EXHIBIT 3.11
OPERATING AGREEMENT OF
VENETIAN OPERATING COMPANY LLC,
A NEVADA LIMITED LIABILITY COMPANY
THIS OPERATING AGREEMENT is made effective as of the 4th day of June, 2002,
by and among Venetian Casino Resort, LLC, a Nevada limited liability company,
as the sole initial member of Venetian Operating Company LLC, a Nevada
limited liability company (the "COMPANY"), and the Company.
EXPLANATORY STATEMENT
This operating agreement governs the relationship between the Company and its
member, pursuant to the Nevada Limited Liability Company Act, as defined
below.
In consideration of their mutual promises, covenants, and agreements, the
parties hereto do hereby promise, covenant and agree as follows:
DEFINITIONS
For purposes of this operating agreement, and unless the context clearly
otherwise indicates, the following terms shall have the following meanings:
"ACT" -- The Nevada Limited Liability Company Act, Nev. Rev. Stat. ` ` 86.011
to 86.590, as amended from time to time.
"AGREEMENT" or "OPERATING AGREEMENT" -- This operating agreement.
"CODE" -- The Internal Revenue Code of 1986, as amended.
"COMPANY" -- Venetian Operating Company LLC, a Nevada limited liability company.
"MANAGER" -- Venetian Casino Resort, LLC, as the Manager of the Company, and
any other Person or Persons who may subsequently be designated as a Manager
of the Company pursuant to the further terms of this Agreement. The Manager
need not be a Member of the Company.
"MEMBER" -- Venetian Casino Resort, LLC., as the sole initial Member of the
Company, and any other Person or Persons who may subsequently be designated
as the sole Member of this Company pursuant to the further terms of this
Agreement.
"MEMBERSHIP INTEREST" -- The rights of the Member in distributions and
allocations of profits, losses,
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gains, deductions and credits.
"MEMBERSHIP RIGHTS" -- The rights of the Member, which are comprised of: (1)
his Membership Interest, and (2) his right to vote and to otherwise
participate in the management and governance of the Company.
"PERSONS" -- Individuals, partnerships, corporations, limited liability
companies, unincorporated associations, trusts, estates and any other type of
entity.
ARTICLE I
FORMATION
1.1. ORGANIZATION. The Member acknowledges the formation of the Company as a
Nevada limited liability company pursuant to the provisions of the Act.
1.2. AGREEMENT. For and in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Member and the Company
hereby agree to the terms and conditions of this Agreement, as it may from
time to time be amended according to its terms. It is the express intention
of the Member and the Company that the Agreement be the agreement of the
parties, and, except to the extent a provision of the Agreement expressly
incorporates federal income tax rules by reference to sections of the Code or
Regulations or is prohibited or ineffective under the Act, the Agreement
shall govern, even when inconsistent with, or different from, the provisions
of the Act or any other law or rule. To the extent any provision of this
Agreement is prohibited or ineffective under the Act, the Agreement shall be
considered amended to the smallest degree possible in order to make the
Agreement effective under the Act.
1.3. NAME. The name of the Company is Venetian Operating Company LLC and all
Company business shall be conducted under that name.
1.4. PRINCIPAL PLACE OF BUSINESS. The principal place of business of the
Company within the State of Nevada shall first be at 0000 Xxx Xxxxx Xxxxxxxxx
Xx., Xxx Xxxxx, Xxxxxx 00000. The Company may locate its places of business
and registered office at any other place or places as the Members or Manager
may from time to time deem advisable.
1.5. REGISTERED AGENT. The Company's registered office shall first be at 1700
Bank of America Plaza, 000 Xxxxx Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000. The
name of its initial registered agent at such address shall be Xxxxxx Xxxxxx &
Xxxxxxx, Ltd., a Nevada professional corporation. The Member may, from time
to time, change the registered agent or the registered office through
appropriate filings with the Secretary of State. In the event the registered
agent ceases to act as such for any reason or the registered office shall
change, the Manager shall promptly designate a replacement registered agent
or file a notice of change of address as the case may be.
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1.6. TERM. The Company shall continue until it is dissolved in accordance
with either the provisions of this Agreement or the Act.
1.7. PERMITTED BUSINESS. The business of the Company shall be to (i) provide
business and operating services, (ii) engage in any activity or business
incidental, directly related or similar thereto, (iii) engage in any business
or activity that is a reasonable extension, development or expansion thereof
or ancillary thereto, and (iv) engage in any other lawful business and to do
any lawful act concerning any and all lawful business for which a limited
liability company may be organized under the laws of the State of Nevada.
ARTICLE II
CONTRIBUTIONS
2.1. INITIAL CONTRIBUTIONS. The initial capital contributions to the Company
of the Member shall be made within sixty (60) days of the Member's execution
and delivery of this Agreement. The Member's initial capital contribution is
One Thousand Dollars ($ 1,000.). The Member may, but shall not be required
to, make additional capital contributions.
2.2. LOANS. In the event the capital needs of the Company exceed the capital
contributions provided by section 2.1, the Member may, but shall not be
required to, loan additional monies to the Company in amounts and on terms
and conditions to be agreed upon by the Company and the Member. The Company
may also borrow money for its capital needs from any third parties in amounts
and on terms and conditions determined by the Member.
2.3. INTEREST ON AND RETURN OF CAPITAL CONTRIBUTION. The Member shall not be
entitled to interest on any capital contribution, or to a return of any
capital contribution, except as specifically provided for herein.
ARTICLE III
PROFIT AND LOSS
The Membership Interest of the Member in the profits and losses of Company
shall be one hundred percent (100%).
ARTICLE IV
DISTRIBUTIONS
4.1. DISTRIBUTIONS. Cash distributions shall be made in such amounts and at
such times as may be determined by the Manager in its discretion.
4.2. LIMITATIONS ON DISTRIBUTIONS. No distribution shall be declared or paid
unless, after the
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distribution is made, the Company's assets exceed the Company's liabilities.
Liabilities to the Member on account of its Membership Interest shall not be
a Company liability for purposes of this section.
ARTICLE V
RIGHTS AND DUTIES OF MEMBER AND MANAGING PERSONS
5.1. MANAGEMENT RIGHTS. The Company shall be managed by a Manager who need
not be a Member of the Company. The initial Manager shall be Venetian Casino
Resort, LLC, who shall remain as Manager until such Manager's death,
bankruptcy, incompetence, resignation, or removal in the Member's sole
discretion. In the event of such death, incompetence, resignation or removal,
a successor Manager or Managers shall be appointed by the Member. The Manager
shall be the Company's agent and shall have authority to take all actions,
including incurring debt, entering contracts, and acquiring and transferring
property on the Company's behalf. The Manager may delegate management
authority in writing from time to time to the officers of the Company.
5.2. LIABILITY OF MEMBER AND OFFICERS. The Manager and officers, if any, of
the Company ("MANAGING PERSONS") and Member shall not be liable as such for
the Company's liabilities, debts or obligations. The failure by the Company
to observe any formalities or requirements relating to the exercise of its
powers or the management of its business or affairs under this Agreement or
the Act shall not be grounds for imposing personal liability on any Managing
Person or Member.
5.3. INDEMNIFICATION. The Company shall indemnify a Managing Person or Member
for all costs, losses, liabilities and damages paid by the Managing Person in
connection with the Company's business, to the fullest extent provided or
allowed by Nevada law.
5.4. NO FIDUCIARY DUTIES. A Managing Person shall have no fiduciary duties of
loyalty with respect to the Company. A Managing Person shall be required to
devote only such time to the affairs of the Company as such Managing Person
determines in its sole discretion is necessary to manager and operate the
Company. Each such Managing Person shall be free to serve any other Person in
any capacity that it may deem appropriate. Insofar as permitted by Nevada
law, each Managing Person (acting on its own behalf), and its affiliates may
engage in whatever activities they choose, whether the same are competitive
with the Company or otherwise, without having or incurring any obligation to
offer any interest in such activities to the Company. Neither this Agreement
nor any activity undertaken pursuant hereto shall prevent any Managing Person
or its affiliates from engaging in such activities, or require any Managing
Person to permit the Company to participate in any such activities. To the
extent permitted by Nevada law, a Managing Person, when acting on behalf of
the Company, is hereby authorized to purchase property from, sell property
to, or otherwise deal with any Managing Person or Member acting on its own
behalf, provided that any purchase, sale or other transaction shall be made
on terms and conditions which are no less favorable to the Company than if
the sale, purchase or other transaction had been entered into with an
independent third party.
5.5. TIME AND ATTENTION DEVOTED TO COMPANY. A Managing Person shall devote as
much of its time as is necessary to discharge its duties to the Company. The
Company acknowledges that it is not
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anticipated that such Managing Persons will be required to spend substantial
time in so discharging their duties to the Company and that such Managing
Persons may, therefore, spend substantially all of their business time on
matters not related to the Company.
ARTICLE VI
BANKING
All revenues of the Company shall be deposited regularly in the Company
savings and checking accounts at such financial institutions as shall be
selected by the Manager.
ARTICLE VII
ACCOUNTING AND RECORDS
The Company shall maintain at its principal place of business or such other
place as the Member may choose, the following:
(a) a current list of the full name and last-known business,
residence, or mailing address of the Member, Manager and
officers, if any, of the Company, both past and present;
(b) a copy of the Articles of Organization and all amendments
thereto, executed copies of any delegation of management
powers to officers of the Company, if any, and executed copies
of any powers of attorney pursuant to which any amendment to
the Agreement has been executed;
(c) copies of the Company's federal, state, and local income tax
returns and reports, if any, for the three most recent years;
(d) copies of any currently effective written operating
agreements, copies of any writings permitted or required under
the Act, and copies of any financial statements of the Company
for the three most recent years;
(e) minutes of any member meetings;
(f) a statement prepared and certified as accurate by the Manager
which describes:
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(i) the times at which or events on the happening of which any
additional contributions agreed to be made by each member
are to be made;
(ii) any written consents obtained from the Member pursuant to the
Act.
ARTICLE VIII
MEMBERSHIP INTEREST AND MEMBERSHIP RIGHTS OF A DECEASED,
INCOMPETENT OR DISSOLVED MEMBER
If a Member who is an individual dies or a court of competent jurisdiction
adjudges him or her to be incompetent to manage his or her person or his or
her property, the Member's executor, administrator, guardian, conservator or
other legal representative shall be entitled to the benefits, and shall be
subject to the burdens, of the Member's Membership Interest.
ARTICLE IX
TRANSFER OF MEMBERSHIP INTEREST AND ADDITIONAL MEMBERS
9.1. TRANSFER OF ENTIRE MEMBERSHIP INTEREST. The Member may sell,
hypothecate, pledge, assign or otherwise voluntarily, during the Member's
lifetime or upon his or her death, transfer all of his or her Membership
Interest or Membership Rights in the Company to any other person. In the
event the Member transfers his or her entire Membership Interest, the
transferee(s) shall become a member without any further action, unless the
Manager, Member and transferee all agree otherwise.
9.2. ADMISSION OF ADDITIONAL MEMBERS. The Member may also freely transfer
apart of his or her Membership Interest; provided however, that prior to the
admission of any other member to the Company, including but not limited to
the addition of a member as the result of a transfer by the Member of only a
part of his or her Membership Interest, an amended operating agreement shall
have been negotiated between such members to become effective upon their
admission to the Company.
ARTICLE X
WITHDRAWAL OF MEMBER OR MANAGER
The Member has the power to withdraw from the Company at any time. The
Manager and officers, if any, have the power to resign at any time.
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ARTICLE XI
DISSOLUTION AND TERMINATION
11.1. EVENTS OF DISSOLUTION. The Company shall dissolve upon the occurrence
of any of the following events:
(a) By the Member's written statement of dissolution;
(b) By the entry of a decree of judicial dissolution pursuant to
the Act.
11.2. WINDING UP, LIQUIDATION AND DISTRIBUTION OF ASSETS.
(a) Upon dissolution, an accounting shall be made by the Company's
independent accountants of the accounts of the Company and of
the Company's assets, liabilities and operations, from the
date of the last previous accounting until the date of
dissolution. The Manager shall immediately proceed to wind up
the affairs of the Company.
(b) If the Company is dissolved and its affairs are to be wound
up, the Manager shall (i) sell or otherwise liquidate all of
the Company's assets as promptly as practicable (except to the
extent the Member determines to receive any assets in kind),
(ii) discharge all liabilities of the Company (other than
liabilities to the Member), including all costs relating to
the dissolution, winding up, and liquidation and distribution
of assets, (iii) establish such reserves as reasonably may be
necessary to provide for contingent liabilities of the
Company, (iv) discharge any liabilities of the Company to the
Member other than on account of its interest in Company
capital or profits, and (v) distribute the remaining assets to
the Member:
(c) Upon completion of the winding up, liquidation and
distribution of the assets, the Company shall be deemed
terminated.
(d) The Manager shall comply with any applicable requirements of
applicable law pertaining to the winding up of the affairs of
the Company and the final distribution of its assets.
11.3. ARTICLES OF DISSOLUTION. When all debts, liabilities and obligations
have been paid and discharged or adequate provision has been made therefor
and all of the remaining property and assets have been distributed to the
Member, articles of dissolution shall be executed and acknowledged by the
Member, which articles shall set forth the information required by the Act.
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11.4. FILING OF ARTICLES OF DISSOLUTION.
(a) Such articles of dissolution shall be delivered to the Nevada
Secretary of State.
(b) Upon the filing of the articles of dissolution, the existence
of the Company shall cease, except for the purpose of suits,
other proceedings and appropriate action as provided in the
Act. The Member shall thereafter be a trustee for creditors of
the Company and as such shall have authority to distribute any
Company property discovered after dissolution, convey real
estate, and take such other action as may be necessary on
behalf of and in the name of the Company.
11.5. RESPONSIBILITY. Upon dissolution, the Member shall look solely to the
assets of the Company for the return of its Capital Contribution. The winding
up of the affairs of the Company and the distribution of its assets shall be
conducted by the Manager who is hereby authorized to take all actions
necessary to accomplish such distribution, including, without limitation,
selling any Company assets it deems necessary or appropriate to sell.
ARTICLE XII
MISCELLANEOUS PROVISIONS
12.1. INUREMENT. This Agreement shall be binding upon, and inure to the
benefit of, all parties hereto, their personal and legal representatives,
guardians, successors, and assigns to the extent, but only to the extent,
that assignment is provided for in accordance with, and permitted by, the
provisions of this Agreement.
12.2. GENDER AND HEADINGS. Throughout this Agreement, where such meanings
would be appropriate: (a) the masculine gender shall be deemed to include the
feminine and the neuter and vice versa, and (b) the singular shall be deemed
to include the plural and vice versa. The headings herein are inserted only
as a matter of convenience and reference, and in no way define or describe
the scope of the Agreement or the intent of any provisions thereof.
12.3. SEVERABILITY. Nothing contained in this Agreement shall be construed as
requiring the commission of any act contrary to law. In the event there is
any conflict between any provision of this Agreement and any statute, law,
ordinance or regulation contrary to which the Member or the Company have no
legal right to contract, the latter shall prevail, but in such event the
provisions of this Agreement thus affected shall be curtailed and limited
only to the extent necessary to conform with said requirement of law. In the
event that any part, article, section, paragraph or clause of this Agreement
shall be held to be indefinite, invalid, or otherwise unenforceable, the
entire Agreement shall not fail on account thereof, and the balance of the
Agreement shall continue in full force and effect.
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12.4. MEMBERSHIP INTEREST. The Member hereby covenants, acknowledges and agrees
that the Membership Interest in the Company shall for all purposes be deemed
personalty and shall not be deemed realty or any interest in the assets or
property owned by the Company.
12.5. NOT FOR BENEFIT OF CREDITORS. The provisions of this Agreement are
intended only for the regulation of relations between the Member and the
Company. This Agreement is not intended for the benefit of creditors and does
not grant any rights to or confer any benefits on creditors or any other person
who is not a Member of the Company.
12.6. GOVERNING LAW. It is the intent of the parties hereto that all questions
with respect to the construction of this Agreement and the rights, duties,
obligations and liabilities of the parties shall be determined in accordance
with the applicable provisions of the laws of the State of Nevada.
CERTIFICATE
IN WITNESS WHEREOF, the parties have hereunto set their hands and acknowledged
this Agreement and do hereby certify that the foregoing Agreement constitutes
the Operating Agreement of Venetian Operating Company LLC, a Nevada limited
liability company, adopted by the Member of the Company and the Company
effective as of June 4TH , 2002.
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Venetian Casino Resort, LLC, as sole member
By: Las Vegas Sands, Inc., as managing member
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx, Secretary
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