EXHIBIT 3.11
OPERATING AGREEMENT
OF
XXXXXX COLORADO GAMING, LLC
a Colorado limited liability company
THE SECURITIES REPRESENTED BY THIS DOCUMENT HAVE NOT BEEN REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, 15 U.S.C.
ss. 15b ET SEQ., AS AMENDED (THE "FEDERAL ACT"), OR REGISTERED WITH OR QUALIFIED
UNDER THE SECURITIES LAWS OF ANY STATE (THE "STATE ACTS"), IN RELIANCE UPON ONE
OR MORE EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE FEDERAL ACT AND THE
STATE ACTS. NO SALE OR OTHER TRANSFER OF THESE SECURITIES OR ANY INTEREST
THEREIN TO, OR RECEIPT OF ANY CONSIDERATION THEREFOR, MAY BE MADE IF THE
PROPOSED SALE OR OTHER TRANSFER OF THESE SECURITIES AFFECTS THE AVAILABILITY TO
THE COMPANY OF SUCH EXEMPTIONS FROM REGISTRATION AND QUALIFICATION, AND ANY SUCH
PROPOSED SALE OR OTHER TRANSFER MUST BE IN COMPLIANCE WITH ALL APPLICABLE
FEDERAL AND STATE SECURITIES LAWS. THEREFORE, MEMBERS MAY NOT BE ABLE TO
LIQUIDATE THEIR INVESTMENTS AND THESE SECURITIES MAY NOT BE READILY ACCEPTED AS
COLLATERAL FOR A LOAN.
OPERATING AGREEMENT
OF
XXXXXX COLORADO GAMING, LLC
This Operating Agreement ("Agreement") of Xxxxxx Colorado Gaming, LLC, a
Colorado limited liability company (the "Company") is made and entered into as
of the 1st day of April, 2001, by and among the Company; Xxx X. Xxxxxx, the sole
manager of the company ("Manager"); and Majestic Investor, LLC, the sole member
of the Company ("Member").
R E C I T A L S
A. The undersigned Member has caused the Company to be organized pursuant
to the provisions of the Act (as defined below); and
B. The parties to this Agreement desire to set forth the terms of the
relationship between them and as to the conduct of the business and the internal
affairs of the Company.
THEREFORE, in consideration of the mutual covenants, agreements and
promises made herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Act. "Act" means Title 7, Chapter 80 of the Colorado Revised Statutes.
Affiliate. "Affiliate" means with respect to a specified Person, any
other Person who or which is (a) a principal of the specified Person, (b)
directly or indirectly controlling, controlled by or under common control with a
the specified Person, or (c) any member, director, officer, manager, relative or
spouse of the specified Person. For purposes of this definition, "control,"
"controlling," "controlled" mean the right to exercise, directly or indirectly,
more than fifty percent of the voting power of the stockholders, members or
owners and, with respect to any individual, partnership, trust or other entity
or association, or the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of the controlled
entity.
Agreement. "Agreement" means this Operating Agreement, as amended from
time to time.
Articles. "Articles" means the Articles of Organization of the Company as
filed with the Secretary of State of Colorado, as amended from time to time.
Capital Contribution. "Capital Contribution" means the total amount of
cash and the agreed fair market value (net of liabilities) of any property
contributed at any time to the capital of the Company by the Member.
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Code. "Code" means the Internal Revenue Code of 1986, as amended from
time to time, or any corresponding United States federal tax statute enacted
after the date of this Agreement. A reference to a specific section of the Code
refers not only to that specific section but also to any corresponding provision
of any United States federal tax statute enacted after the date of this
Agreement, as that specific section or corresponding provision is in effect on
the date of application of the provisions of this Agreement containing such
reference.
Covered Person. "Covered Person" means the Manager, the Member or any
Affiliate of the Manager or the Member.
C.R.S.. "C.R.S." means the Colorado Revised Statutes, as amended from
time to time.
Fiscal Year. "Fiscal Year" means the taxable year of the Company as
determined under the Code, the Treasury Regulations or any other applicable
laws.
Gaming Authority. "Gaming Authority" means those federal, state and local
governmental, regulatory and administrative authorities, agencies, boards and
official responsible for or involved in the regulation of gaming or gaming
activities, including manufacturing and distributing gaming devices and other
gaming equipment, in any jurisdiction and, within the State of Colorado,
specifically, the Colorado Gaming Commission and the Colorado State Gaming
Control Board.
Gaming Laws. "Gaming Laws" means those laws pursuant to which any Gaming
Authority possesses regulatory, licensing or permit authority over gaming,
manufacturing and distributing within any jurisdiction and, within the State of
Colorado, specifically, the Colorado Gaming Control Act, as codified in C.R.S.
Title 12, Chapter 47.1, as amended from time to time, and the regulations of the
Colorado Gaming Commission promulgated thereunder, as amended from time to time.
Gaming Licenses. "Gaming Licenses" means all licenses, permits,
approvals, authorizations, registrations, findings of suitability, franchises
and entitlements issued by any Gaming Authority necessary for or relating to the
conduct of activities under the Gaming Laws.
Interest. "Interest" means the entire ownership interest of the Member in
the Company, including the right of the Member to any and all benefits to which
a member may be entitled as provided under the Act and this Agreement.
Person. "Person" means a natural person, any form of business or social
organization and any other nongovernmental legal entity including, but not
limited to, a corporation, partnership, association, trust, unincorporated
organization, estate or limited liability company.
Records Office. "Records Office" means an office of the Company located
in the State of Colorado, which may but need not be a place of its business, at
which it shall keep all gaming records of the Company.
Secretary of State. "Secretary of State" means the office of the Colorado
Secretary of State.
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Treasury Regulations. "Treasury Regulations" means the federal income tax
regulations promulgated by the U.S. Treasury Department under the Code and
codified at Title 26 of the Code of Federal Regulations, as amended from time to
time.
Unsuitable Person. "Unsuitable Person" means an officer, agent or
employee of the Company or an Affiliate of such Person, (i) who is denied a
Gaming License by any Gaming Authority, disqualified from eligibility for a
Gaming License, determined to be unsuitable to own or control an Interest or
determined to be unsuitable to be connected with a Person engaged in gaming
activities in any jurisdiction by a Gaming Authority, or (ii) whose continued
involvement in the business of the Company as an officer, agent or employee (A)
causes the Company or an Affiliate of the Company to lose or to be threatened
with the loss of any Gaming License, or (B) is deemed likely, in the sole and
absolute discretion of the Member, based on verifiable information or
information received from the Gaming Authorities, to jeopardize or adversely
affect the likelihood that the Gaming Authorities will issue a Gaming License to
the Company or to an Affiliate of the Company or to adversely affect the
Company's or an Affiliate of the Company's use of or entitlement to any Gaming
License.
ARTICLE II
INTRODUCTORY MATTERS
2.1 Formation. Pursuant to the Act, the Company has been formed as a
Colorado limited liability company under the laws of the State of Colorado. To
the extent that the rights or obligations of the Manager or the Member are
different by reason of any provision of this Agreement than they would be in the
absence of such provision, this Agreement shall, to the extent permitted by the
Act, control.
2.2 Additional Members. If the sole Member elects to admit additional
members as provided for below, all references to "Member" is this Agreement will
be to all of the members.
2.3 Name. The name of the Company is "Xxxxxx Colorado Gaming, LLC." The
business and affairs of the Company may be conducted under that name or any
other name that the Manager deems appropriate or advisable.
2.4 Resident Agent and Registered Office. The registered agent for
service of process and the registered office is the person and location
reflected in the Articles as filed in the office of the Colorado Secretary of
State. The Member may, from time to time, change the registered agent or office
through appropriate filings with the Secretary of State. If the registered agent
ceases to act as such for any reason or the registered office is changed, the
Member will promptly designate a replacement registered agent or file a notice
of change of address, as the case may be.
2.5 Records Office. The Company shall continuously maintain a Records
Office.
2.6 Other Offices. The Company may establish and maintain other offices
at any time and at any place or places as the Manager may designate or as the
business of the Company may require.
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2.7 Purpose. The Company is formed for the object and purpose of, and the
nature of the business to be conducted and promoted by the Company is, engaging
in any lawful act or activity for which limited liability companies may be
formed under the Act and engaging in any and all activities necessary or
incidental to the foregoing.
2.8 Powers of the Company. The Company shall have the power and authority
to take any and all actions necessary, appropriate, advisable, convenient or
incidental to or for the furtherance of the purpose set forth above, including,
but not limited to, the power and authority to:
(a) borrow money and issue evidence of indebtedness, and to secure
the same by a mortgage, pledge or other lien on any or all of the assets of the
Company;
(b) conduct its business and operations in any state, territory,
district or possession of the United States or in any foreign country that may
be necessary or convenient to the accomplishment of the purpose of the Company;
(c) acquire, by purchase, lease, contribution of property or
otherwise, and own, hold, maintain, finance, improve, lease, sell, convey,
mortgage, transfer, demolish or dispose of any real or personal property that
may be necessary, convenient or incidental to the accomplishment of the purpose
of the Company;
(d) enter into, perform and carry out contracts of any kind,
including without limitation, contracts with the Manager or Member or any
Affiliate that are necessary to, in connection with, convenient to, or
incidental to the accomplishment of the purpose of the Company;
(e) purchase, take, receive, subscribe for or otherwise acquire,
own, hold, vote, use, employ, sell, mortgage, lend, pledge or otherwise dispose
of, and otherwise use and deal in and with, shares or other interests in or
obligations of domestic or foreign entities;
(f) lend money for any proper purpose, invest and reinvest its
funds and take and hold real and personal property for the payment of funds so
loaned or invested;
(g) xxx and be sued, complain and defend and participate in
administrative or other proceedings, in its name;
(h) appoint employees, agents and officers of the Company, and
define their duties and fix their compensation;
(i) indemnify any Person or entity and obtain any and all types of
insurance;
(j) cease its activities and cancel its insurance;
(k) negotiate, enter into, renegotiate, extend, renew, terminate,
modify, amend, waiver, execute, acknowledge or take any other action with
respect to any lease, contract or security agreement in respect of any assets of
the Company;
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(l) pay, collect, compromise, litigate, arbitrate or otherwise
adjust or settle any and all other claims or demands of or against the Company
or hold such proceeds against the payment of contingent liabilities; and
(m) make, execute, acknowledge and file any and all documents or
instruments necessary, convenient or incidental to the accomplishment of the
purpose of the Company.
ARTICLE III
CAPITAL CONTRIBUTIONS
3.1 Initial Capital. The initial capital of the Company shall be the
Capital Contribution of the Member on or prior to the date hereof in the amount
or value as is set forth opposite the name of the Member on Schedule I attached
hereto. The Capital Contribution was made in exchange for a 100% ownership
interest in the capital and the profits of the Company. The Member is not
required to make any additional Capital Contributions to the Company.
ARTICLE IV
PROFITS AND LOSSES
4.1 Profits and Losses. The Company's profits and losses for any Fiscal
Year shall be allocated to the Member.
4.2 Tax Classification. The parties agree that, so long as the Company
has only one Member, it is intended that the Company be disregarded for federal
and all relevant state income tax purposes and that the activities of the
company be deemed to be activities of the Member for such purposes, as provided
for by Treasury Regulations Sections 301.7701-1, et seq., and comparable
provisions of applicable state tax law. If the Company becomes an entity that
has more than one Member, it is intended that the Company be treated as a
"partnership" for federal and all relevant state income tax purposes, and the
parties agree to make all available elections, and take all available actions,
to cause the Company to be so treated.
ARTICLE V
DISTRIBUTIONS
5.1 Operating Distributions. Subject to Section 5.2, the Company shall
from time to time distribute to the Member such amounts in cash and other assets
as determined by the Manager.
5.2 Limitations on Distribution. Notwithstanding any provision to the
contrary contained in this Agreement, the Company shall not make any
distribution if the distribution would violate the C.R.S. or other applicable
law or would cause a breach or default under any agreement or instrument to
which the Company is a party or by which it or its assets are bound. Instead,
the Company shall make the distribution as soon as practicable, such that the
making of the distribution will not cause the violation, breach or default
referred to above.
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ARTICLE VI
RIGHT AND DUTIES OF THE MEMBER AND THE MANAGER
6.1. Management Rights. All management of the Company and all decisions
concerning the business affairs of the Company is vested in and made by the
Manager. The Member may appoint a new Manager under such terms as the Member
desires; and the Member may remove any Manager in the Member's sole discretion,
unless the Member and the Manager agree otherwise.
6.2 Limitation of Liability. Neither the Member nor the Manager will be
liable under a judgment, decree or order of a court, or in any other manner, for
a debt, obligation or liability of the Company, except to the extent required by
law, in an agreement signed by the Member or Manager (as applicable), or as
stated below. Neither the Member nor the Manager will be required to loan any
funds to the Company, nor will the Member or Manager be required to make any
contribution to the Company, nor will the Member or Manager be subject to any
liability to the Company or any third party, as a result of any deficit of the
Company. However, nothing in this Agreement prevents the Member or Manager from
making secured or unsecured loans to the Company by agreement with the Company.
6.3. Conflicts of Interest.
(a) The Member and Manager are entitled to enter into transactions
that may be considered to be competitive with, or a business opportunity that
may be beneficial to, the Company; it being expressly understood that the Member
and Manager may enter into transactions that are similar to the transactions
into which the Company may enter.
(b) Neither the Member nor the Manager violates a duty or
obligation to the Company merely because the Member's or Manager's conduct
furthers the Member's or Manager's own interest. The Member or Manager may lend
money to and transact other business with the Company. The rights and
obligations of the Member or Manager who lends money to or transacts business
with the Company are the same as those of a person who is not a Member or
Manager, subject to other applicable law. No transaction with the Company will
be voidable solely because a Member or Manager has a direct or indirect interest
in the transaction, if the transaction is fair to the Company.
6.4. Meetings. An annual meeting of the Member and Manager will be held
each year at the place and time determined by the Manager. Special meetings of
the Manager may be called by any Manager upon at least 10 days prior written
notice to the other Managers (if any). Special meetings of the Member may be
called at any time, upon at least 10 days prior written notice to all Members,
by one or more Members holding at least 10% of the Membership Interests. Notice
of any meeting may be waived as provided for under the Act.
6.5 Transfer of Interest. The Interest of the Member is personal
property, and that Interest may be transferred or assigned, in whole or in part,
in the sole discretion of the Member. Notwithstanding anything to the contrary
set forth herein, no Interest in the Company may be issued or transferred in any
manner whatsoever except in compliance with all Gaming Licenses and Gaming Laws.
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6.6 Entity as a Manager or Member. If the Member or Manager is an entity,
the acts of the Member or Manager will be exercised through the natural
person(s) designated by the entity to act on behalf of the entity.
6.7 Additional Members. Additional Members may be admitted to the Company
only with the consent of the Member, or upon the admittance of additional
Members, only with the consent of Members holding a majority of the Interests in
the Company.
ARTICLE VII
MANAGER
7.1 Powers of the Manager. The Manager has the full, exclusive and
complete discretion to manage and control the business and affairs of the
Company, to make all decisions affecting the business and affairs of the Company
and to take all actions as he, she or it deems necessary, appropriate or
convenient to or for the furtherance of the purpose of the Company; including,
without limitation, the power and authority to execute all documents and
instruments, perform all duties and powers, and do all things on behalf of the
Company in all matters necessary, desirable, convenient or incidental to the
purpose of the Company. The Manager is an agent of the Company's business, and
the actions of the Manager taken in that capacity and in accordance with this
Agreement bind the Company. The Manager is the sole Person with the power to
bind the Company, except and to the extent that the power is expressly delegated
to any other Person by the Manager in this Agreement or in writing or by oral or
electronic communication, and the delegation shall not cause the Manager to
cease to be the Manager.
7.2. Manager's Standard of Care. The Manager's duty of care in the
discharge of the Manager's duties to the Company is limited to acting in good
faith, and to refraining from engaging in negligent or reckless conduct,
intentional misconduct or a knowing violation of law. In discharging the
Manager's duties, the Manager will be fully protected in relying in good faith
upon the records required to be maintained by the Company, and upon such
information, opinions, reports or statements by any of its agents, or by any
other person, as to matters the Manager reasonably believes are within the other
person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Company; including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits or losses of the Company or any other facts pertinent to the existence
and amount of assets from which Distributions to the Member might properly be
paid.
7.3 Election of Officers. Subject to the applicable provisions of the
Gaming Laws, the Manager in his, her, or its sole discretion may, from time to
time, appoint any individuals as officers with such duties, authorities,
responsibilities and titles as the Manager deems appropriate. The officers will
serve until their successors are duly appointed by the Manager or until their
earlier removal or resignation. Any officer appointed by the Manager may be
removed at any time by the Manager, and any vacancy in any office may be filled
by the Manager. If any Person elected to serve as an officer is found to be an
Unsuitable Person, the Manager shall immediately remove that Person as an
officer and that officer shall thereupon automatically cease to be an officer.
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ARTICLE VIII
DISSOLUTION OF THE COMPANY
8.1 Dissolution. The Company shall be dissolved and its affairs wound up
as determined by the Member or by the entry of a decree of judicial dissolution.
8.2 Resignation. Subject to Section 6.5 and applicable law, the Member
may not resign from the Company before the dissolution and winding up of the
Company.
8.3 Distribution on Dissolution and Liquidation. If the Company is
dissolved for any reason, the business of the Company shall be continued to the
extent necessary to allow an orderly winding up of its affairs, including the
liquidation and termination of the Company pursuant to the provisions of this
Section, as promptly as practicable thereafter, and each of the following shall
be accomplished:
(a) the Manager shall oversee the winding up of the Company's
affairs;
(b) the assets of the Company shall be liquidated as determined by
the Manager, or the Manager may determine not to sell all or any portion of the
assets, in which event such assets shall be distributed in kind; and
(c) the proceeds of sale and all other assets of the Company shall
be applied and distributed as follows and in the following order of priority:
(i) to the expenses of liquidation;
(ii) to the payment of the debts and liabilities of the
Company, including any debts and liabilities owed to the Manager and then to the
Member; and
(iii) the balance, if any, to the Member.
ARTICLE IX
LIABILITY, EXCULPATION AND INDEMNIFICATION
9.1 Exculpation.
(a) No Covered Person shall be liable to the Company or any other
Covered Person for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by that Covered Person in good faith on behalf of
the Company and in a manner reasonably believed to be within the scope of
authority conferred on that Covered Person by this Agreement, the Manager or an
appropriate officer or employee of the Company. However, a Covered Person shall
be liable for any such loss, damage or claim incurred by reason of that Covered
Person's intentional misconduct, fraud or a knowing violation of the law, which
was material to the cause of action.
(b) A Covered Person shall be fully protected in relying in good
faith upon the records of the Company and upon such information, opinions,
reports or statements presented to
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the Company by any Person as to matters the Covered Person reasonably believes
are within that other Person's professional or expert competence, including
information, opinions, reports or statements as to the value and amount of the
assets, liabilities, profits or losses or any other facts pertinent to the
existence and amount of assets from which distributions to the Member might
properly be paid.
9.2 Fiduciary Duty. To the extent that, at law or in equity, a Covered
Person has duties (including fiduciary duties) and liabilities relating thereto
to the Company, the Manager or to the Member, then, to the fullest extent
permitted by applicable law, a Covered Person acting under this Agreement shall
not be liable to the Company, the Manager or to the Member for its good faith
acts or omissions in reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and
liabilities of a Covered Person otherwise existing at law or in equity, shall
replace such other duties and liabilities of the Covered Person.
9.3 Indemnity. Subject to Section 9.5 below, the Company shall indemnify
and hold any Covered Person harmless to the fullest extent permitted by C.R.S.
7-80-705; except this provision will not apply to (a) a Manager who has acted
outside of the Manager's Standard of Care in Section 7.2 above, or (b) any
Covered Person as stated in Sections 9.1 and 9.2 above.
9.4 Advance Payment of Expenses. The expenses of any Covered Person
required to be indemnified by the Company pursuant to Section 9.3 above that are
incurred in defending a civil or criminal action, suit, or proceeding shall be
paid by the Company as they are incurred and in advance of the final disposition
of the action, suit, or proceeding, upon receipt of an undertaking by or on
behalf of the Covered Person to repay the amount if it is ultimately determined
by a court of competent jurisdiction that the Covered Person is not entitled to
be indemnified by the Company. The provisions of this Section do not affect any
rights to advancement of expenses to which personnel of the Company other than
the Member may be entitled under any contract or otherwise by law.
9.5 Assets of the Company. Any indemnification under this Article VIII
shall be satisfied solely out of the assets of the Company. No debt shall be
incurred by the Company or the Member in order to provide a source of funds for
any indemnity, and the Member shall not have any liability (or any liability to
make any additional Capital Contribution) on account thereof.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 Notices. All notices to be given under this Agreement or by law
shall be in writing and shall be addressed to the party at the party's last
known address or facsimile number appearing on the books of the Company. If no
such address or facsimile number has been provided, it will be sufficient to
address any notice (or fax any notice that may be faxed) to such party at the
Records Office of the Company. Notice shall, for all purposes, be deemed given
and received, (a) if hand-delivered, when the notice is received, (b) if sent by
United States mail (which must be by first-class mail with postage charges
prepaid), three (3) days after it is posted with the United States Postal
Service, (c) if sent by a nationally recognized overnight delivery
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service, when the notice is received, or (d) if sent by facsimile, when the
facsimile is transmitted and confirmation of complete receipt is received by the
transmitting party during normal business hours. If any notice is sent by
facsimile, the transmitting party shall send a duplicate copy of the notice to
the parties to whom it is faxed by regular mail. If notice is tendered and is
refused by the intended recipient, the notice shall nonetheless be considered to
have been given and shall be effective as of the date of such refusal. The
contrary notwithstanding, any notice given in a manner other than that provided
in this Section that is actually received by the intended recipient shall be
deemed an effective delivery of such notice.
10.2 Insurance. The Company may purchase and maintain insurance, to the
extent and in such amounts as the Manager shall, in his, her, or its sole
discretion, deem reasonable, on behalf of Covered Persons and such other Persons
as the Manager shall determine, against any liability that may be asserted
against or expenses that may be incurred by any such Person in connection with
the activities of the Company.
10.3 Membership Certificate. The Company may issue a certificate to the
Member to represent the Interest in the Company upon execution of this Agreement
and the payment of the initial Capital Contribution.
10.4 Voting Securities.
(a) 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 in violation thereof shall be
void and the voting securities or other voting interests in violation thereof
shall be void and such voting securities or other voting interests shall be
deemed not to be issued and outstanding until (i) the Company ceases to be
subject to the jurisdiction of the Colorado Limited Gaming Control Commission,
or (ii) the Colorado Limited Gaming Control Commission shall, by affirmative
action, validate the issuance or waive any defect in issuance.
(b) No voting securities or other voting interests issued by the
Company and no interest, 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 (i) the Company ceases to be
subject to the jurisdiction of the Colorado Limited Gaming Control Commission,
or (ii) the Colorado Limited Gaming Control Commission shall, by affirmative
action, validate said transfer or waive any defect in said transfer.
(c) If the Colorado Limited Gaming Control Commission at any time
determines that a holder of voting securities or other voting interests of the
Company is unsuitable to hold such securities or other voting interests, then
the issuer of those voting securities or other voting interests may, within
sixty (60) days after the finding of unsuitability, purchase the voting
securities or other voting interests of the unsuitable person at the lesser of
(i) the cash equivalent of that person's investment in the Company; or (ii) the
current market price as of the date of the finding of unsuitability unless those
voting securities or other voting interests are transferred to a suitable person
(as determined by the Commission) within sixty (60)
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days after the finding of unsuitability. Until those voting securities or other
voting interests are owned by persons found by the Commission to be suitable to
own them, (1) the Company shall not be required or permitted to pay any dividend
or interest with regard to the voting securities or other voting interests; (2)
the holder of those voting securities or other voting interests shall not be
entitled to vote on any matter as the holder of those voting securities or other
voting interests, and those voting securities or other voting interests shall
not for any purposes be included in the voting securities or other voting
interests of the Company entitled to vote; and (3) the Company shall not pay any
remuneration in any form to the holder of those voting securities or other
voting interests, except in exchange for those voting securities or other voting
interests as provided in this paragraph.
10.5 Complete Agreement. This Agreement, together with the Articles to
the extent referenced herein, constitutes the complete and exclusive agreement
and understanding of the Manager, the Member and the Company with respect to the
subject matter contained herein. This Agreement and the Articles replace and
supersede all prior agreements, negotiations, statements, memoranda and
understandings, whether written or oral, by and among the Manager, the Member
and the Company.
10.6 Amendments. This Agreement may be amended only by a writing signed
by the Manager, the Member and the Company.
10.7 Applicable Law; Jurisdiction. This Agreement, and the rights and
obligations of the parties hereto, shall be interpreted and enforced in
accordance with and governed by the laws of the State of Colorado without regard
to the conflict laws of that State.
10.8 Interpretation. The headings in this Agreement are inserted for
convenience only and are in no way intended to describe, interpret, define, or
limit the scope, extent or intent of this Agreement or any provisions contained
herein. In the interpretation of this Agreement, the singular may be read as the
plural, and vice versa, the neuter gender as the masculine or feminine, and vice
versa, and the future tense as the past or present, and vice versa, all
interchangeably as the context may require in order to fully effectuate the
intent of the parties and the transactions contemplated herein. Syntax shall
yield to the substance of the terms and provisions hereof.
10.9 Counterparts and Facsimile Copies. Facsimile copies of this
Agreement, any counterpart of this Agreement or any approval or written consent
of the Member, and facsimile signatures hereon or thereon, shall have the same
force and effect as originals.
10.10 Severability. If any provision of this Agreement, or any
application thereof, should be held by a court of competent jurisdiction to be
invalid, void, illegal or unenforceable to any extent, that provision shall be
deemed severable and the remainder of this Agreement, and all applications
thereof, shall not be affected, impaired or invalidated thereby, and shall
continue in full force and effect to the fullest extent permitted by law.
10.11 Waivers. No waiver of any of the provisions of this Agreement shall
be deemed, or shall constitute, a waiver of any other provision, whether or not
similar, nor shall any waiver
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constitute a continuing waiver, and no waiver shall be binding unless evidenced
by an instrument in writing and executed by the party making the waiver.
10.12 No Third Party Beneficiaries. This Agreement is made solely among
and for the benefit of the Manager, the Member and the Company and their
respective successors and assigns, and no other Person shall have any rights,
interest or claims hereunder or be entitled to any benefits under or on account
of this Agreement as a third party beneficiary or otherwise.
10.13 Securities under the UCC. If the Member deems it advisable, the
Interest may be deemed to be a security governed by Article 8 of the Uniform
Commercial Code in the State of Colorado by the application to any certificate
issued to evidence the Interest of a legend to that effect.
10.14. Additional Documents and Acts. The Manager and the Member agree to
execute and deliver additional documents and instruments and to perform
additional acts as may be necessary or appropriate to effectuate, carry out and
perform all of the terms, provisions and conditions of this Agreement, and the
transactions contemplated by this Agreement.
This Agreement was executed as of the date first written above.
MANAGER:
/s/ Xxx X. Xxxxxx
--------------------------------------------
Xxx X. Xxxxxx
MEMBER:
MAJESTIC INVESTOR, LLC
By: /s/ Xxx X. Xxxxxx
----------------------------------------
Xxx X. Xxxxxx, Manager
COMPANY:
XXXXXX COLORADO GAMING, LLC
By: /s/ Xxx X. Xxxxxx
----------------------------------------
Xxx X. Xxxxxx, Manager
12
SCHEDULE I
Member's Name: Majestic Investor, LLC
Member's Address: c/x Xxxxxx Companies
000 Xxxxxxxxxxx Xxxxxx, #0000
Xxxxxxx, Xxxxxxxx 00000
Member's Initial
Capital Contribution: $100.00
Member's Ownership Interest: 100%
