COLUMBIA PROPERTIES VICKSBURG, LLC FIRST AMENDMENT TO LIMITED LIABILITY COMPANY AGREEMENT
Exhibit
3.11(a)
COLUMBIA PROPERTIES VICKSBURG, LLC
FIRST AMENDMENT TO LIMITED LIABILITY COMPANY AGREEMENT
THIS FIRST AMENDMENT TO LIMITED LIABILITY COMPANY AGREEMENT
(the “Amendment”) is made and entered into as of December 21, 2006 by COLUMBIA PROPERTIES
VICKSBURG, LLC, a Mississippi limited liability company (the “Company”), and the persons who have
executed this Amendment or a counterpart hereof.
1. Recitals. The Company and the JMBS Casino Trust f/b/o Xxxxxx X.
Xxxx, the JMBS Casino Trust f/b/o Xxxxxx X. Xxxx, the JMBS Casino Trust f/b/o
Xxxxxxxx X. Xxxx, the JMBS Casino Trust f/b/o Xxxxxxx X. Xxxx, XX, the JMBS Casino
Trust f/b/o Xxxxx X. Xxxxxx, the JMBS Casino Trust f/b/o Xxxxxxxx X. Xxxx, the JMBS
Casino Trust f/b/o Xxxxx X. Xxxx, and Xxxxxxx X. Xxxx, III (collectively, the “Members”)
are parties to a Limited Liability Company Agreement dated as of January 23, 2003 (the
“Agreement”). Section 9.7 of the Agreement states that the Agreement may be
amended only by a writing signed by the Company, the Members and not less than 5/7
of the then living Yung Siblings (as defined in the Agreement). The Company, the
Members and the Yung Siblings desire to amend the Agreement in accordance with the
terms of this Amendment.
2. Amendment.
(a) Purpose. Section 1.4 of the Agreement is hereby amended and
restated in its entirety as follows:
1.4 Purpose. The Company is formed for the purpose of (i) acquiring,
owning, and operating the riverboat gaming facility currently known as Horizon
Vicksburg Casino and the hotel currently known as Horizon Vicksburg Hotel, both in
Vicksburg, Mississippi, together with all appurtenances and privileges and other
real and personal property related thereto, (ii) entering into the Financing
Documents and any and all documents contemplated by the Financing Documents and the
performance of the obligations of the Company thereunder, including the grant of
guarantees, the grant of security and the compliance with the affirmative and
negative covenants, registration rights agreements, indemnities, representations and
warranties and other agreements and obligations set forth therein, and (iii)
engaging in any other lawful act or activity. The Company shall have all the powers
necessary, incidental, or convenient to effect any purpose for which it is formed,
including all powers granted by the Act.
(b) Management and Control in General. Section 4.1 (c) of the
Agreement is hereby amended and restated in its entirety to read as follows:
(c) If Xxxxxxx X. Xxxx, III ceases to be the Manager, then without the written
consent of the holders of not less than 5/7 of the outstanding Voting Units and not
less than 5/7 of the then living Yung Siblings, the Company shall not: (i) employ or
engage the services of any Member, any beneficiary of a trust that is a Member, or
any Member’s Family Members or Affiliates (collectively a “Restricted Person”), and
in no event shall the Company provide compensation or benefits to any Restricted
Person in excess of the fair market value of the services actually rendered to the
Company; (ii) make any loan or advancement to or receive any loan or advancement
from any Restricted Person; (iii) issue to any Restricted Person any Units or any
right to purchase, subscribe to, or otherwise acquire any Units or any interest
therein, whether by granting options, Unit bonuses, warrants, rights, convertible
securities, or otherwise; or (iv) enter into any other agreement or transaction with
any Restricted Person; provided, however, that the Company shall be
permitted to take any of the foregoing actions to the extent contemplated by, or
required by the terms of, the Financing Documents, including taking such action as
may be necessary to permit any Restricted Person to fulfill its obligations under
the Financing Documents.
(c) Definitions. Section 9.1 of the Agreement shall be amended by adding the following
definition after the definition of “Financial Rights” and before the definition of “Gaming
Regulations”:
“Financing Documents” shall mean (i) the Credit Agreement to be entered into by and
among Wimar OpCo, LLC (d/b/a Tropicana Entertainment)(“Tropicana Entertainment”),
Wimar OpCo Intermediate Holdings, LLC, XX Xxxxxxxx Realty, LLC, Columbia Properties
Vicksburg, LLC, JMBS Casino LLC, Credit Suisse, as Administrative and Collateral
Agent, the other Agents and Arrangers party thereto and the Lenders party thereto
(the “Credit Agreement”), (ii) each other Loan Document (as defined in the Credit
Agreement), (iii) the Indenture, to be dated on or about December 28, 2006 (the
“Indenture”), among Tropicana Entertainment, Wimar OpCo Finance Corp. (d/b/a
Tropicana Finance) (“Tropicana Finance” and, together with Tropicana Entertainment,
the “Issuers”) and U.S. Bank National Association, as trustee (the “Trustee”), to be
supplemented by the Supplemental Indenture to be dated on or about January 3, 2007,
among the Notes Guarantors identified therein (including the Company), the Issuers
and the Trustee, (iv) the Securities (as defined in the Indenture) to be issued
under the Indenture, (v) the Purchase Agreement dated December 14, 2006, among the
Issuers and Credit Suisse Securities (USA) LLC, as representative of the initial
purchasers identified therein, together with the counterparts thereto executed by
the guarantors of the Securities (including the Company), and (vi) the Registration
Rights Agreement to be dated on or about December 28, 2006, among the Issuers and
Credit Suisse Securities (USA) LLC, as representative of the initial purchasers
identified therein, together with the
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counterparts thereto executed by the guarantors of the Securities (including the
Company), in each case as such agreements and documents may be amended, modified or
supplemented from time to time.
3. Remainder of Agreement. Except as amended by this Amendment, the
Agreement shall remain in full force and effect.
4. Acknowledgment of Financing Documents. Each of the Members, and
each of the Yung Siblings, as beneficiaries of the JMBS Casino Trust, hereby
acknowledges and agrees that the Company is entering into the Financing Documents
and that such action is in the best interests of the Company, and further hereby
consents to and endorses the entry into of the Financing Documents. Each of the
Members, and each of the Yung Siblings, further hereby acknowledges that upon the
execution by the Company of the Financing Documents, it will become a party thereto
and will be subject to the guarantees, grants of security, affirmative and negative
covenants, registration rights agreements, indemnities, representations and warranties
and other agreements and obligations set forth therein, and hereby consents to thereto.
5. Acknowledgment of Negative Pledge. Each of the Members, and each
of the Yung Siblings, as beneficiaries of the JMBS Casino Trust, hereby acknowledges
and agrees that the JMBS Casino Trust is entering into a Negative Pledge pursuant to
which it agrees not to encumber or dispose of the equity of the Company and that such
action is in the best interests of the Company, and further hereby consents to and
endorses the entry into of the Negative Pledge. Each of the Members, and each of the
Yung Siblings, further hereby acknowledges that upon the execution by the JMBS
Casino Trust of the Negative Pledge, it will become a party thereto and will be subject to
the affirmative and negative covenants, indemnities, representations and warranties and
other agreements and obligations set forth therein, and hereby consents to thereto.
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Signed as of the date above
| COLUMBIA PROPERTIES VICKSBURG, LLC | THE JMBS CASINO TRUST f/b/o Xxxxxxx X. Xxxx, XX |
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By:
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/s/ Xxxxxxx X. Xxxx, III
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By: | /s/ Xxxxxx X. Xxxx
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| THE JMBS CASINO TRUST f/b/o Xxxxxx X. Xxxx |
THE JMBS CASINO TRUST f/b/o Xxxxx X. Xxxxxx |
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By:
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/s/ Xxxxxx X. Xxxx
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By: | /s/ Xxxxxx X. Xxxx
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| THE JMBS CASINO TRUST f/b/o Xxxxxx X. Xxxx |
THE JMBS CASINO TRUST f/b/o Xxxxxxxx X. Xxxx |
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By:
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/s/ Xxxxxx X. Xxxx
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By: | /s/ Xxxxxx X. Xxxx
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| THE JMBS CASINO TRUST f/b/o Xxxxxxxx X. Xxxx |
THE JMBS CASINO TRUST f/b/o Xxxxx X. Xxxx |
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By:
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/s/ Xxxxxx X. Xxxx
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By: | /s/ Xxxxxx X. Xxxx
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| /s/ Xxxxxxx X. Xxxx, III | /s/ Xxxxxxx X. Xxxx, XX | |||||||||
| Xxxxxxx X. Xxxx, III | Xxxxxxx X. Xxxx, XX | |||||||||
| /s/ Xxxxxxxx X. Xxxx | /s/ Xxxxxx X. Xxxx | |||||||||
| Xxxxxxxx X. Xxxx | Xxxxxx X. Xxxx | |||||||||
Columbia Properties Vicksburg First Amendment to Operating Agreement Signature Page
| /s/ Xxxxx X. Xxxx | /s/ Xxxxx X. Xxxxxx | |||||||||
| Xxxxx X. Xxxx | Xxxxx X. Xxxxxx | |||||||||
| /s/ Xxxxxx X. Xxxx | /s/ Xxxxxxxx X. Xxxx | |||||||||
| Xxxxxx X. Xxxx | Xxxxxxxx X. Xxxx | |||||||||
Columbia Properties Vicksburg First Amendment to Operating Agreement Signature Page
