shall be made:
[a] If in any taxable year there is a net decrease in the amount of the
Company's Minimum Gain, each Member shall be allocated items of the
Company's net profits for that year (and, if necessary, subsequent years)
equal to that Member's share of the net decrease in the Company's Minimum
Gain (within the meaning of Treasury Regulation Section 1.704-2(g)(2)). The
items to be so allocated shall be determined in accordance with Treasury
Regulation Section 1.704-2(j). This Section 5.3 is intended to comply with
the Minimum Gain Chargeback requirement in Treasury Regulation Section
1.704-2 and shall be interpreted consistently therewith.
[b] If during any taxable year a Member unexpectedly receives any adjustments,
allocations or distributions described in Treasury Regulation Section
1.704-1(b)(2)(ii)(d)(4), (5), or (6), then items of net profits shall be
specifically allocated to each Member in an amount and manner sufficient to
eliminate, to the then required by Treasury Regulation Section
1.704-(1)(b)(2)(ii)(d), the deficit in the Capital Account of such Member
as quickly as possible, provided that an allocation pursuant to this
Section 5.3[b] shall be made only if and to the extent that such Member has
an adjusted Capital Account deficit after all other allocations provided
for in this Article 5 have been tentatively made and as if this Section
5.3[b] were not in this Agreement. This Section 5.3[b] is intended to
comply with the Qualified Income Offset requirements in Treasury Regulation
Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently
therewith.
It is the intent of the Members that the allocations provided for in this
Operating Agreement have "substantial economic effect," as the term is defined
in Section 704(b) of the Code. Notwithstanding anything in this Section 5.3 to
the contrary, nothing contained in this Section 5.3 shall serve to restrict any
distribution by the Company to any Member.
5.4 Tax Allocations. Allocation of items of income, gain, loss and deduction of
the Company for federal income tax purposes for a Fiscal Year will be allocated,
as nearly as is practicable, in accordance with the manner in which such items
are reflected in the allocations of Profits and Losses among the Members for
such Fiscal Year. To the extent possible, principles identical to those that
apply to allocations for federal income tax purposes will apply for state and
local income tax purposes.
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5.5 Transfer. Except as otherwise provided in Section 5.2, if an Ownership
Interest is transferred during any Fiscal Year (whether by Transfer or
liquidation of an Ownership Interest, or otherwise), the books of the Company
will be closed as of the effective date of Transfer. The Profits or Losses
attributed to the period from the first day of such Fiscal Year through the
effective date of Transfer will be allocated to the Transferor, and the Profits
or Losses attributed to the period commencing on the effective date of Transfer
will be allocated to the Transferee. In lieu of an interim closing of the books
of the Company and with the agreement of the Transferor and Transferee, the
Company may agree to allocate Profits and Losses for such Fiscal Year between
the Transferor and Transferee based on a daily proration of items for such
Fiscal Year or any other reasonable method of allocation (including an
allocation of extraordinary Company items, as determined by the Company, based
on when such items are recognized for federal income tax purposes).
5.6 Contributed Property. All items of income, gain, loss and deduction with
respect to property contributed (or deemed contributed) to the Company will,
solely for tax purposes, be allocated among the Members as required by Section
704(c) of the Code so as to take into account the variation between the tax
basis of the property and its Fair Market Value at the time of contribution. For
example, if there is built-in gain with respect to contributed property, upon
the Company's sale of that property the pre-contribution taxable gain (as
subsequently adjusted under the Section 704(c) Regulations during the period
such property was held by the Company) would be allocated to the contributing
Member (and such pre-contribution gain would not again create a Capital Account
adjustment since the property was credited to Capital Account upon contribution
at its Fair Market Value). Except as limited by the following sentence, the
allocation of tax items with respect to Section 704(c) property to Members not
contributing such property will, to the extent possible, be equal to the
allocation of the corresponding book items made to such noncontributing Members
with respect to such property. If book allocations of cost recovery deductions
(such as depreciation or amortization) exceed the tax allocations of those items
so that the ceiling rule of the Section 704(c) Regulations applies, any curative
or remedial allocations of tax items will be made as the Company may determine.
All tax allocations made under this provision will be made in accordance with
Section 704(c) of the Code and the Section 704(c) Regulations.
5.7 Tax Credits. Any tax credit, and any tax credit recapture, will be
allocated to the Members in the same ratio that the federal income tax basis of
the asset (to which such tax credit relates) is allocated to the Members under
the Section 46 Regulations, and if no basis is allocated, in the same manner as
Profits are allocated to the Members under Section 5.2.
ARTICLE 6: DISTRIBUTIONS
6.1 Prorata Distributions. The Company will make distributions to the Members
in proportion to their Ownership Interests. Any Net Sales Cash that is realized
incident to the Dissolution and Liquidation of the Company will be distributed
as provided in Article 12, with any Net Sales Cash that is realized other than
incident to the Dissolution and Liquidation of the Company to be distributed in
accordance with this Section 6.1.
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6.2 Nonprorata Distributions. Unless the Members otherwise unanimously agree,
the Members intend that all Distributions will be made to the Members in
proportion to their Ownership Interests. In the event any Distribution is not
made in proportion to their Ownership Interests without the unanimous consent of
the Members, any excess Distribution to a Member will be treated as an advance
or loan made by the Company to such Member, payable to the Company with Interest
and on demand.
6.3 Payment. Any Distribution will be made to a Member only if such Person owns
an Ownership Interest on the date of Distribution, as reflected on the books of
the Company.
6.4 Withholding. If required by the Code or by state or local law, the Company
will withhold any required amount from Distributions to a Member for payment to
the appropriate taxing authority. Any amount so withheld from a Member will be
treated as a Distribution by the Company to such Person. Each Member agrees to
timely file any agreement that is required by any taxing authority in order to
avoid any withholding obligation that would otherwise be imposed on the Company.
6.5 Distribution Limitation. Notwithstanding any other provision of this
Agreement, the Company will not make any Distribution to the Members unless,
after the Distribution, the liabilities of the Company (other than liabilities
to Members on account of their Capital Contributions) have been paid or there
remains property of the Company sufficient to pay them.
6.6 Cash Reserves. The Company will establish and maintain reasonable cash
reserves for [a] operating expenses (other than depreciation, amortization or
similar non-cash allowances), [b] capital improvements, [c] debt service, [d]
working capital and [e] bankroll. The amount of such reserves will be as the
Company may from time to time determine.
ARTICLE 7: MEETINGS OF MEMBERS
7.1 Annual Meeting. Unless the Company determines (whether by vote or
otherwise) that an annual meeting is not necessary or desirable, the annual
meeting of the Members will be held on the second Tuesday of April in each year
at 9:00 a.m. (local time) by Notice to all other Members. The purpose of the
annual meeting is to review the Company's operations for the preceding Fiscal
Year and to transact such business as may come before the meeting. The failure
to hold any annual meeting has no adverse effect on the continuance of the
Company.
7.2 Special Meetings. Special meetings of the Members, for any purpose or
purposes, may be called by any Member or Members owning at least ten percent
(10%) of the Ownership Interests held by all Members by notice to all other
Members.
7.3 Place. The Members calling the meeting may designate any place as the place
of meeting for any meeting of the Members. If no designation is made, or if a
special meeting is otherwise called, the place of meeting will be the Company's
executive offices in Colorado.
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7.4 Notice. Notice of any annual meeting determined by resolution of the
Members or of any special meeting must be given not less than 5 days nor more
than 30 days before the date of the meeting. Such notice must state the place,
day, and hour of the meeting and, in the case of a special meeting, the purpose
for which the meeting is called.
7.5 Waiver of Notice. Any Member may waive, in writing, any notice is required
to be given to such Member, whether before or after the time stated in such
notice. Any Member who signs minutes of action (or written consent or agreement)
will be deemed to have waived any required notice with respect to such action.
7.6 Record Date. For the purpose of determining Members entitled to notice of
or to vote at any meeting of Members, the date on which notice of the meeting is
first given will be the record date for the determination of Members. Any such
determination of Members entitled to vote at any meeting of Members will apply
to any adjournment of a meeting.
7.7 Quorum. A quorum at any meeting of Members shall consist of Members owning
at least 50% of the Ownership Interests held by all Members. Any meeting at
which a quorum is not present may adjourn the meeting to another place, day and
hour without further notice.
7.8 Manner of Acting. If a quorum is present, the affirmative vote of Members
as set forth in Article 4 will be the act of the Company.
7.9 Proxies. At a meeting of the Members, a Member may vote in person or by
written proxy given to another Member. Such proxy must be signed by the Member
or by a duly authorized attorney-in-fact and filed with the Company before or at
the time of the meeting. No proxy will be valid after eleven months from the
date of its signing unless otherwise provided in the proxy. Attendance at the
meeting by the Member giving the proxy will revoke the proxy during the period
of attendance.
7.10 Meetings by Telephone. The Members may participate in a meeting by means of
conference telephone or similar communications equipment by which all Members
participating in the meeting can hear each other at the same time. Such
participation will constitute presence in person at the meeting and waiver of
any required notice.
7.11 Action Without a Meeting. Any action required or permitted to be taken at a
meeting of Members under this Article 7 may be taken without a meeting if the
action is evidenced by one or more written consents describing the action taken,
signed by Members owning total Ownership Interests sufficient for the particular
action as set forth in Article 4. Action so taken is effective when sufficient
Members approving the action have signed the consent, unless the consent
specifies a later effective date. Notice of the action must be provided to all
members.
ARTICLE 8: LIABILITY OF A MEMBER
8.1 Limited Liability: Unless otherwise provided in the Act, the Articles or an
agreement signed by the Member to be subjected to any individual liability, no
Member of the Company is individually liable for the debts or liabilities of the
Company.
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8.2 Liability to Company. Each member is liable to the Company for any Capital
Contribution or Distribution that has been wrongfully or erroneously returned or
paid to such Person in violation of the Act, the Articles of this Agreement.
ARTICLE 9: INDEMNIFICATION
9.1 Indemnification. Except with respect to any actions or omissions described
in Section 14.10 and the last sentence of Section 4.4 and 4.5, the Company will
indemnify, defend and hold harmless any Person who was or is a party (or is
threatened to be made a party) to any Proceeding by reason of the fact that such
Person was a Member, or agent or representative thereof, a Manager, employee or
agent of the Company to the fullest extent permitted by the Act. Any such
indemnification will apply to any Liability actually and reasonably incurred in
connection with the defense or settlement of the Proceeding.
9.2 Expense Advancement. With respect to the expenses actually and reasonably
incurred by a Member or Manager who is a party to a Proceeding, the Company
shall provide funds to such Person in advance of the final disposition of the
Proceeding if the Person furnishes the Company with such Person's written
affirmation of a good-faith belief that such Person has met the standard of
conduct described in the Act, and such Person agrees in writing to repay the
advance if it is subsequently determined that such Person has not met such
standard of conduct.
9.3 Insurance. The indemnification provisions of this Article do not limit a
Member's or Manager's right to recover under any insurance policy or other
financial arrangement by the Company (including any self-insurance, trust fund,
letter of credit, guaranty or surety). If, with respect to any Liability, any
Member or Manager receives an insurance or other indemnification payment which,
together with any indemnification payment made by the Company, exceeds the
amount of such liability, then such Member or Manager will immediately repay
such excess to the Company.
ARTICLE 10: ACCOUNTING AND REPORTING
10.1 Fiscal Year. For income tax and accounting purposes, the Fiscal Year of the
Company will end on the last Sunday in April of each year (unless otherwise
required by the Code).
10.2 Accounting Method. For accounting purposes, the Company will use generally
accepted accounting principles.
10.3 Tax Elections. The Company will have the authority to make such tax
elections, and to revoke any such elections, as the Company may from time to
time determine.
10.4 Returns. The Company will cause the preparation and timely filing of all
tax returns required to be filed by the Company pursuant to the Code, as well as
other tax returns required in each jurisdiction in which the Company does
business.
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10.5 Reports. The Company will furnish a Profit or Loss statement and a balance
sheet to each Member within a reasonable time after the end of each fiscal
quarter. The Company books will be closed at the end of each Fiscal Year and
audited financial statements prepared showing the financial condition of the
Company and its Profits or Losses from operations. Copies of these statements
will be given to each Member. In addition, as soon as is practicable after the
close of each Fiscal Year (and in any event within 90 days following the end of
each Fiscal Year), the Company will provide each member with all necessary tax
reporting information.
10.6 Books and Records. The records of the Company will be kept at the Company's
business office in Colorado, and will be available for inspection and copying by
any Member at such Person's expense, during ordinary business hours.
10.7 Information. Any Member has the right to inspect and copy the Company books
and records as provided in Section 10.6 and to have a formal accounting of
Company affairs whenever circumstances render it just and reasonable. In
addition, subject to reasonable standards as established by the Company from
time to time, and upon reasonable demand for any purpose reasonably related to
the Member's interest as a Member, any Member has the right to obtain from the
Company correct and complete information relating to the state of the Company's
business and its financial condition.
10.8 Banking. The Company may establish one or more bank or financial accounts
and safe deposit boxes. The Company may authorize one or more individuals to
sign checks on and withdraw funds from such bank or financial accounts and to
have access to such safe deposit boxes, and may place such limitations and
restrictions on such authority as the Company deems advisable.
10.9 Tax Matters Partner. Until further action by the Company, Casino America of
Colorado is designated as the tax matters partner under Section 6231(a)(7) of
the Code. The tax matters partner will be responsible for notifying all Members
of ongoing proceedings, both administrative and judicial, and will represent the
Company throughout any such proceeding. The Members will furnish the tax matters
partner with such information as it may reasonably request to provide the
Internal Revenue Service with sufficient information to allow proper notice to
the Members. If an administrative proceeding with respect to a partnership item
under the Code has begun, and the tax matters partner so requests, each Member
will notify the tax matters partner of its treatment of any partnership item on
its federal income tax return, if any, which is inconsistent with the treatment
of that item on the partnership return for the Company. Any settlement agreement
with the Internal Revenue Service will be binding upon the Members only as
provided in the Code. The tax matters partner will not bind any Member to any
extension of the statute of limitations or to a settlement agreement without
such Member's written consent. Any Member who enters into a settlement agreement
with respect to any partnership item will notify the other Members of such
settlement agreement and its terms within 30 days from the date of settlement.
If the tax matters partner does not file a petition for readjustment of the
partnership items in the Tax Court, Federal District Court or Claims Court
within the 90 day period following a notice of a final partnership
administrative adjustment, any notice partner or 5-percent group (as such terms
are defined in the Code) may institute such
12
action within the following 60 days. The tax partner will timely notify the
other Members in writing of its decision. Any notice partner or 5 percent group
will notify any other Member of its filing of any petition for readjustment.
10.10 No Partnership. The classification of the Company as a partnership will
apply only for federal (and, as appropriate, state and local) income tax
purposes. This characterization, solely, for tax purposes, does not create or
imply a general partnership between the Members for state law or any other
purpose. Instead, the Members acknowledge the status of the Company as a limited
liability company formed under the Act.
ARTICLE 11: DISSOLUTION OF THE COMPANY
11.1 Dissolution. Dissolution of the Company will occur only upon the happening
of any of the following events:
[a] an event of Withdrawal (as defined in Section 11.2) of a Member, unless
there is at least one remaining Member (including any Transferee admitted
as a substitute Member);
[b] By unanimous agreement of the Members; or
[c] December 31, 2096.
11.2 Events of Withdrawal. An event of Withdrawal of a Member occurs when any
of the following occurs:
[a] With respect to any Member, upon the Transfer of all of such Member's
Ownership Interest not approved by a majority of the Members (which
Transfer is treated as a resignation);
[b] With respect to any Member, upon the voluntary withdrawal (including any
resignation or retirement in contravention of Section 4.4) of the Member
by notice to all other Members;
[c] With respect to any Member that is a corporation, upon filing of articles
of dissolution of the corporation;
[d] With respect to any Member that is a partnership or a limited liability
company, upon dissolution of such entity;
[e] With respect to any Member who is an individual, upon either the death or
retirement of the individual, or upon such Person's insanity or the entry
by a court of competent jurisdiction of an order adjudicating the
individual to be incompetent to manage such individual's person or estate;
[f] With respect to any Member that is a trust, upon termination of the trust;
13
[g] With respect to any member that is an estate, upon final distribution of
the estate's Ownership Interest;
[h] Any other event which terminates the continued membership of a Member in
the company;
[i] With respect to any Member, the bankruptcy of the Member, so long as there
is one or more remaining Members.
Within 30 days following the happening of any event of Withdrawal with
respect to a Member, such Member must give notice of the date and the nature of
such event to the Company. Any Member failing to give such notice will be liable
in damages for the consequences of such failure as otherwise provided in this
Agreement. Upon the occurrence of an event of Withdrawal with respect to a
Member, such Member will cease to have voting rights under Article 4, and such
Member's Ownership Interest will be deemed transferred to such Member's
Transferee or other successor in interest (which Person, unless already a Member
in such capacity, will have only the limited rights of a Transferee as set forth
in Section 13.6, unless and until admitted as a substitute Member).
11.3 Bankruptcy. Notwithstanding anything else to the contrary contained or in
Section 7-80-801(1)(c) of the Act, the bankruptcy of a Member will not dissolve
the Company. The bankruptcy of a Member will be deemed to occur when such
Person: [a] files a voluntary petition in bankruptcy, [b] is adjudged a bankrupt
or insolvent, or has entered against such Person an order for relief in any
bankruptcy or insolvency proceeding, [c] files a petition or answer seeking for
such Person any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any statute, law or regulation,
[d] files an answer or other pleading admitting or failing to contest the
material allegations of a petition filed against such Person in any proceeding
of this nature, or [e] seeks, consents to or acquiesces in the appointment of a
trustee, receiver or liquidator of all or any substantial part of such Person's
properties. In addition, the bankruptcy of a Member will be deemed to occur if
any proceeding filed against a Member seeking reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under any
statute, law or regulation is not dismissed within 120 days or if the
appointment without the Member's consent (or acquiescence of a trustee, receiver
or liquidator of the Member or of all or any substantial part of such Person's
properties) is not vacated or stayed within 90 days (or if after the expiration
of any stay, if the appointment is not vacated within 90 days).
ARTICLE 12: LIQUIDATION
12.1 Liquidation. Upon Dissolution of the Company, the Company will immediately
proceed to wind up its affairs and liquidate. The Managers will appoint a
liquidating trustee. The winding up and Liquidation of the Company will be
accomplished in a businesslike manner as determined by the liquidating trustee
and this Article 12. A reasonable time will be allowed for the orderly
Liquidation of the Company and the discharge of liabilities to creditors so as
to enable the Company to provide for any losses attendant upon Liquidation. Any
gain or loss on
14
disposition of any Company assets in Liquidation will be allocated to Members
and credited or charged to Capital Accounts in accordance with the provisions of
Articles 3 and 5. Any liquidating trustee is entitled to reasonable compensation
for services actually performed, and may contract for such assistance in the
liquidation process as such Person deems necessary. Until the filing of articles
of dissolution as provided in Section 12.6, the liquidating trustee may settle
and close the Company's business, prosecute and defend suits, dispose of its
property, discharge or make provision for its liabilities, and make
distributions in accordance with the priorities set forth in Section 12.2.
12.2 Priority of Payment. The assets of the Company will be distributed in
Liquidation of the Company in the following order:
[a] First, to non-Member creditors of the Company in order of priority as
provided by law in payment of unpaid liabilities of the Company to the
extent required by law or under agreements with such creditors;
[b] Second, to the setting of any reserves which the Members reasonably deem
necessary for any anticipated, contingent or unforeseen liabilities or
obligations of the Company arising out of or in connection with the
conduct of the Company's business. At the expiration of such period as the
Members reasonably deem advisable, the balance thereof shall be
distributed in accordance with this Section 12.2;
[c] Third, to any Member for any other loans or debts owing to such Member by
the Company;
[d] Fourth, to all Members in proportion to their Capital Account balances to
the extent allowable under Section 5.3 until their Capital Account
balances are reduced to zero; and,
[e] Fifth, the balance, if any, to all Members in proportion to their
Ownership Interests percentages under Section 5.2.
12.3 Distribution to Members. Distributions in Liquidation due to the Members
may be made by either or a combination of the following methods: selling the
Company assets and distributing the net proceeds, or by distributing the Company
assets to the Members at their net Fair Market Value in kind. Any liquidating
Distribution in kind to the Members may be made either by a pro-rata
Distribution of undivided interests or, upon the affirmative Vote of all
Members, by non-pro-rata Distribution of specific assets at Fair Market Value on
the effective date of Distribution. Any Distribution in kind may be made subject
to, or require assumption of, liabilities to which such property may be subject,
but in the case of any non pro-rata Distribution only upon the express written
agreement of the Member receiving the Distribution. Each Member hereby agrees to
save and hold harmless the other Members from such Member's share of any and all
such liabilities which are taken subject to or assumed. Appropriate and
customary prorations and adjustments shall be made incident to any Distribution
in kind. The Members will look solely to the assets of the Company for the
return of their Capital Contributions, and if the assets of the Company
remaining after the payment or discharge of the debts and liabilities of the
15
Company are insufficient to return such contributions, they will have no
recourse against any other Member.
12.4 No Restoration Obligation. Except as otherwise specifically provided in
Article 8, nothing contained in this Agreement imposes on any Member an
obligation to make a Capital Contribution in order to restore a deficit Capital
Account upon Liquidation of the Company. Furthermore, each Member will look
solely to the assets of the Company for the return of such Member's Capital
Contribution and Capital Account.
12.5 Liquidating Reports. A report will be submitted with each liquidating
distribution to Members, showing the collections, disbursements and
distributions during the period which is subsequent to any previous report. A
final report, showing cumulative collections, disbursements and distributions,
will be submitted upon completion of the liquidation process.
12.6 Articles of Dissolution. Upon Dissolution of the Company and the completion
of the winding up of its business, the Company will file articles of dissolution
(to cancel its Articles of Organization) with the Colorado Secretary of State
pursuant to the Act. At such time, the Company will also file an application for
withdrawal of its certificate of authority in any jurisdiction where it is then
qualified to do business.
ARTICLE 13: TRANSFER RESTRICTIONS
13.1 General Restriction. No Member may Transfer all or any part of its
Ownership Interest in any manner whatsoever except: [a] to a Permitted
Transferee as set forth in Section 13.3 or [b] after full compliance with the
right of first refusal set forth in Section 13.4, and in either case only if the
requirements of Section 13.5 have also been satisfied. Any other Transfer of all
or any part of an Ownership Interest is null and void, and of no effect. Any
Member who makes a Transfer of all of such Member's Ownership Interest will be
treated as resigning from the Company on the effective date of such Transfer.
Any Member who makes a Transfer of part (but not all) of such Member's Ownership
Interest will continue as a Member (with respect to the interest retained), and
such partial Transfer will not constitute an event of Withdrawal of such Member.
The rights and obligations of any resigning Member or of any Transferee of an
Ownership Interest will be governed by the other provisions of this Agreement.
13.2 No Member Rights. No Member has the right or power to confer upon any
Transferee the attributes of a Member in the Company. The Transferee of all or
any part of an Ownership Interest by operation of law does not, by virtue of
such Transfer, succeed to any rights as a Member in the Company.
13.3 Permitted Transferee. Subject to the requirements set forth in Section
13.5, a Person may Transfer all or any part of such Person's Ownership Interest:
[a] To an Affiliate of such Person.
[b] To another Member,
16
[c] To the Company,
[d] To a Person approved by all the Members;
[e] To another Person as part of a merger, reorganization, consolidation or
sale of all or substantially all of the assets of a Person that controls
any Member; or
[f] In the form of a pledge or the granting of a security interest to another
Person or a foreclosure or sale in lieu of foreclosure in connection with
the granting of any such pledge or security interest as described in
Section 13.7.
13.4 Right of First Refusal. Prior to any proposed Transfer of all or any part
of an Ownership Interest, other than to a Permitted Transferee pursuant to
Section 13.3, the Transferor must obtain a Third Party Offer. For purposes of
this Section 13.4, a Transfer of an Ownership Interest of a Member shall be
deemed to occur upon any change in control of such Member other than to a
Permitted Transferee pursuant to Section 13.3. The Third Party Offer must not be
subject to unstated conditions or contingencies or be part of a larger
transaction such that the price for the Ownership Interest stated in such Third
Party Offer does not accurately reflect the Fair Market Value (reduced by the
amount of associated liabilities) of such Ownership Interest. The Third Party
Offer must contain a description of all of the consideration, material terms and
conditions of the proposed Transfer. The Transferor will give notice of the
Third Party Offer to the Company and all the Members exclusive of Transferees
who have not been admitted as substitute Members pursuant to Section 4.6 (the
"Other Members') other than the Transferor, together with a written offer to
sell the Ownership Interest (which is the subject of the Third Party Offer) to
the Company and the other Members on the same price and terms as the Third Party
Offer as provided herein. The Company may accept such offer by the Transferor,
in whole but not in part, by giving notice to the Transferor within 30 days
after notice of such offer. Unless otherwise agreed, the closing of such sale
will be held at the Company's registered office in Colorado on a date to be
specified by the Company which is not later than 60 days after the date of the
Company's notice of acceptance. At the closing, the Company will deliver the
consideration in accordance with the terms of the Third Party Offer, and the
Transferor will by appropriate documents assign to the Company the Ownership
Interest to be sold, free and clear of all liens, claims and encumbrances.
Subject to Section 13.5, if the Company has not accepted the Third Party Offer
and closed the purchase in accordance with this Section 13.4, the Other Members
shall have the right, on a pro rata basis in accordance with the ratio of their
Percentage Ownership Interests, to purchase, in whole but not in part, the
Ownership Interest of the Transferor in accordance with the terms of the Third
Party Offer by written notice to the Transferor within 30 days after the
expiration of the thirty-day period for the Company's acceptance. If all of the
other Members reject the offer or if the offer is not closed in accordance with
this Section 13.4, the Transferor will be free for a period of 60 days after the
last day for such acceptance to sell all, but not less than all, of such
Ownership Interest so offered, but only to the Third Party for a price and on
terms no more favorable to the Third Party than the Third Party Offer. If such
Ownership Interest is not so sold within such 60-day period (or within any
extensions of such period agreed to in writing by the Company), all rights to
sell such Ownership Interest pursuant to such Third Party Offer (without making
another offer to the Company
17
pursuant to this Section 13.4) will terminate and the provisions of this Article
will continue to apply to any proposed future Transfer.
13.5 General Conditions on Transfers. No Transfer of an Ownership Interest after
the date of this Agreement will be effective unless all of the conditions set
forth below are satisfied:
[a] Unless waived by the Company, the Transferor signs and delivers to the
Company an undertaking in form and substance satisfactory to the Company to
pay all reasonable expenses incurred by the Company in connection with the
Transfer (including, but not limited to, reasonable fees of counsel and
accountants and the costs to be incurred with any additional accounting
required in connection with the Transfer, and the cost and fees
attributable to preparing, filing and recording such amendments to the
organizational documents or filings as may be required by law);
[b] Such transfer does not require the registration of such transferred
interest pursuant to any applicable federal or state securities laws, and
the Transferor delivers to the Company an opinion of counsel for the
Transferor satisfactory in form and substance to the Company to the effect
that the Transfer of the Ownership Interest is in compliance with the
applicable federal and state securities laws, and a statement of the
Transferee in form and substance satisfactory to the Company making
appropriate representations and warranties in respect to compliance with
the applicable federal and state securities laws and as to any other matter
reasonably required by the Company;
[c] The Company receives an opinion from its counsel that [i] the Transfer does
not cause the Company to lose its classification as a partnership for
federal or state income tax purposes, and [ii] the Transfer, together with
all other Transfers within the preceding twelve months, does not cause a
termination of the Company for federal or state income tax purposes;
[d] The Transferor signs and delivers to the Company a copy of the assignment
of the Ownership Interest to the Transferee, together with the Certificates
for Units representing such Ownership Interest, duly executed for
assignment;
[e] The Transferee signs and delivers to the Company its agreement to be bound
by this Agreement;
[f] Such Transfer does not cause the Company to become a "Publicly Traded
Partnership," as such term is defined in Sections 469(k)(2) or 7704(b) of
the Code;
[g] Such Transfer does not subject the Company to regulation under the
Investment Company Act of 1940, the Investment Advisers Act of 1940 or the
Employee Retirement Income Security Act of 1974, each as amended;
[h] Such Transfer is in compliance with the Colorado Limited Gaming Act;
18
[i] Such Transfer is not made to any Person who lacks the legal right, power or
capacity to own such Interest; and
[j] The Transfer is in compliance with the other provisions of this Article.
Except as the Company and the Transferee may otherwise agree, the Transfer
of an Ownership Interest will be effective as of 12:01 a.m. (Mountain Time) on
the first day of the month following the month in which all of the above
conditions have been satisfied. Upon the effective date, Appendix I will be
deemed amended to reflect the new Ownership Interests.
Notwithstanding anything to the contrary expressed or implied in this
Agreement, the sale, assignment, transfer, pledge or other disposition of any
direct or indirect interest in the Company is subject to the laws of the state
of Colorado and the requirements, limitations and decisions of the Colorado
Division of Gaming and the Colorado Limited Gaming Control Commission.
13.6 Rights of Transferees. Any Transferee of an Ownership Interest will, on the
effective date of the Transfer, have only those rights of an assignee as
specified in the Act and this Agreement unless and until such Transferee is
admitted as a substitute Member. This provision limiting the rights of a
Transferee will not apply if such Transferee is already a Member; provided that,
any Member who resigns or retires from the Company in contravention of Section
4.4 will have only the rights of an assignee as specified in the Act and this
Agreement. Any Transferee of all or any part of an Ownership Interest who is not
admitted as a substitute Member in accordance with this Agreement has no right
[a] to participate or interfere in the management or administration of the
Company's business or affairs, [b] to vote or agree on any matter affecting the
Company or any Member, [c] to require any information on account of Company
transactions, or [d] to inspect the Company's books and records. The only right
of a Transferee of all or any part of an Ownership Interest who is not admitted
as a substitute Member in accordance with this Agreement is to receive the
allocations and Distributions to which the Transferor was entitled (to the
extent of the Ownership Interest transferred) and to receive required tax
reporting information. However, each Transferee of all or any part of an
Ownership Interest (including both immediate and remote Transferees) will be
subject to all of the obligations, restrictions and other terms contained in the
Agreement as if such Transferee were a Member. To the extent of any Ownership
Interest transferred, the Transferor Member does not possess any right or power
as a Member and may not exercise any such right or power directly or indirectly
on behalf of the Transferee. The Members acknowledge that these provisions may
differ from the rights of an assignee as set forth in the Act, and the Members
agree that they intend, to that extent, to vary those provisions by this
Agreement.
13.7 Security Interest. The pledge or granting of a security interest, lien or
other encumbrance in or against all or any part of a Member's Ownership Interest
does not cause the Member to cease to be a Member or constitute an event of
Withdrawal. Upon foreclosure or sale in lieu of foreclosure of any such secured
interest, the secured party will be entitled to receive the allocations and
Distributions as to which a security interest has been granted by such Member.
In no event will any secured party be entitled to exercise any rights under this
Agreement, and such secured party may look only to such Member for the
enforcement of any of its rights as a
19
creditor. In no event will the Company have any liability or obligation to any
Person by reason of the Company's payment of a Distribution to any secured party
as long as the Company makes such payment in reliance upon written instructions
from the Member to whom such Distributions would be payable. Any secured party
will be entitled, with respect to the security interest granted, only to the
Distributions to which the assigning Member would be entitled under this
Agreement, and only if, as and when such Distribution is made by the Company.
Neither the Company nor any Member will owe any fiduciary duty of any nature to
a secured party. Reference to any secured party includes any assignee or
successor-in-interest of such Person.
13.8 Regulatory Compliance Restrictions. Notwithstanding anything to the
contrary in this Agreement or elsewhere, the following provisions shall apply.
The Company shall not issue any voting securities or other voting
interests, except in accordance with the provisions of the Colorado Limited
Gaming Act and the regulations promulgated thereunder. The issuance of any
voting securities or other voting interests shall be deemed not to be issued and
outstanding until (a) the Company shall cease to be subject to the jurisdiction
of the Colorado Limited Gaming Control Commission, or (b) the Colorado Limited
Gaming Control Commission shall, by affirmative action, validate said issuance
or waive any defect in issuance.
No voting securities or other voting interests issued by the Company and no
interests, claim or charge therein or thereto shall be transferred in any manner
whatsoever except in accordance with the provisions of the Colorado Limited
Gaming Act and the regulations promulgated thereunder. Any transfer in violation
thereof shall be void until (a) the Company shall cease to be subject to the
jurisdiction of the Colorado Limited Gaming Control Commission, or (b) the
Colorado Limited Gaming Control Commission shall, by affirmative action,
validate said transfer or waive any defect in said transfer.
If the Colorado Limited Gaming Control Commission at any time determines
that a holder of voting securities or other voting interests of this Company is
unsuitable to hold such securities or other voting interests, then the Company
may, within sixty (60) days after the findings of unsuitability, purchase such
voting securities or other voting interests of such unsuitable Person at the
lesser of (i) the cash equivalent of such Person's investment in the Company, or
(ii) the current market price as of the date of the finding of unsuitability
unless such voting securities or other voting interests are transferred to a
suitable person (as determined by the Commission) within sixty (60) days after
the finding of unsuitability. Until such voting securities or other voting
interests are owned by Persons found by the Commission to be suitable to own
them, (a) the Company shall not be required or permitted to pay any dividend or
interest with regard to the voting securities or other voting interests, (b) the
holder of such voting securities or other voting interests shall not be entitled
to vote on any matter as the holder of the voting securities shall not for any
purposes be included in the voting securities or other voting interests of the
Company entitled to vote, and (c) the Company shall not pay any remuneration in
any form to the holder of the voting securities or other voting interests except
in exchange for such voting securities or other voting interests as provided in
this paragraph.
20
ARTICLE 14: GENERAL PROVISIONS
14.1 Amendment. This Agreement may be amended by the unanimous written agreement
of the Members. Any amendment will become effective upon such approval, unless
otherwise provided. Notice of any proposed amendment must be given at least 5
days in advance of the meeting at which the amendment will be considered (unless
the approval is evidenced by duly signed minutes of action). Any duly adopted
amendment to this Agreement is binding upon, and inures to the benefit of, each
Person who holds an Ownership Interest at the time of such amendment.
Notwithstanding any other provision of this Agreement, with respect to any
Transferee not admitted as a substitute Member, no amendment to Section 5.2
(relating to the general allocation rule for allocation of Profits or Losses),
Section 6.1 (relating to pro-rata Distributions), Section 12.2 (relating to
Distributions in Liquidation) and Section 14.1 (relating to amendment of this
Agreement) will be effective, nor will such Person be required to make any
Capital Contribution, without such Person's written consent. Non-Material
amendments relating to this Agreement or that are necessary for compliance with
applicable law may be made by the Managers.
14.2 Unregistered Interests. Each Member [a] acknowledges that the Ownership
Interests are being offered and sold without registration under The Securities
Act of 1933, as amended, or under similar provisions of state law, [b]
represents and warrants that such Person is an accredited investor as defined
for federal securities laws purposes, [c] represents and warrants that it is
acquiring an Ownership Interest for such Person's own account, for investment,
and with no view to the distribution of the Ownership Interest, and [d] agrees
not to Transfer, or to attempt to Transfer, all or any part of its Ownership
Interest without registration under the Securities Act of 1933, as amended, and
any applicable state securities laws, unless the Transfer is exempt from such
registration requirements.
14.3 Waiver of Partition Right. Each Member waives and renounces any right that
such Person may have prior to Dissolution and Liquidation to institute or
maintain any action for partition with respect to any real property owned by the
Company.
14.4 Waivers Generally. No course of dealing will be deemed to amend or
discharge any provision of this Agreement. No delay in the exercise of any right
will operate as a waiver of such right. No single or partial exercise of any
right will preclude its further exercise, a waiver of any right on any one
occasion will not be construed as a bar to, or waiver of, any such right on any
other occasion.
14.5 Equitable Relief. If any Person proposes to Transfer all or any part of
such Person's Ownership Interest in violation of the terms of this Agreement,
the Company or any Member may apply to any court of competent jurisdiction for
an injunctive order prohibiting such proposed Transfer except upon compliance
with the terms of this Agreement, and the Company or any Member may institute
and maintain any action or proceeding against the Person proposing to make such
Transfer to compel the specific performance of this Agreement. Any attempted
Transfer in violation of this Agreement is null and void, and of no force and
effect. The Person against whom such action or proceeding is brought waives the
claim or defense that an adequate
21
remedy at law exists, and such Person will not urge in any such action or
proceeding the claim or defense that such remedy at law exists.
14.6 Remedies for Breach. The rights and remedies of the Members set forth in
this Agreement are neither mutually exclusive nor exclusive of any right or
remedy provided by law, in equity or otherwise. The Members agree that all legal
remedies (such as monetary damages) as well as all equitable remedies (such as
specific performance) will be available for any breach or threatened breach of
any provision of this Agreement.
14.7 Original. This Agreement is signed in two original documents that are to
be delivered to each initial Member. A photocopy of this Agreement, as signed,
will be delivered to each substitute or additional Member, and each such
photocopy will be deemed to be an original document.
14.8 Notices. Any notices (including any communication or delivery) required or
permitted under this agreement will be in writing and will be addressed to the
Members at their respective addresses, as set forth on the Register of Members
maintained by the Company. All notices may be made by mail, personal delivery,
courier service or facsimile machine, and will be effective upon delivery. Any
Member may change such Person's address by notice to the Company and each other
Member.
14.9 Costs. If the Company or any Member retains counsel for the purpose of
enforcing or preventing the breach or any threatened breach of any provision of
this Agreement or for any other remedy relating to it, then the prevailing party
will be entitled to be reimbursed by the non-prevailing party for all costs and
expenses so incurred (including reasonable attorneys' fees, costs of bonds, and
fees and expenses for expert witnesses) unless the arbitrator or other trier of
fact determined otherwise in the interest of fairness.
14.10 Indemnification. Each Member hereby indemnifies and agrees to hold
harmless the Company and each other Member from any liability, cost or expense
arising from or related to any act or failure to act of such Member which is in
violation of this Agreement.
14.11 Partial Invalidity. Wherever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law. However, if for any reason any one or more of the provisions of this
Agreement are held to be invalid, illegal or unenforceable in any respect, such
action will not affect any other provision of this Agreement. In such event,
this Agreement will be construed as if such invalid, illegal or unenforceable
provision had never been contained in it.
14.12 Entire Agreement. This Agreement, together with the Members Agreement,
contains the entire agreement and understanding of the Members with respect to
its subject matter, and it supersedes all prior written and oral agreements. No
amendment of this Agreement will be effective for any purpose unless it is made
in accordance with Section 14.1.
22
14.13 Benefit. The contribution obligations of each Member will inure solely to
the benefit of the other Members and the Company, without conferring on any
other Person any rights of enforcement or other rights.
14.14 Binding Effect. This Agreement is binding upon, and inures to the benefit
of, the Members and their permitted successors and assigns; provided that, any
Transferee will have only the rights specified in Section 13.6 unless admitted
as a substitute Member in accordance with this Agreement.
14.15 Further Assurances. Each Member agrees, without further consideration, to
sign and deliver such other documents of further assurance as may reasonably be
necessary to effectuate the provisions of this Agreement.
14.16 Headings. Article and section titles have been inserted for convenience of
reference only. They are not intended to affect the meaning or interpretation of
this Agreement.
14.17 Terms. Terms used with initial capital letters will have the meanings
specified, applicable to both singular and plural forms, for all purposes of
this Agreement. All pronouns (and any variation) will be deemed to refer to the
masculine, feminine or neuter, as the identity of the Person may require. The
singular or plural include the other, as the context requires or permits. The
word include (and any variation) is used in an illustrative sense rather than a
limiting sense.
14.18 Governing Law; Conflicts. This Agreement will be governed by, and
construed in accordance with, the laws of the State of Colorado (except to the
extent preempted by any federal law or the gaming laws of any state or
governmental agency having jurisdiction over the affairs of any Member). Any
conflict or apparent conflict between this Agreement and the Act will be
resolved in favor of this Agreement except as otherwise required by the Act. The
Members have entered into a Members Agreement, dated as of the date of this
Agreement, which Members Agreement contains certain provisions as to the affairs
of the Company and the conduct of its business and which, for purposes of the
Act, shall be considered, together with this Agreement, as an "operating
agreement" of the Company.
14.19. Effectiveness. The effectiveness and enforceability of this Agreement are
subject to the occurrence of the Closing. This Agreement shall automatically,
without further action by any of the parties, become effective and enforceable
according to its terms, and shall supersede and replace the Operating Agreement,
as of the Closing Date. In the event the Closing shall not have occurred by
September 3, 1997, this Agreement shall be null and void ab initio and none of
the parties shall have any rights or obligations of any kind under or pursuant
to this Agreement. The Operating Agreement shall remain effective, and its terms
shall apply, until the Closing.
IN WITNESS WHEREOF, the initial Members have signed this Amended and Restated
Operating Agreement of Isle of Capri Black Hawk, L.L.C. as of the date first set
forth above.
23
CASINO AMERICA OF COLORADO, INC.,
a Colorado corporation
By: /s/
----------------------------------------
BLACKHAWK GOLD, LTD.,
a Nevada corporation
By: /s/ H. Thomas Winn
----------------------------------------
H. Thomas Winn, President
24
APPENDIX I
Ownership Interests
Date Ownership Interests
---- -------------------
1. April 25, 1997 Casino America of Colorado, Inc. 51.6%
Blackhawk Gold, Ltd. 48.4%
2. July ___, 1997 Casino America of Colorado, Inc. 55%
Blackhawk Gold, Ltd. 45%
3.* August ___, 1997 Casino America of Colorado, Inc. 59.20%
Blackhawk Gold, Ltd. 40.80%
4.
5.
6.
7.
8.
9.
10.
*Effective at the Closing Date.
EXHIBIT "A"
Definitions
Act: The Colorado Limited Liability Company Act, as amended
from time to time.
Affiliate: An "Affiliate" of a Person means a Person directly or
indirectly controlling, controlled by or under common
control with such Person. For this purpose and for
purposes of the use of the term "control" in this
Agreement, control means the possession, direct or
indirect, of the power to direct or cause the direction
of the management and policies of a Person, whether
through the ownership of voting securities, by contract
or otherwise.
Agreement: This Amended and Restated Operations Agreement, as
amended from time to time.
Articles: The Articles of Organization of the Company as filed
under the Act, as amended from time to time.
Blackhawk Gold: Blackhawk Gold, Ltd., a Nevada corporation, and its
Permitted Transferees (provided that any Transferee will
become a substitute Member only in accordance with the
Agreement).
Capital Account: The book value capital account maintained under Section
3.6.
Capital Contribution: Any contribution by a Member to the Company.
Capital Transaction: Any sale, exchange, condemnation (including any eminent
domain or similar transaction), casualty, financing,
refinancing or other disposition with respect to any
real or personal property owned by the Company which is
not in the ordinary course of business.
Casino America of
Colorado: Casino America of Colorado, Inc., a Colorado
corporation, and its Permitted Transferees (provided
that any Transferee will become a substitute Member only
in accordance with the Agreement).
Closing: The consummation of the sale of $75 million first
mortgage notes due 2004 issued by the Company and Isle
of Capri Black Hawk Capital Corp. to finance the
development, construction, equipping and operation of
the casino gaming project and related facilities in
Black Hawk, Colorado.
Closing Date: The date and time at which the Closing occurs.
Code: The Internal Revenue Code of 1986, as amended from time
to time (including corresponding provisions of
subsequent revenue laws).
Company: Isle of Capri Blackhawk, L.L.C., as formed under the
Articles and as operating under this Agreement.
Dissolution: The dissolution of the Company as provided in Section
11.1.
Distribution: A distribution of money or other property made by the
Company with respect to an Ownership Interest.
Fair Market Value: As to any property, the price at which a willing seller
would sell and a willing buyer would buy such property
having full knowledge of the relevant facts, in an
arm's-length transaction without time constraints, and
without being under any compulsion to buy or sell, or
the value otherwise agreed by the Members to be the Fair
Market Value.
Fiscal Year: The fiscal and taxable year of the Company as determined
under this Agreement, including both 12-month and short
taxable years.
Initial Ownership: The relative Ownership Interest of the Members existing
upon the execution of this Agreement entitling the
holders thereof to all the benefits of ownership in the
Company, but which Ownership Interests may be changed
from time to time as set forth in this Agreement.
Liability: The obligation to pay any judgment, settlement, penalty,
fine or reasonable expense (including attorneys' fees)
incurred with respect to any Proceeding.
Liquidation: The process of terminating the Company and winding up
its business under Article 12 after its Dissolution.
Losses: The Company's net loss (including deductions) for any
Fiscal Year, determined under Section 5.1.
Majority In Interest: More than 50% of the Ownership Interests.
Member: A person who is an initial Member of the Company, or who
is subsequently admitted as a substitute or an
additional Member as provided in this Agreement.
Members Agreement: The agreement, of even date with this Agreement, between
the Company, Blackhawk Gold, Casino America of Colorado,
Casino America, Inc., and Nevada Gold & Casinos, Inc.
Net Sales Cash: Cash receipts of the Company from a Capital Transaction,
less payment of fees or expenses related to the Capital
Transaction.
Notice: Written notice (including any communication or
delivery), actually given pursuant to Section 14.8.
Ownership Interest: With respect to each Person owning an interest in the
Company, all of the interests of such Person in the
Company (including, without limitation, an interest in
Profits and Losses of the Company, a Capital Account
interest, and all other rights and obligations of such
Person under this Agreement), expressed as a percentage
(carried to the nearest one-thousandth of a percent, if
other than an even percentage), as initially set forth
in Section 1.2 and as subsequently changed in accordance
with this Agreement.
Permitted Transferee: A person described in Section 13.3 to whom an Ownership
Interest may be transferred without compliance with a
right of first refusal.
Person: An individual, corporation, trust, partnership, limited
liability company, limited liability association,
unincorporated organization, association or other
entity.
Proceeding: Any threatened, pending or completed claim, action, suit
or proceeding, whether formal or informal, and whether
civil, administrative, investigative or criminal.
Profits: The Company's net profit (including income and gains)
for any Fiscal Year, determined under Section 5.1.
Profits Interest: Each Member's (or Transferee's) percentage interest
(carried to the nearest one-thousandth of a percent, if
other than an even percentage), in the Profits of the
Company, determined under Section 5.2.
Regulations: The Treasury Regulations (including temporary
regulations) promulgated under the Code, as amended from
time to time (including corresponding provisions of
succeeding regulations).
Third Party: With respect to any Member, a Person other than an
Affiliate.
Third Party Offer: A bona fide, non-collusive, binding, arm's length
written offer from a Third Party stated in terms of U.S.
dollars.
Transfer: A sale, exchange, assignment or other disposition of
Ownership Interest, whether voluntary or by operation of
law.
Transferee: A person to whom an Ownership Interest is transferred in
compliance with this Agreement.
Transferor: A person who transfers an Ownership Interest in
compliance with this Agreement.
Withdrawal: The occurrence of an event with respect to a Member
which terminates membership in the Company, as provided
in Section 11.2.
AMENDMENT NO. 1 TO AMENDED AND RESTATED OPERATING
AGREEMENT OF ISLE OF CAPRI BLACK HAWK, L.L.C.
This AMENDMENT NO. 1 TO AMENDED AND RESTATED OPERATING AGREEMENT OF ISLE OF
CAPRI BLACK HAWK, L.L.C. is made as of this 3/rd/ day of October, 2001 by Casino
America of Colorado, Inc. ("Casino America of Colorado") and Blackhawk Gold,
Ltd. ("Blackhawk Gold") and those other persons, if any, who from time to time
become parties to or are otherwise bound by this Agreement as provided herein.
This Amendment amends and restates in its entirety Section 6.5 and Section
6.6 of the Amended and Restated Operating Agreement dated July 29, 1997 by and
between the parties.
6.5 Distribution and Limitation. The Company will make distributions to its
members in accordance with this Agreement of (i) amounts necessary to pay income
tax at a rate of 40% of taxable income allocated to each Member for each fiscal
quarter to be paid no later than 45 days after the end of each such fiscal
quarter and (ii) 100% of excess cash flow, determined on a fiscal quarter basis,
to be paid no later than 45 days after the end of each such fiscal quarter.
Excess cash flow is defined as EBITDA less (i) management fees, (ii) capital
expenditures approved by the Managers, (iii) cash paid for interest, (iv) tax
distributions to Members, (v) scheduled principal payments, and (vi) required
offers to repurchase bonds. Notwithstanding the above, the Distributions to
Members shall not exceed 50% of the excess cash flow, to increase to 75% of
excess cash flow after July 31, 2002, if consolidated total leverage is below
2.00x. Notwithstanding the above, such Distributions shall not be in excess of
that entitled to be made pursuant to any currently existing indenture or credit
facility entered into by the Company, provided that each Member has agreed in
writing to enter into such facility.
6.6 Reserved.
--------
CASINO AMERICA OF COLORADO, INC. BLACKHAWK GOLD, LTD.
a Colorado corporation a Colorado corporation
By: /s/ By: /s/ H. Thomas Winn
------------------------------ -----------------------------
H. Thomas Winn, President