Exhibit 3.3
VENETIAN CASINO RESORT, LLC
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS AND USAGE.......................................2
1.1 "Adjusted Capital Account...................................2
1.2 "Affiliate..................................................2
1.3 "Articles...................................................3
1.4 [Intentionally Omitted].....................................3
1.5 "Capital Account............................................3
1.6 "Code.......................................................3
1.7 "Company Minimum Gain.......................................3
1.8 "Depreciation...............................................3
1.9 "Effective Tax Rate.........................................4
1.10 "Final Determination........................................4
1.11 "GAAP.......................................................4
1.12 "Gross Asset Value..........................................4
1.13 [Intentionally Omitted].....................................5
1.14 "Member Minimum Gain........................................5
1.15 "Member Nonrecourse Debt....................................5
1.16 "Member Nonrecourse Deductions..............................5
1.17 "Net Profit" or "Net Loss...................................5
1.18 "Nonrecourse Deductions.....................................6
1.19 "Nonrecourse Liability......................................7
1.20 "Person.....................................................7
1.21 "Preferred Return...........................................7
1.22 [Intentionally Omitted].....................................7
1.23 "Transfer...................................................7
1.24 "Treasury Regulations.......................................7
1.25 "Unpaid Preferred Return....................................7
1.26 "Unrecovered Preferred Capital..............................8
1.27 Cross References............................................8
1.28 Usage Generally.............................................8
ARTICLE II FORMATION; NAME; TERM.......................................9
2.1 Formation...................................................9
2.2 Company Name...............................................10
2.3 Effective Date.............................................10
2.4 Term.......................................................10
2.5 Registered Agent and Office................................10
2.6 Principal Place of Business................................10
2.7 Filings....................................................10
2.8 Purpose....................................................10
2.9 [Intentionally Omitted]....................................11
2.10 [Intentionally Omitted]....................................11
2.11 Authorized Person..........................................11
2.12 Certificates...............................................11
ARTICLE III CONTRIBUTIONS..............................................11
3.1 Capital Contributions......................................11
3.2 Deficit Restoration Obligation.............................12
ARTICLE IV CAPITAL ACCOUNTS; ALLOCATIONS..............................12
4.1 Capital Accounts...........................................12
4.2 Allocation of Net Profit...................................13
4.3 Allocation of Net Loss.....................................13
4.4 Interim Allocations Due to Percentage Interest Adjustment..14
4.5 Regulatory Allocations.....................................14
4.6 Certain Tax Matters........................................16
ARTICLE V DISTRIBUTIONS..............................................17
5.1 General....................................................17
5.2 Tax Distributions..........................................18
5.3 Return of Capital..........................................19
5.4 Limits on Distributions....................................19
ARTICLE VI BOOKS; RECORDS; ACCOUNTING; FINANCIAL AND TAX MATTERS......20
6.1 Accounting Method..........................................20
6.2 Accounting Records.........................................20
6.3 Fiscal Year................................................20
6.4 Reports....................................................20
6.5 Bank and Investment Accounts...............................21
6.6 Records....................................................21
6.7 Tax Matters Partner........................................21
6.8 Classification as a Partnership............................21
ARTICLE VII MANAGEMENT BY THE MANAGING MEMBER..........................22
7.1 Management by the Members..................................22
7.2 Admission of New Members...................................22
7.3 Appointment of Officers....................................23
7.4 Power of Members...........................................23
ARTICLE VIII LIABILITY; EXCULPATION; INDEMNIFICATION....................23
8.1 Liability of Members; Reimbursement of Managing Member.....23
8.2 Duties and Liabilities of Covered Persons..................23
8.3 Indemnification............................................25
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ARTICLE IX TRANSFERS..................................................26
9.1 General Restrictions.......................................26
9.2 Violative Transfers........................................27
9.3 Substituted Member.........................................27
9.4 Approval by the Nevada Gaming Commission...................27
ARTICLE X BANKRUPTCY; TERMINATION; DISSOLUTION; LIQUIDATION AND
WINDING-UP.................................................28
10.1 Bankruptcy.................................................28
10.2 Termination of the Company.................................28
10.3 Liquidation and Winding-Up.................................28
10.4 Survival of Rights, Duties and Obligations.................30
10.5 Claims of the Members......................................30
ARTICLE XI GENERAL PROVISIONS.........................................30
11.1 Notices....................................................30
11.2 Entire Agreement; Non-Waiver...............................31
11.3 Amendments.................................................31
11.4 Further Assurances.........................................31
11.5 Applicable Law.............................................32
11.6 Severability...............................................32
11.7 Counterparts...............................................32
11.8 Table of Contents and Headings.............................32
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AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
VENETIAN CASINO RESORT, LLC
This Amended and Restated Limited Liability Company Agreement
(this "AGREEMENT") of Venetian Casino Resort, LLC, a Nevada limited liability
company (the "COMPANY"), dated as of June 4, 2002, is adopted and entered into
by and between Las Vegas Sands, Inc., a Nevada corporation ("LVSI"), as managing
member ("Managing Member"), and Interface Group Holding Company, Inc., a Nevada
corporation ("Interface Holding"), as non-managing member ("Non-Managing
Member") (each, a "MEMBER" and collectively, with all other Persons who from
time to time become Members pursuant to this Agreement, the "MEMBERS"), pursuant
to and in accordance with the Nevada Limited Liability Company Act, Nev. Rev.
Stat. Sections 86.011 to 86.590, as amended from time to time (the "ACT"), and
the terms of this Agreement.
WHEREAS, the Company was formed September 5, 1997, pursuant to
the Act, and the Company's members are LVSI and Interface Holding; and
WHEREAS, the parties desire to participate in a joint venture
to construct, hold, own, manage and operate the Venetian Casino Resort, a
large-scale Venetian-themed hotel, casino, retail, meeting and entertainment
complex located in Las Vegas, Nevada (the "Venetian Casino Resort") and to
engage in any lawful act or activity for which limited liability companies may
be formed under the Act and in any and all activities necessary or incidental to
the foregoing.
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NOW, THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Members hereby
agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
1.1 "ADJUSTED CAPITAL ACCOUNT" shall mean, with respect to
any Member, such Member's Capital Account balance, increased by such Member's
share of Company Minimum Gain and Member Minimum Gain.
1.1A "ADJUSTED CAPITAL ACCOUNT DEFICIT" means, with respect to
any Member, the deficit balance, if any, in such Member's Capital Account as of
the end of the relevant fiscal year, after giving effect to the following
adjustments: (a) credit to such Capital Account any amounts that such Member is
obligated to restore or is deemed to be obligated to restore pursuant to the
Treasury Regulations under Section 704 of the Code or Section 3.2 hereof; (b)
debit to such Capital Account the items described in Treasury Regulations
Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6). The foregoing definition of
Adjusted Capital Account Deficit is intended to comply with the provisions of
Treasury Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted
consistently therewith.
1.2 "AFFILIATE" shall mean, with respect to any Person, any
other Person, that, directly or indirectly, controls or is controlled by, or is
under direct or indirect common control with, such Person. "CONTROL," as used
with respect to any Person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities or by contract
or otherwise; and the terms "CONTROLLING" and "CONTROLLED" shall have
correlative meanings.
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1.3 "ARTICLES" shall mean the articles of organization of the
Company attached hereto as Exhibit A.
1.4 [Intentionally Omitted].
1.5 "CAPITAL ACCOUNT" shall mean, with respect to each Member,
the capital account of such Member, maintained as set forth in Section 4.1.
1.6 "CODE" shall mean the Internal Revenue Code of 1986, as
the same may be amended from time to time.
1.7 "COMPANY MINIMUM GAIN" shall mean "partnership minimum
gain," as defined in Section 1.704-2(b)(2) of the Treasury Regulations, and
shall be determined in accordance with Section 1.704-2(d) of the Treasury
Regulations.
1.7A "DEFICIT RESTORATION OBLIGATION LIMIT" shall mean, with
respect to LVSI, $38,500,000, and such term shall mean zero with respect to all
other Members.
1.8 "DEPRECIATION" shall mean, with respect to any fiscal
year, an amount equal to the depreciation, amortization or other cost recovery
deduction allowable with respect to an asset for Federal income tax purposes,
except that if the Gross Asset Value of the asset differs from its adjusted tax
basis, Depreciation shall be determined either (a) in accordance with the
methods used for Federal income tax purposes and shall equal the amount that
bears the same ratio to the Gross Asset Value of such asset as the depreciation,
amortization or other cost recovery deduction computed for Federal income tax
purposes with respect to such asset bears to the adjusted Federal income tax
basis of such asset; PROVIDED, HOWEVER, that if any such asset that is
depreciable or amortizable has an adjusted federal income tax basis of zero, the
rate of Depreciation shall be as determined by the "tax matters partner," or (b)
as set forth in Treasury
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Regulations Section 1.704-3(d)(2) if the Company, pursuant to Section 4.6(b),
uses the remedial method of allocations under Section 704(c) of the Code.
1.9 "EFFECTIVE TAX RATE" shall mean, for any year, the
percentage determined by the tax matters partner to be a reasonable estimate of
the highest marginal combined Federal, state and local income tax rate (giving
effect to the deduction of state and local income taxes, as applicable, for
Federal and state income tax purposes), applicable to individuals residing in
the state of Nevada with respect to the taxable income allocated to the Members
by the Company for Federal income tax purposes.
1.10 "FINAL DETERMINATION" shall mean (i) a decision,
judgment, decree or other order by a court of original jurisdiction which has
become final (i.e., the time for filing an appeal shall have expired), (ii) a
closing agreement made under Section 7121 of the Code or any other settlement
agreement entered into in connection with an administrative or judicial
proceeding, (iii) the expiration of the time for instituting a claim for refund,
or if a claim was filed, the expiration of the time for instituting suit with
respect thereto, or (iv) in any case where judicial review shall be unavailable,
a decision, judgment, decree or other order of an administrative official or
agency which has become final.
1.11 "GAAP" shall mean generally accepted accounting
principles as in effect in the United States from time to time.
1.12 "GROSS ASSET VALUE" shall mean, with respect to any
asset, the asset's adjusted basis for Federal income tax purposes, except that
(i) the Gross Asset Value of any asset contributed to the Company shall be its
gross fair market value at the time such asset is contributed or deemed
contributed for purposes of computing Capital Accounts, (ii) upon a contribution
of money or other property to the Company by a new or existing Member as
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consideration for an interest in the Company, and upon a distribution of money
or other property to a retiring or continuing Member as consideration for an
interest in the Company, the Gross Asset Value of all of the assets of the
Company shall be adjusted to equal their respective gross fair market values,
(iii) the Gross Asset Value of any asset distributed in kind to any Member shall
be the gross fair market value of such asset on the date of such distribution,
and (iv) the Gross Asset Value of any asset determined pursuant to clauses (i)
or (ii) above shall thereafter be adjusted from time to time by the Depreciation
taken into account with respect to such asset for purposes of determining Net
Profit or Net Loss.
1.13 [Intentionally Omitted].
1.14 "MEMBER MINIMUM GAIN" shall mean "partner nonrecourse
debt minimum gain," as defined in Section 1.704-2(i)(2) of the Treasury
Regulations, and shall be determined in accordance with Section 1.704-2(i)(3)
of the Treasury Regulations.
1.15 "MEMBER NONRECOURSE DEBT" shall mean "partner nonrecourse
debt," as defined in Section 1.704-2(b)(4) of the Treasury Regulations.
1.16 "MEMBER NONRECOURSE DEDUCTIONS" shall mean "partner
nonrecourse deductions," as defined in Section 1.704-2(i)(1) of the Treasury
Regulations, and shall be determined in accordance with Section 1.704-2(i)(2)
of the Treasury Regulations.
1.17 "NET PROFIT" or "NET LOSS" shall mean, with respect to
any fiscal year, the taxable income or loss of the Company as determined for
federal income tax purposes, with the following adjustments:
(i) Such taxable income or loss shall be
increased by the amount, if any, of tax-exempt income received or accrued by the
Company;
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(ii) Such taxable income or loss shall be
reduced by the amount, if any, of all expenditures of the Company described in
Section 705(a)(2)(B) of the Code, including expenditures treated as described
therein under Section 1.704(b)(2)(iv)(i) of the Treasury Regulations;
(iii) If the Gross Asset Value of any asset
is adjusted pursuant to clause (ii) or (iii) of the definition of Gross Asset
Value, the amount of such adjustment shall be taken into account, immediately
prior to the event giving rise to such adjustment, as gain or loss from the
disposition of such asset for purposes of computing Net Profit or Net Loss;
(iv) Gain or loss resulting from any
disposition of any asset with respect to which gain or loss is recognized for
Federal income tax purposes shall be computed by reference to the Gross Asset
Value of the asset disposed of, notwithstanding that such Gross Asset Value
differs from the adjusted tax basis of such asset; and
(v) In lieu of the depreciation,
amortization, or other cost recovery deductions taken into account in computing
such taxable income or loss, there shall be taken into account Depreciation for
such fiscal year; and
(vi) Notwithstanding any other provision of
this subsection, any items of income, gain, loss or deduction that are specially
allocated pursuant to Section 4.3A shall not be taken into account in computing
Net Profit or Net Loss."
1.18 "NONRECOURSE DEDUCTIONS" shall have the meaning set forth
in Section 1.704-2(b)(1) of the Treasury Regulations. The amount of
Nonrecourse Deductions for any year equals the excess, if any, of the net
increase in the amount of Company Minimum Gain during such year over the
aggregate amount of any distributions during such year of proceeds of a
7
Nonrecourse Liability that are allocable to an increase in Company Minimum Gain,
determined in accordance with Section 1.704-2(c) of the Treasury Regulations.
1.19 "NONRECOURSE LIABILITY" shall have the meaning set forth
in Section 1.704-2(b)(3) of the Treasury Regulations.
1.20 "PERSON" shall mean any individual, partnership, company,
corporation, limited liability company, trust, estate, unincorporated
association, syndicate, joint venture or organization, or any government or any
department, agency or political subdivision thereof, or any other entity.
1.21 "PREFERRED RETURN," with respect to the Non-Managing
Member, shall mean a return at the rate of 12%, compounded semi-annually on June
30 and December 31, beginning as of June 30, 1997, to the extent not distributed
pursuant to Section 5.1(a), on the Unrecovered Preferred Capital.
1.22 [Intentionally Omitted].
1.23 "TRANSFER" shall mean any transfer, sale, assignment,
pledge, lease, hypothecation, mortgage, gift or creation of security interest,
lien or trust (voting or otherwise) or other encumbrance or other disposition of
any interests. "TRANSFEROR" and "TRANSFEREE" have correlative meanings and, in
addition, shall mean any Person who, in the case of a Transferor, issues
securities and, in the case of a Transferee, acquires securities so issued.
1.24 "TREASURY REGULATIONS" shall mean the Income Tax
Regulations promulgated under the Code, as amended from time to time.
1.25 "UNPAID PREFERRED RETURN," with respect to the
Non-Managing Member, shall mean an amount equal to the excess, if any, of the
cumulative accrued Preferred Return
8
over the aggregate of all amounts previously distributed to such Member pursuant
to Section 5.1(a).
1.26 "UNRECOVERED PREFERRED CAPITAL," with respect to the
Non-Managing Member, shall mean an amount equal to the excess, if any, of actual
amount of cash contributed by Interface Holding pursuant to Section 3.1 over the
aggregate of all amounts previously distributed to such Member pursuant to
Section 5.1(b).
1.27 CROSS REFERENCES. Each of the following terms shall have
the meaning assigned thereto in the Section of this Agreement set forth below
opposite such term:
Act...................................................Preamble
Agreement.............................................Preamble
Capital Account............................................4.1
Company...............................................Preamble
Conversion.................................................2.1
Covered Person..........................................8.2(a)
Deficit Member..........................................4.5(e)
Effective Date.............................................2.3
LVSI..................................................Preamble
Managing Member.......................................Preamble
Members...............................................Preamble
Non-Managing Member...................................Preamble
Property...................................................2.8
Regulatory Allocations..................................4.5(f)
Series A Preferred Return..................................2.1
Series B Preferred Return..................................2.1
tax matters partner........................................6.7
Venetian Casino Resort................................Preamble
1.28 USAGE GENERALLY. The definitions in Article I shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. All references herein to Articles, Sections, Exhibits
and Schedules shall be deemed to be references to Articles and Sections of, and
Exhibits and Schedules to, this Agreement unless the context shall otherwise
require. All Exhibits and Schedules attached hereto shall be deemed incorporated
9
herein as if set forth in full herein and, unless otherwise defined therein, all
terms used in any Exhibit or Schedule shall have the meaning ascribed to such
term in this Agreement. The words "include", "includes" and "including" shall be
deemed to be followed by the phrase "without limitation". All accounting terms
not defined in this Agreement shall have the meanings determined by GAAP. The
words "hereof", "herein" and "hereunder" and words of similar import when used
in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. Unless otherwise expressly provided
herein, any agreement, instrument or statute defined or referred to herein or in
any agreement or instrument that is referred to herein means such agreement,
instrument or statute as from time to time amended, modified or supplemented,
including (in the case of agreements or instruments) by waiver or consent and
(in the case of statutes) by succession of comparable successor statutes and
references to all attachments thereto and instruments incorporated therein.
ARTICLE II
FORMATION; NAME; TERM
2.1 FORMATION. LVSI and Interface Holding formed the Company
as a limited liability company on September 5, 1997, under and pursuant to the
provisions of the Act. The Members hereby agree that the Company shall be
governed by the terms and conditions of this Agreement. Subject to the terms and
conditions herein, the Managing Member shall own a common equity interest in the
Company and the Non-Managing Member shall own a preferred equity interest in the
Company (the "SERIES A PREFERRED INTEREST"). The Non-Managing Member, at any
time and in its sole discretion, may convert (a "CONVERSION") the Series A
Preferred Interest into a preferred equity interest which will be entitled to
the Preferred Return, beginning on the Effective Date (the "SERIES B PREFERRED
INTEREST").
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2.2 COMPANY NAME. The name of the Company shall be Venetian
Casino Resort, LLC.
2.3 EFFECTIVE DATE. This Agreement shall become effective upon
the execution of this Agreement by the Members (the "EFFECTIVE DATE").
2.4 TERM. The Company shall have perpetual existence unless
sooner dissolved or terminated as provided in the Act or this Agreement.
2.5 REGISTERED AGENT AND OFFICE. The Company's registered
agent and office in Nevada shall be Xxxxxx Xxxxxx & Xxxxxxx, 1700 Bank of
America Plaza, 000 Xxxxx Xxxxxx Xxxxxx, Xxx Xxxxx, XX 00000.
2.6 PRINCIPAL PLACE OF BUSINESS. The principal place of
business of the Company shall be at 0000 Xxx Xxxxx Xxxxxxxxx, Xxxxx, Xxx Xxxxx,
Xxxxxx 00000 or at such other or additional place or places as the Members shall
determine from time to time. The Company may have other offices, either within
or outside of the State of Nevada, at such place or places as the Members may
from time to time designate or the business of the Company may require.
2.7 FILINGS. The Members promptly shall cause the execution
and delivery of such documents and performance of such acts consistent with the
terms of this Agreement as may be necessary to comply with the requirements of
law for the formation, qualification and operation of a limited liability
company under the laws of each jurisdiction in which the Company shall conduct
business.
2.8 PURPOSE. The purpose for which the Company is formed and
the nature of business proposed to be transacted and carried on by it shall be
limited to the following: (i) to
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construct, hold, own, manage, market and operate a hotel, casino, resort,
meeting, convention, retail and entertainment complex known as the Venetian
Casino Resort (the "Property"), located at 0000 Xxx Xxxxx Xxxxxxxxx, Xxxxx Xxx
Xxxxx, Xxxxxx, (ii) to engage in the casino gaming, hotel, and resort business
at the Property and any activity and business incidental, directly related or
similar thereto (iii) to engage in any business or activity that is a reasonable
extension, development or expansion thereof or ancillary thereto, including any
hotel, entertainment, convention, trade show, meeting, recreation, retail sale
or other activity or business designed to promote, market, support, develop,
construct or enhance the casino gaming, hotel and resort business operated by
the Company and (iv) to engage in any other lawful activity.
2.9 [Intentionally Omitted].
2.10 [Intentionally Omitted].
2.11 AUTHORIZED PERSON. Xxxxx Xxxxxx-Xxxxxx hereby is
designated as an authorized person, within the meaning of the Act, to execute,
deliver and file the Articles.
2.12 CERTIFICATES. The Non-Managing Member's preferred equity
interest in the Company shall be evidenced by a certificate of interest,
substantially in the form of Exhibit B attached hereto, issued by the Company on
the Effective Date.
ARTICLE III
CONTRIBUTIONS
3.1 CAPITAL CONTRIBUTIONS. On or prior to the date of this
Agreement, all capital contributions by the Members shall have been made to the
Company. From time to time, the Members may agree to make additional capital
contributions in cash, real property or other property and, at such times, shall
have their Capital Accounts increased pursuant to Section 4.1.
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3.2 DEFICIT RESTORATION OBLIGATION. If LVSI has a deficit
balance in its Capital Account at the time of liquidation of its interest in the
Company, after giving effect to all contributions, distributions and allocations
for all taxable years through the date of such liquidation, LVSI shall be
obligated to contribute to the capital of the Company an amount of cash equal to
the lesser of (a) the amount necessary to restore such deficit balance to zero,
and (b) the Deficit Restoration Obligation Limit. Such amount shall be paid to
the Company by the later of the end of the taxable year in question or 90 days
after the date of the Company's liquidation and shall be available for payment
to the creditors of the Company or for distribution to Members having positive
capital account balances.
ARTICLE IV
CAPITAL ACCOUNTS; ALLOCATIONS
4.1 CAPITAL ACCOUNTS. A separate capital account (a "CAPITAL
ACCOUNT") shall be maintained for each Member. Each Member's Capital Account
shall be credited with (a) the amount of such Member's capital contribution made
in cash, (b) the fair market value (net of liabilities assumed or taken subject
to) of all property contributed by such Member, (c) such Member's allocated
share of Net Profit of the Company and (d) any items of income and gain
allocated to such Member pursuant to Section 4.5. Each Member's Capital Account
shall be reduced by (a) the amount of any cash distributions to such Member, (b)
the fair market value (net of liabilities assumed or taken subject to) of all
property distributed in kind to such Member, (c) such Member's allocated share
of Net Loss of the Company and (d) any items of deduction and loss allocated to
such Member pursuant to Section 4.5.
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4.2 ALLOCATION OF NET PROFIT. Except as otherwise provided in
the further provisions of this Article IV, Net Profit of the Company for any
fiscal year shall be allocated as follows and in the following order of
priority:
(a) First, to LVSI to the extent of its Adjusted Capital
Account Deficit, if any; PROVIDED, HOWEVER, that any Net Profit allocated
pursuant to this Section 4.2(a) for any fiscal year shall not exceed the Net
Profit of the Company for such fiscal year computed as if Section 4.3A were not
in this Agreement;
(b) Next, to Interface Holding until it has received aggregate
allocations of Net Profit pursuant to this Section 4.2(b) for the current and
all prior years equal to the cumulative Net Loss allocated to such Member
pursuant to Section 4.3(b) for all prior periods;
(c) Next, if a Conversion has occurred, to Interface Holding
until it has received aggregate allocations of Net Profit pursuant to this
Section 4.2(c) for the current and all prior years equal to the cumulative
accrued Preferred Return;
(d) Next, to LVSI until it has received aggregate allocations
of Net Profit pursuant to this Section 4.2(d) for the current and all prior
years equal to the cumulative Net Loss allocated to such Member pursuant to
Section 4.3(a) for all prior periods;
(e) Thereafter, to LVSI.
4.3 ALLOCATION OF NET LOSS. Except as otherwise provided in
the further provisions of this Article IV, Net Loss of the Company for any
fiscal year shall be allocated as follows and in the following order of
priority:
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(a) First, to LVSI until its Capital Account balance has been
reduced to zero;
(b) Second, to Interface Holding until its Capital Account
balance has been reduced to zero; and
(c) Thereafter, to LVSI.
4.3A SPECIAL ALLOCATION OF CERTAIN ITEMS OF EXPENSE.
Notwithstanding any other provision of this Article IV, Depreciation and, to the
extent necessary, operating expenses shall be allocated to LVSI to the extent
necessary so that the deficit balance of its Capital Account is equal to its
Deficit Restoration Obligation Limit.
4.4 INTERIM ALLOCATIONS DUE TO PERCENTAGE INTEREST ADJUSTMENT.
Except as may be otherwise agreed to by the Members, in the event of a transfer
of an interest in the Company, the Company's Net Profit or Net Loss shall be
allocated among the Members for the periods before and after the change or
transfer based on an interim closing of the books. This Section 4.4 shall apply
both for purposes of computing a Member's Capital Account and for Federal income
tax purposes, unless the Members otherwise agree.
4.5 REGULATORY ALLOCATIONS.
(a) Notwithstanding any other provision of this Article IV, if
there is a net decrease in Company Minimum Gain during any year, each Member
shall be specially allocated items of income and gain for such year (and, if
necessary, subsequent years) in an amount equal to the portion of such
Member's share of the net decrease in Company Minimum Gain, determined in
accordance with Section 1.704-2(g) of the Treasury Regulations. Allocations
pursuant to the previous sentence shall be made in proportion to the
respective amounts required to be allocated to each Member pursuant thereto.
The items to be so allocated shall be
15
determined in accordance with Section 1.704-2(f)(6) of the Treasury Regulations.
This Section 4.5(a) is intended to comply with the minimum gain chargeback
requirement in Section 1.704-2(f) of the Treasury Regulations and shall be
interpreted consistently therewith.
(b) Notwithstanding any other provisions of this Article IV
except Section 4.5(a), if there is a net decrease in Member Minimum Gain
attributable to a Member Nonrecourse Debt during any year, each Member who has a
share of the Member Minimum Gain attributable to such Member Nonrecourse Debt,
determined in accordance with Section 1.704-2(i)(5) of the Treasury Regulations,
shall be specially allocated items of income and gain for such year (and, if
necessary, subsequent years) in an amount equal to the portion of such Member's
share of the net decrease in Member Minimum Gain attributable to such Member
Nonrecourse Debt, determined in accordance with Section 1.704-2(i)(4) of the
Treasury Regulations. Allocations pursuant to the previous sentence shall be
made in proportion to the respective amounts required to be allocated to each
Member pursuant thereto. The items to be so allocated shall be determined in
accordance with Section 1.704-2(i)(4) of the Treasury Regulations. This Section
4.5(b) is intended to comply with the minimum gain chargeback requirement in
Section 1.704-2(i) of the Treasury Regulations and shall be interpreted
consistently therewith.
(c) Nonrecourse Deductions for any year shall be allocated to
LVSI.
(d) Any Member Nonrecourse Deductions for any year shall be
specially allocated to the Member who bears the economic risk of loss with
respect to the Member Nonrecourse Debt to which such Member Nonrecourse
Deductions are attributable in accordance with Section 1.704-2(i)(1) of the
Treasury Regulations.
(e) Notwithstanding any other provision of this Article IV, no
Member shall be allocated in any fiscal year of the Company any Net Loss to the
extent such allocation
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would increase a deficit balance in such Member's Adjusted Capital Account to an
amount greater than its Adjusted Capital Account Deficit, taking into account
all other allocations to be made for such year pursuant to this Article IV and
the reasonably expected adjustments, allocations and distributions described in
Section 1.704-1(b)(2)(ii)(d) of the Treasury Regulations. Any such Net Loss that
would be allocated to a Member (the "DEFICIT MEMBER") shall instead be allocated
to the other Members. Moreover, if a Deficit Member unexpectedly receives an
adjustment, allocation or distribution described in Section 1.704-1(b)(2)(ii)(d)
of the Treasury Regulations which creates or increases an Adjusted Capital
Account Deficit (computed after all other allocations to be made for such year
pursuant to this Article IV have been tentatively made as if this Section 4.5(e)
were not in this Agreement), such Deficit Member shall be allocated items of
income and gain in an amount and manner sufficient to eliminate, to the extent
required by the Treasury Regulations, the Adjusted Capital Account Deficit of
such Member as quickly as possible. This Section 4.5(e) is intended to comply
with the qualified income offset requirement of Section 1.704-1(b)(2)(ii)(d) of
the Treasury Regulations and shall be interpreted consistently therewith.
(f) The allocations set forth in Sections 4.5(a) through
4.5(e) (the "REGULATORY ALLOCATIONS") shall be taken into account in allocating
items of income, gain, loss and deduction among the Members so that, to the
extent possible, the net amount of such allocations of other items and the
Regulatory Allocations to each Member shall be equal to the net amount that
would have been allocated to each such Member if the Regulatory Allocations had
not occurred.
(g) For purposes of Section 1.752-3(a)(3) the Members' shares
of "excess nonrecourse liabilities" shall equal their respective shares of
Nonrecourse Deductions.
17
4.6 CERTAIN TAX MATTERS.
(a) Except as otherwise provided herein, all items of Company
income, gain, deduction and loss shall be allocated among the Members in the
same proportion as they share in the Net Profit and Net Loss to which such items
relate. Any credits against income tax shall be allocated to LVSI.
(b) Income, gain, loss or deductions of the Company shall,
solely for income tax purposes, be allocated among the Members in accordance
with Section 704(c) of the Code and the Treasury Regulations promulgated
thereunder, so as to take account of any difference between the adjusted basis
of the assets of the Company and their respective Gross Asset Values upon
contribution. In furtherance of the foregoing, the Managing Member shall
determine which of the methods prescribed in such Regulations the Company shall
employ.
ARTICLE V
DISTRIBUTIONS
5.1 GENERAL. No Member shall be entitled to receive any
distribution from the Company except as provided in this Agreement. Except as
otherwise provided in Sections 5.2 and 10.4, distributions of Company cash or
other property shall be made semi-annually (to the extent permitted by the debt
agreements and instruments of the Company) at such times and in such amounts as
may be determined by the Managing Member (in its sole discretion) and in the
following order of priority:
(a) First, if a Conversion has occurred, to Interface Holding,
in an amount equal to its Unpaid Preferred Return at such time;
18
(b) Next, to Interface Holding, in an amount equal to the
lesser of its Unrecovered Preferred Capital or its positive Capital Account
balance at such time; and
(c) Thereafter, to LVSI if the Unrecovered Preferred Capital
of Interface Holding is equal to zero.
5.2 TAX DISTRIBUTIONS.
(a) Notwithstanding the provisions of Section 5.1 , if it is
anticipated that the allocations of Net Profit for any year pursuant to Section
4.2 will result in the Members recognizing taxable income with respect to the
Company for such year, the Members shall make a good faith estimate of the
amount of such taxable income to be recognized by each of the Members, and
distributions of Company cash shall be made to each of the Members in an amount
equal to the Effective Tax Rate multiplied by such Member's allocations of Net
Profit for such year pursuant to Section 4.2. Distributions required to be made
pursuant to this Section 5.2(a) shall be made in quarterly installments in a
timely manner so that the Members may pay any estimated or required income or
similar taxes, and shall be treated, at the election of the Managing Member,
either as (i) amounts to be distributed pursuant to Section 5.1 or (ii) advances
against such amounts.
(b) The computation of the amounts required to be distributed
pursuant to Section 5.2(a) for any year shall be adjusted (i) prior to each
distribution for such year, (ii) upon the filing of the Company's Federal income
tax return for such year, (iii) upon any Final Determination of the Company's
taxable income for such year and (iv) at any other time when in the good faith
judgment of the Managing Member it appears that a prior estimate has been
incorrect, in each case so as to take into account actual determinations and/or
revised estimates of the Members' shares of taxable income for such year for
Federal income tax
19
purposes. Following any such adjustment, the amounts to be distributed pursuant
to Section 5.2(a) shall be adjusted appropriately, or additional distributions
shall be made, so as to give effect to such actual determinations and/or revised
estimates.
5.3 RETURN OF CAPITAL.
(a) [Intentionally Omitted].
(b) Notwithstanding Section 5.1, beginning on June 30, 2011
and on a semi-annual basis thereafter, distributions under Sections 5.1(a) and
(b) must be made to Interface Holding until its Unrecovered Preferred Capital is
equal to zero.
(c) Notwithstanding Section 5.1, the Company shall, to the
extent desired and as directed from time to time by the Managing Member, make
distributions of cash or other property to the Managing Member; PROVIDED that
the aggregate amount of such distributions, reduced by capital contributions
made by LVSI to the Company after the date hereof, shall not exceed $100,000,000
million or such greater number as the Members shall agree.
(d) Upon the Unrecovered Preferred Capital balance equaling
zero, the Non-Managing Member shall no longer be considered a Member for
purposes of this Agreement and shall not be entitled to receive any allocations
or distributions from the Company pursuant to terms of this Agreement.
5.4 LIMITS ON DISTRIBUTIONS. Notwithstanding any provision to
the contrary contained in this Agreement, the Company shall not make a
distribution to any Member with respect to such Member's interest if such
distribution would violate the Act or other applicable law.
20
ARTICLE VI
BOOKS; RECORDS; ACCOUNTING; FINANCIAL AND TAX MATTERS
6.1 ACCOUNTING METHOD. The Company shall keep its accounting
records and shall report its profits or losses on the accrual method of
accounting in accordance with GAAP.
6.2 ACCOUNTING RECORDS. The Company shall keep complete and
accurate business and accounting records reflecting all transactions of the
Company. The Company's records shall be maintained at the principal place of
business of the Company and shall be subject to inspection or examination by the
Members at all reasonable times.
6.3 FISCAL YEAR. The fiscal year of the Company initially
shall end on December 31 of each year.
6.4 REPORTS.
(a) Upon the request of any Member, as soon as practicable but
in any event within 120 days after the close of each fiscal year of the Company,
the Company shall prepare and deliver, or cause to be prepared and delivered, to
each Member the following financial statements: (i) a balance sheet of the
Company as at the end of such fiscal year; (ii) a statement of net profit and
net loss for such fiscal year; and (iii) a statement of cash flows of the
Company for such fiscal year.
(b) The Company shall prepare, or cause to be prepared, and
shall file all tax returns, be they information returns or otherwise, which are
required to be filed with the Internal Revenue Service, state and local tax
authorities and foreign tax jurisdictions, if any. A copy of such returns shall
be furnished to each of the Members.
21
(c) The Company shall furnish the Members with all Company
information required to be reported in the tax returns of the Members for tax
jurisdictions in which the Company is considered to be doing business, including
a report indicating each Member's share for income tax purposes of the Company's
income, gain, credits, losses and deductions within 180 days after the end of
the Company's fiscal year or as soon thereafter as possible, if the Company is
unable to provide such information within such 180 day period.
6.5 BANK AND INVESTMENT ACCOUNTS. All funds of the Company
shall be deposited in its name in such checking, savings or other accounts, or
held in its name in the form of such other investments as shall be designated by
the Managing Member. All withdrawals of such deposits or liquidations of such
investments by the Company shall be made exclusively upon the signature or
signatures of such officer or officers of the Company as the Managing Member may
designate.
6.6 RECORDS. The Company shall keep at its registered office
such records as are required by the Act and by the Nevada Gaming Control Act, as
amended from time to time.
6.7 TAX MATTERS PARTNER. The "TAX MATTERS PARTNER" (as such
term is defined in Section 6231(a)(7) of the Code) of the Company shall be the
Managing Member.
6.8 CLASSIFICATION AS A PARTNERSHIP. The parties hereto intend
that the Company be classified as a partnership for federal tax purposes
effective as of the date of this Agreement. The tax matters partner shall not
file an election for the Company to be taxable as an association, and shall, for
and on behalf of the Company, take all steps as may be required to maintain the
Company's classification as a partnership for federal tax purposes. By executing
this Agreement, each of the parties hereto consents to the authority of the tax
matters partner to
22
make any such election and shall cooperate in the making of such election
(including providing consents and other authorizations that may be required).
ARTICLE VII
MANAGEMENT BY THE MANAGING MEMBER
7.1 MANAGEMENT BY THE MEMBERS. The Company shall be managed
solely by the Managing Member. The Non-Managing Member shall have no voting or
consent rights except to the extent required by law or provided for herein.
7.2 ADMISSION OF NEW MEMBERS. No new members shall be admitted
without the consent of all the existing Members except in accordance with the
transfer provisions contained in Article IX. Notwithstanding the foregoing,
without the consent of the Non-Managing Member, the Managing Member may elect to
admit as new members officers of the Company or LVSI upon the receipt by the
Company of fair consideration as determined by the Managing Member in its sole
discretion; provided that the interests issued to such new members shall only be
(i) non-voting common equity interests of the Company (representing up to 7.5%
of the common equity interests in the Company) and (ii) non-voting profit
interests (representing up to a 7.5% profit interest in the Company for which
the Company may pay distributions either (a) at any time or (b) only upon the
liquidation or dissolution of the Company). Prior to the admission of an
additional member of the Company or the issuance of a profit interest, the
Members shall amend this Agreement to make such changes as the Managing Member
shall determine to reflect the admission of such additional member or the
issuance of such profit interest.
23
7.3 APPOINTMENT OF OFFICERS. The Managing Member may, from
time to time, appoint officers of the Company, hire Company executives, and set
the compensation of such officers and executives.
7.4 POWER OF MEMBERS. The Members shall have the power to
exercise any and all rights or powers granted to Members pursuant to the express
terms of this Agreement. Except as otherwise specifically provided by this
Agreement or required by the Act, and except for powers of the Managing Member
pursuant to Section 7.1, no Member shall have the power to act for or on behalf
of, or to bind, the Company.
ARTICLE VIII
LIABILITY; EXCULPATION; INDEMNIFICATION
8.1 LIABILITY OF MEMBERS; REIMBURSEMENT OF MANAGING MEMBER.
The Members shall not have any liability for the obligations or liabilities of
the Company except to the extent provided in the Act and other applicable law. A
Member shall not be personally liable for any indebtedness, liability or
obligation of the Company, except that such Member shall remain personally
liable for the payment of any capital contributions required by Article III, and
as otherwise set forth in this Agreement, the Act and any other applicable law.
The Managing Member shall be entitled to reimbursement from the Company for all
reasonable out-of-pocket expenses that are incurred by the Managing Member in
its performance of the services rendered as Managing Member of the Company or
that otherwise directly relate to the purpose of the Company as provided in
Section 2.8 hereof.
8.2 DUTIES AND LIABILITIES OF COVERED PERSONS.
(a) To the extent that, at law or in equity, any Member, any
Affiliate of a Member or any shareholders, partners, members, employees,
representatives or agents of a
24
Member or their respective Affiliates, any officer or any employee or agent of
the Company (each a "COVERED PERSON") has duties (including fiduciary duties)
and liabilities related thereto to the Company or to any other Covered Person, a
Covered Person acting under this Agreement shall not be liable to the Company or
to any other Covered Person for its good faith reliance on the provisions of
this Agreement.
(b) Unless otherwise expressly provided herein, (i) whenever a
conflict of interest exists or arises between Covered Persons, or (ii) whenever
this Agreement or any other agreement contemplated herein provides that a
Covered Person shall act in a manner that is, or provides terms that are, fair
and reasonable to the Company or any Member, the Covered Person shall resolve
such conflict of interest, taking such action or providing such terms,
considering in each case the relative interest of each party (including its own
interest) to such conflict, agreement, transaction or situation and the benefits
and burdens relating to such interests, any customary or accepted industry
practices, and any applicable generally accepted accounting practices or
principles. In the absence of bad faith by the Covered Person, the resolution,
action or term so made, taken or provided by the Covered Person shall not
constitute a breach of this Agreement or any other agreement contemplated herein
or of any duty or obligation of the Covered Person at law or in equity or
otherwise.
(c) Whenever in this Agreement a Covered Person is permitted
or required to make a decision (i) in its "discretion" or under a grant of
similar authority or latitude, the Covered Person shall be entitled to consider
only such interests and factors as it desires, including its own interests, and
shall have no duty or obligation to give any consideration to any interest of or
factors affecting the Company or any other Person, or (ii) in its "good faith"
or under another express standard, the Covered Person shall act under such
express standard and
25
shall not be subject to any other or different standard imposed by this
Agreement or other applicable law.
8.3 INDEMNIFICATION.
(a) The Company shall indemnify any Covered Person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding brought by or against the Company or
otherwise, whether civil, criminal, administrative or investigative, including,
without limitation, an action by or in the right of the Company to procure a
judgment in its favor, by reason of the fact that such Covered Person is or was
a Member, officer, employee or agent of the Company, or that such Covered Person
is or was serving at the request of the Company as a partner, member, director,
officer, trustee, employee or agent of another Person, against all expenses,
including attorneys' fees and disbursements, judgments, fines and amounts paid
in settlement actually and reasonably incurred by such Covered Person in
connection with such action, suit or proceeding. Notwithstanding the foregoing,
no indemnification shall be provided to or on behalf of any Covered Person if a
judgment or other final adjudication adverse to such Covered Person establishes
that his or her acts constituted intentional misconduct or gross negligence.
(b) The indemnification provided by this Section 8.3 shall not
be deemed exclusive of any other rights to indemnification to which those
seeking indemnification may be entitled under any agreement, determination of
Members or otherwise. The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Section 8.3
shall continue as to a Covered Person who has ceased to be a Member, officer,
employee or agent (or other person indemnified hereunder) and shall inure to the
benefit of the executors, administrators, legatees and distributees of such
person.
26
ARTICLE IX
TRANSFERS
9.1 GENERAL RESTRICTIONS.
(a) No Member may Transfer all or any portion of such Member's
interest (including any beneficial interest therein), unless the following
conditions are met: (i) the other Member approves the Transfer, which approval
may be withheld in such other Member's sole discretion; (ii) an instrument of
Transfer in form and substance satisfactory to such other Member, executed by
the Transferor and the Transferee of the interest, together with such additional
instruments and documents as shall be requested by such other Member, shall be
delivered to the Company; and (iii) the Transferee shall, if so requested,
assume the obligations, if any, of the Transferor to the Company. Any Person
that acquires an interest pursuant to this Article IX shall assume all
obligations of the transferring Member.
(b) Notwithstanding Section 9.1(a)(1), without the consent of
the Managing Member, the Non-Managing Member may transfer all or any portion of
such Member's interest (including any beneficial interest therein), if the
Company has received an opinion of counsel reasonably satisfactory to the
Managing Member that such Transfer would, in the opinion of such counsel, (i)
not result in the violation of, or loss of exemption under, any applicable
federal or state securities law; (ii) not result in the breach of any agreement
to which the Company is a party or is bound; (iii) not result in the Company no
longer being treated as a partnership for federal income tax purposes, or in a
termination of the Company for federal income tax purposes; (iv) not cause the
assets of the Company to be treated as "plan assets" under the Employee
Retirement Income Security Act of 1974, as amended (and any successor statute)
or the Code; and (v) not caused the Company to be treated as a publicly traded
27
partnership under the Code. In its discretion, the Managing Member may waive the
requirement for delivery of all or any part of the opinion described above.
9.2 VIOLATIVE TRANSFERS. No Member may make a Transfer of an
interest in the Company in violation of Section 9.1, and any such Transfer shall
be null, void and without effect.
9.3 SUBSTITUTED MEMBER. As a condition to the admission of any
Person as a substituted Member, the Person to be admitted shall execute and
acknowledge such instruments, in form and substance satisfactory to the
non-transferring Member as such Member may deem necessary or desirable to
effectuate such admission, and shall confirm that the individual's legal
representative, committee or other entity to be admitted as a Member has agreed
to be bound by all of the covenants, terms and conditions of this Agreement, as
the same shall have been amended.
9.4 APPROVAL BY THE NEVADA GAMING COMMISSION. Notwithstanding
anything to the contrary expressed or implied in this Agreement, the sale,
assignment, transfer, pledge or other disposition of any interest in the Company
is ineffective unless approved in advance by the Nevada Gaming Commission. If at
any time the Nevada Gaming Commission finds that a Member which owns any such
interest is unsuitable to hold that interest, the Nevada Gaming Commission shall
immediately notify the Company of that fact. The Company shall, within 10 days
from the date that it receives the notice from the Nevada Gaming Commission,
return to the unsuitable Member the amount of his capital account as reflected
on the books of the Company. Beginning on the date when the Nevada Gaming
Commission serves notice of a determination of unsuitability, pursuant to the
preceding sentence, upon the Company, it is unlawful for the unsuitable Member:
(a) to receive any share of the distribution of profits or cash or any other
28
property of, or payments upon dissolution of, the Company, other than a return
of capital as required above; (b) to exercise directly or through a trustee or
nominee, any voting right conferred by such interest; (c) to participate in the
management of the business and affairs of the Company; or (d) to receive any
remuneration in any form from the Company, for services rendered or otherwise.
Any Member that is found unsuitable by the Nevada Gaming
Commission shall return all evidence of any ownership in the Company to the
Company, at which time the Company shall, within 10 days after the Company
receives notice from the Nevada Gaming Commission, return to the Member in cash,
the amount of his capital account as reflected on the books of the Company, and
the unsuitable Member shall no longer have any direct or indirect interest in
the Company.
ARTICLE X
BANKRUPTCY; TERMINATION; DISSOLUTION; LIQUIDATION AND WINDING-UP
10.1 BANKRUPTCY. The Managing Member is authorized to file, on
behalf of the company, a petition for relief under title 11 of the United States
Code.
10.2 TERMINATION OF THE COMPANY. In the event of the
affirmative agreement for a dissolution of all of the Members, the Company shall
be terminated on the 90th day after the occurrence of such event.
10.3 LIQUIDATION AND WINDING-UP. If the Company is dissolved
pursuant to Section 10.1, the Company shall be liquidated and wound up in
accordance with the Act and the following provisions:
(a) The assets, properties and business of the Company shall
be liquidated by the Members as promptly as possible, but in an orderly and
businesslike manner so
29
as not to involve undue sacrifice. Notwithstanding the foregoing, if it is
determined by the Members not to sell all or any portion of the properties and
assets of the Company, such properties and assets shall be distributed in kind
in the order of priority set forth in subsection (c); PROVIDED, HOWEVER, that
the fair market value of such properties and assets shall be used in determining
the extent and amount of a distribution in kind of such properties and assets in
lieu of actual cash proceeds of any sale or other disposition thereof.
(b) Net Profit or Net Loss of the Company for the year of
liquidation shall be credited or charged to the Capital Accounts of the Members
in accordance with the allocation provisions set forth in Sections 4.2 and 4.3,
respectively.
(c) The proceeds of sale of all or substantially all of the
properties and assets of the Company and all other properties and assets of the
Company not sold, as provided in subsection (b) above, and valued at the fair
market value thereof as provided in such subsection (b), shall be applied and
distributed as follows, and in the following order or priority:
(i) First, to the payment of all debts and
liabilities of the Company and the expenses of liquidation not otherwise
adequately provided for;
(ii) Second, to the setting up of any
reserves that are reasonably necessary for any contingent unforeseen liabilities
or obligations of the Company or of the Members arising out of, or in connection
with, the Company;
(iii) Third, to Interface Holding in an
amount equal to its Unrecovered Preferred Capital at such time;
(iv) Fourth, to Interface Holding in an
amount equal to its Unpaid Preferred Return at such time; and
30
(v) Fifth, the remaining proceeds to LVSI.
(d) A Certificate of Cancellation shall be filed with the
Secretary of State of the State of Nevada by the Members.
10.4 SURVIVAL OF RIGHTS, DUTIES AND OBLIGATIONS. Termination,
dissolution, liquidation or winding up of the Company for any reason shall not
release any party from any liability which at the time of such termination,
dissolution, liquidation or winding up already had accrued to any other party or
which thereafter may accrue in respect to any act or omission prior to such
termination, dissolution, liquidation or winding up.
10.5 CLAIMS OF THE MEMBERS. Members and former Members shall
look solely to the Company's assets for the return of their contributions to the
Company, and if the assets of the Company remaining after payment of or due
provision for all debts, liabilities and obligations of the Company are
insufficient to return such contributions, the Members and former Members shall
have no recourse against the Company or any other Member.
ARTICLE XI
GENERAL PROVISIONS
11.1 NOTICES. Wherever provision is made in this Agreement for
the giving of any notice, such notice shall be in writing and shall be deemed to
have been duly given if mailed by first class United States mail, postage
prepaid, addressed to the party entitled to receive the same or delivered
personally to such party, or telegraphed, telexed, sent by facsimile
transmission or sent by overnight courier, in each case to the addresses or
facsimile telephone numbers therefor set forth below:
31
If to LVSI:
Las Vegas Sands, Inc.
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Chairman of the Board
If to Interface Holding:
Interface Group Holding Company, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Chairman of the Board
or to such other address, in any such case, as any party hereto shall have last
designated by notice to the other party. Notice shall be deemed to have been
given on the day that it is so delivered personally, telegraphed, telexed or
sent by facsimile transmission and the appropriate answerback received or, if
sent by overnight courier, shall be deemed to have been given one day after
delivery by the courier company, or if mailed, three days following the date on
which such notice was so mailed.
11.2 ENTIRE AGREEMENT; NON-WAIVER. This Agreement constitutes
the entire agreement of the parties hereto. No delay on the part of any party in
exercising any right hereunder shall operate as a waiver thereof, nor shall any
waiver, express or implied, by any party of any right hereunder or of any
failure to perform or breach hereof by any other party constitute or be deemed a
waiver of any other right hereunder or of any other failure to perform or breach
hereof by the same or any other Member, whether of a similar or dissimilar
nature thereof.
11.3 AMENDMENTS. This Agreement may be amended from time to
time only upon the written approval of the Managing Member and the other
Members.
11.4 FURTHER ASSURANCES. Each of the Members hereby agrees to
execute and deliver all such other and additional instruments and documents and
to do such other acts and
32
things as may be reasonably necessary or appropriate to carry out the intent and
purposes of this Agreement.
11.5 APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada (other than its
rules of conflicts of law to the extent that the application of the laws of
another jurisdiction would be required thereby), and specifically the Act and
the Nevada Gaming Control Act, as amended from time to time. Xxxxx County,
Nevada, shall be the exclusive venue for any action brought by any party in any
way related to this Agreement.
11.6 SEVERABILITY. In the event that any provision of this
Agreement shall be declared to be invalid, illegal or unenforceable, such
provision shall survive to the extent it is not so declared, and the validity,
legality and enforceability of the other provisions hereof shall not in any way
be affected or impaired thereby, unless such action would substantially impair
the benefits to either party of the remaining provisions of this Agreement.
11.7 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
11.8 TABLE OF CONTENTS AND HEADINGS. The table of contents
and headings in this Agreement are solely for convenience of reference and
shall not affect the interpretation or construction of any of the provisions
hereof.
[11.8 EFFECTIVE DATE: The effective date of the Amended and
Restated Limited Liability agreement herein shall be June 4, 2002.]
33
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed, by their respective duly authorized officers or
partners, on the date first above written.
MEMBERS
LAS VEGAS SANDS, INC.
By: /s/ Xxxxx Xxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary
INTERFACE GROUP HOLDING COMPANY, INC.
By: /s/ Xxxxx Xxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary
