JMBS CASINO LLC LIMITED LIABILITY COMPANY AGREEMENT
Exhibit
3.13
JMBS CASINO LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT is made and entered into as of February 6, 2002, by
and among JMBS CASINO LLC, a Mississippi limited liability company (the “Company”), and the persons
who have executed this Agreement or a counterpart hereof. The parties hereto, intending to be
legally bound, agree as follows:
ARTICLE 1.
ORGANIZATION
ORGANIZATION
1.1 Formation of Limited Liability Company. On January 23, 2002, the Company was
organized as a limited liability company pursuant to the Act by the filing of a Certificate of
Formation (“Certificate”) with the Secretary of State of Mississippi as required by the Act. The
Members hereby adopt and ratify the Certificate, a copy of which is attached as Exhibit A
hereto, and ratify the actions of the Company’s organizer(s). In the event of a conflict between
the terms of this Agreement and the terms of the Certificate, the terms of the Certificate shall
prevail.
1.2 Name. The name of the Company shall be JMBS CASINO LLC.
1.3 Registered Agent. The Company’s initial registered agent shall be Xxxx X. Xxxxx
XX, 000 X. Xxxxxxx Xxxxxx, Xxxxx 0000, XX Xxx 0000, Xxxxxxx, Xxxxxxxxxxx 00000-0000. The Manager(s)
may, at any time and from time to time, change the registered agent of the Company without the
consent of, or notice to, the Members.
1.4 Purpose. The Company is formed for the purpose of (i) acquiring, owning, and
operating the riverboat gaming facility known as Bayou Caddy’s Jubilee Casino and the hotel known
as The Key West Inn, both in Greenville, Mississippi, together with all appurtenances and
privileges and other real and personal property related thereto, (ii) the becoming the member of
Greenville Hotel II, LLC, a Mississippi limited liability company that operates the Greenville Inn
& Suites in Greenville, Mississippi, and (iii) engaging in any activity necessary, advisable,
incidental, or convenient to the foregoing. 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.
1.5 Fiscal Year. The fiscal year of the Company shall be the calendar year or such
other fiscal year as the Manager(s) shall determine pursuant to the provisions of Code Section
706(b).
1.6 Term. The Company was formed on the date of filing of the Certificate and its
period of existence shall be perpetual.
ARTICLE 2.
CAPITAL CONTRIBUTIONS AND CAPITAL ACCOUNTS
CAPITAL CONTRIBUTIONS AND CAPITAL ACCOUNTS
2.1 Capital Contributions. Upon execution of this Agreement, each Member shall
contribute to the Company cash in the amount set forth opposite such Member’s name on Schedule
1 attached hereto. In exchange for such capital contribution, each Member shall receive the
number of Units set forth opposite such Member’s name on Schedule 1. The Members may make
and the Company may accept additional capital contributions, as mutually agreed by the Company and
the Members.
2.2 Capital Accounts. Separate capital accounts shall be maintained by the Company for
each Member. The capital account of each Member shall be credited with the Member’s capital
contributions (at fair market value with respect to contributed property, net of any liabilities
assumed by the Company in connection with such contribution or to which such contributed property
is subject) and shall be appropriately adjusted to reflect each Member’s allocations of Net Profits
and Net Losses, the fair market value of property distributed (net of any liabilities assumed by
such Member or any liabilities to which such property is subject) to the Member and such other
adjustments as shall be required by Code Section 704 and the regulations promulgated thereunder.
2.3 Limited Liability. No Manager or Member shall be personally liable to satisfy any
judgment, decree, or order of a court for, or be personally liable to satisfy in any other manner,
any debt, obligation, or liability of the Company solely by reason of being a Manager or Member.
2.4 No Interest on or Right to Withdraw Capital Contributions. No interest shall be
paid by the Company on capital contributions or on the balance in any capital account and no Member
shall have the right to withdraw the Member’s capital contribution or to demand or receive a return
of the Member’s capital contribution.
2.5 Additional Units. Subsequent to the initial issuance of Units, additional Units
may be issued and sold by the Company to any Person, whether or not already a Member, upon such
terms and conditions as are determined by the Manager(s) (the “Additional Units”); provided
however, that no Additional Units shall be issued and sold unless such Additional Units shall have
first been offered to the Members pursuant to Section 2.7 below. Any Person purchasing
Additional Units shall become a Member of the Company for all purposes upon signing a counterpart
to this Agreement. The issuance and sale of Additional Units and the admission of the purchaser as
an additional Member shall not cause the dissolution of the Company.
2.6 Investment Representations and Acknowledgments. Each of the Members represents and
acknowledges to the Company, with respect to the issuance of Units to such Member, as follows:
(a) The Units are being purchased for the Member’s own account and for investment and not
with a view to or for resale in connection with any distribution or
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public offering of the Units within the meaning of the Securities Act of 1933, state
securities laws, and other applicable securities laws and rules (collectively the
“Securities Laws”).
(b) The Member has such knowledge and experience in financial and business matters that the
Member is capable of evaluating the merits and risks of the purchase of the Units.
(c) All documents, records, and books pertaining to the Company and the purchase of the Units
have been made and are available to the Member and representatives of the Member, and the Member
has had an opportunity to ask questions of and receive answers from all persons related to the
Company concerning the Company and the Units.
(d) Neither the Company nor any person acting on its behalf has offered or sold the Units by,
or used in connection with such offer or sale, any form of general solicitation or general
advertising, including without limitation, any handbills or any advertisement, article, notice, or
other communication published in any newspaper, magazine, or similar medium or broadcast over
television or radio, or any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising.
(e) No commission, discount, or remuneration (excluding any legal, accounting, and printing
fees) has been paid or given directly or indirectly in connection with the offer or sale of the
Units or for soliciting any prospective buyer.
(f) The Units have not been registered under any of the Securities Laws and cannot be resold
or otherwise disposed of and must be held indefinitely unless they are subsequently registered
under the Securities Laws or an exemption from registration is available.
(g) The exemption under Rule 144 under the Securities Act of 1933 for a person that directly,
or indirectly through one or more intermediaries, controls, or is controlled by, or is under common
control with, an issuer, and who has held for at least one year securities of an issuer concerning
which there is available specified public information, will not be available because the Company
does not contemplate making available such public information and it is not likely that a trading
market in the Units will develop sufficiently to satisfy the “broker’s transaction” requirement of
Rule 144.
(h) The exemption under Rule 144 for a person other than a person described in paragraph
(g) above who has held securities for at least two years will be available without regard to
whether there is available specified public information concerning the Company or whether a trading
market in the Units will develop sufficiently to satisfy the “broker’s transaction” requirement,
but no market now exists or is expected to develop for the resale of the Units.
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(i) The Company is under no obligation and does not intend to register the Units under
the Securities Laws or to effect compliance with any exemption from registration under the
Securities Laws in the future.
2.7 Pre-Emptive Rights.
(a) Before the Company may issue and sell Additional Units to any Person, including an
existing Member, the Company must first offer (the “Offer”) to sell such Additional Units to all of
the existing Members in accordance with this Section. The Offer must be bona fide, be in writing
and be an offer with respect to all of the Additional Units offered by the Company. The Offer must
identify and set forth the number of Additional Units subject to the Offer, the purchase price
thereof, which must be stated in United States dollars (the “Offer Price”), the terms of payment of
the Offer Price and the closing date, which shall not be earlier than thirty (30) days or later
than one hundred twenty (120) days after the date notice of the Offer is given to the Members
(collectively, the “Offer Terms”).
(b) Effective upon the date the notice of the Offer is given by the Company to the Members
(the “Notice Date”), each of the Members shall have the option to purchase, upon the Offer Terms,
the number of Additional Units subject to the Offer multiplied by a fraction in which the numerator
is the number of Units such Member owns and the denominator is the aggregate number of Units owned
by all the Members. In order to exercise such option, a Member must give notice of such exercise to
the Company within fifteen (15) days after the Notice Date.
(c) The closing of all purchases under this Section shall take place thirty (30) days after
the Notice Date or such other time as the parties to such closing agree. If any Member (or such
Members’ representative) fails to appear at the closing or appears and fails to purchase the
Additional Units which such Member is obligated to purchase, the closing shall be adjourned two
business days and at such adjourned closing such Member may purchase such Additional Units.
(d) If any Member does not exercise such Member’s option to purchase such Member’s
proportionate share of the Additional Units, or if any Member exercises such option but fails to
purchase such Member’s proportionate share of the Additional Units in accordance with Paragraph (c)
above, the Company may sell the Additional Units not purchased by such Member pursuant to this
Section to any Person, including any other Member, provided such sales shall occur not later than
one hundred eighty (180) days after the Notice Date and only in accordance with the Offer Terms,
except that the sales price may exceed the Offer Price.
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ARTICLE 3.
ALLOCATIONS AND DISTRIBUTIONS
ALLOCATIONS AND DISTRIBUTIONS
3.1 Allocation of Net Profits and Net Losses.
(a) All Net Profits and Net Losses shall be allocated among the Members as set forth in this
Section; provided, that federal income tax attributes of property contributed to the Company shall
be allocated among Members so as to take into account the variation between the federal income tax
basis of the property to the Company and its fair market value at the time of its contribution to
the Company utilizing any method selected by the Manager(s) that is authorized by Code Section
704(c) and the regulations promulgated thereunder.
(b) Except as provided in Section 3.1 (a), Net Profits shall be allocated at the end
of each tax year of the Company among Members as follows:
(i) First, to any Members having negative capital account balances, in proportion
to and to the extent of such negative balances;
(ii) Second, to the extent Net Losses were previously allocated under Section 3.1(c)(ii)
and were not offset by previous allocations of Net Profits under this Section 3.1(b)(ii),
Net Profits equal to the amount of such Net Losses shall be allocated in the manner such Net Losses
were allocated; and
(iii) The balance, if any, to Members in proportion to their respective ownership of
Units.
(c) Except as provided in Section 3.1 (a), Net Losses shall be allocated at the end of
each tax year of the Company among Members as follows:
(i) First, to the extent Net Profits were previously allocated under
Section 3.1(b)(iii) and were not offset by previous allocations of Net
Losses under this Section 3.1(c)(i), Net Losses equal to the amount
of such Net Profits shall be allocated in the manner such Net Profits were
allocated;
(ii) Second, to any Members having positive capital account balances, in proportion
to and to the extent of such positive balances; and
(iii) The balance, if any, to Members in proportion to their respective ownership of
Units.
3.2 Distributions.
(a) Subject to Section 3.3, distributions to Members shall be made in such
amounts and at such times as the Manager(s) shall determine and among the Members in the following
proportions:
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(i) First, to Members having positive capital account balances, in proportion to and
to the extent of such positive balances; and
(ii) The balance, if any, to Members in proportion to their respective ownership
of Units.
(b) For purposes of this Section, neither a reimbursement to a Manager or a Member for an
expenditure properly considered as a cost or expense of the Company, nor the payment by the Company
of any fee to a Manager or Member, nor the payment to a Manager or Member of any principal or
interest on any loan, shall be considered a distribution to a Member, and the Company may make any
such reimbursement, payment, or repayment prior to any distribution to Members under this Section.
(c) All distributions, upon dissolution or otherwise, shall be made solely from the Property
and no Member (even if the Member has a deficit balance in the Member’s capital account) or Manager
shall be personally liable for any such return. Any securities or other assets distributed to the
Members shall be valued at their fair market value as determined in good faith by the Liquidator.
3.3 Required Minimum Distributions.
(a) On or before April 1 of each calendar year, the Company shall make a per Unit
distribution in respect of the Company’s most recently ended tax year to Members of record on the
last day of such year in an amount, determined by the Manager(s), equal to the Required Minimum
Distribution, as defined below. The Required Minimum Distribution for each tax year shall be equal
to the highest federal, state and local income taxes payable per Unit by any Member in respect of
the Company’s net taxable income for such tax year (or by any direct or indirect owner of any
Member or beneficiary of a trust that is a Member who incurs income tax liability in respect of the
Company’s net taxable income).
(b) Any cash distribution which exceeds the amount of the Required Minimum Distribution for
any tax year shall not affect the determination of the Required Minimum Distribution for any
subsequent tax year. Notwithstanding any other provision of this Agreement, the Company shall be
under no obligation to make any Required Minimum Distribution if such distribution is then
prohibited under applicable law or any agreement to which the Company is a party.
(c) In recognition of the fact that some of the Members (or some of the direct or indirect
owners of a Member or beneficiaries of a trust that is a Member who incurs income tax liability in
respect of the Company’s net taxable income) may be required to make quarterly payments of
estimated taxes in respect of the Company’s net taxable income, the Company may, if the Manager(s)
so determines, make cash distributions of an estimate of the Required Minimum Distributions in
quarterly installments (payable on or before the first day of January, April, July and October) in
order to permit such persons to pay their quarterly estimated taxes.
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ARTICLE 4.
MANAGEMENT: RIGHTS, POWERS AND OBLIGATIONS OF THE MANAGERS
MANAGEMENT: RIGHTS, POWERS AND OBLIGATIONS OF THE MANAGERS
4.1 Management and Control in General.
(a) Subject to Sections 4.1(c) and 5.2(b), the business of the Company shall be
exercised by or under the direction of the Manager(s). No Member, acting solely in the capacity as
a member, is an agent of the Company or shall have any right to act on behalf of or to bind the
Company. Each Manager shall have all the rights, powers and obligations of a manager as provided in
the Act and as otherwise provided by law. Every Manager is an agent of the Company for the purpose
of its business and affairs, and the act of any Manager, including, but not limited to, the
execution in the name of the Company of any instrument for apparently carrying on in the usual way
the business or affairs of the Company, binds the Company, unless the Manager so acting has, in
fact, no authority to act for the Company in the particular matter and the person with whom he is
dealing has knowledge of the fact that the Manager has no such authority. An act of a Manager which
is not apparently for the carrying on in the usual way the business of the Company does not bind
the Company unless authorized in accordance with this Agreement.
(b) Notwithstanding anything to the contrary in this Agreement or the Act, the approval, vote,
or consent of the Members shall not be required, and the Manager(s) shall be authorized to approve,
each of the following matters: (i) a merger or consolidation of the Company; (ii) an amendment to
the Certificate; and (iii) the sale, exchange, lease or other transfer of all or substantially all
of the assets of the Company.
(c) Without the written consent of the holders of not less than 5/7 of the outstanding 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.
4.2 Number and Appointment of Manager(s); Removal.
(a)The initial number of Manager(s) of the Company shall be one and the initial Manager
of the Company shall be Xxxxxx X. Xxxx. Such number may be changed from time to time upon the
affirmative vote of Members holding a majority of the outstanding Units held by all Members. Each
Manager shall hold office until such Manager’s resignation, removal or death.
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(b) All the Managers or any individual Manager may be removed from office, without
assigning any cause, by the affirmative vote of Members holding a majority of the outstanding Units
held by all Members. In case of such removal, a new Manager may be elected at the same meeting.
Failure to elect a Manager to succeed any Manager removed shall be deemed to create a vacancy in
the Managers, unless the number of Managers is changed as provided in Section 4.2(a) above.
(c) A Manager may resign at any time by giving written notice to the Company.
(d) In the event of a vacancy in the position of
Manager by reason of an increase in the
number of Managers, resignation or removal, a new Manager shall be appointed by the affirmative
vote of the Members holding a majority of the outstanding Units held by all Members.
(e) A Manager shall not be required to be a Member, a resident of Mississippi, or a natural
person.
4.3 Employment of Others, Including Affiliates. The Manager(s) shall not be required
to devote full time to the affairs of the Company and shall devote such time to Company affairs as
they in their sole and unrestricted discretion deem necessary to manage and supervise the
operations and business of the Company. The Manager(s) shall have the right to appoint officers and
agents of the Company and establish their compensation and duties. Nothing contained in this
Agreement shall preclude the employment by the Company of any Manager or Member or any agent or
third party to operate and manage all or any portion of the Property or to provide any service
relating to the business of the Company, subject to the control of the Manager(s). The Company may
engage Affiliates of any Manager(s) or Member to render services to the Company, provided that any
such engagement shall be upon terms and conditions no less favorable to the Company than could be
obtained from an independent third party. Neither the Company nor any of the other Members shall
have, as a consequence of the relationship created hereby, any right in or to any income or profits
derived by a Manager or Member or an Affiliate of any of the Managers or Members from any business
arrangements with the Company which are consistent with this Section.
4.4 Expenses. The Company shall pay all costs and expenses arising from or relating to
the organization of the Company, the acquisition of Property and the commencement and continuation
of Company operations. The Company shall not be required to reimburse the Manager(s) and their
Affiliates for overhead expenses incurred by them in providing services to the Company, but shall
be required to reimburse such parties for reasonable out-of-pocket expenses so incurred by them.
4.5 Title to Property. Title to Property shall be taken in the name of the
Company or in the name or names of a nominee or nominees designated by the Manager(s).
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4.6 Liability of Manager(s). No Manager or any Affiliate of a Manager, or their
respective officers, shareholders, controlling persons, directors, agents and employees, shall be
liable, responsible or accountable in damages or otherwise to the Company or to any of the Members,
their successors or permitted assigns, for any act or failure to act in connection with the affairs
of the Company, except liability for: (i) the amount of a financial benefit received by the Manager
to which the Manager is not entitled; (ii) an intentional infliction of harm on the Company or the
Members; (iii) an intentional violation of criminal law; or (iv) a violation of Section
00-00-000 of the Act.
4.7 Indemnification. The Company shall, to the fullest extent permitted by law,
indemnify or agree to indemnify any 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, whether civil, criminal,
administrative or investigative, and whether or not such Person is by or in the right of the
Company, by reason of the fact that such Person is or was a Manager, officer, employee or agent of
the Company or any Manager, or is or was serving at the request of the Company as a manager,
director, trustee, officer, employee or agent of another limited liability company, corporation,
partnership, joint venture, trust, or other enterprise or employee benefit plan, against expenses
(including attorney fees), judgments, penalties, fines and amounts paid in settlement incurred in
connection with any such action, suit or proceeding.
4.8 Tax Matters Partner. The JMBS Casino Trust f/b/o Xxxxxx X. Xxxx shall be the “tax
matters partner” for purposes of the Code and shall have the authority to exercise all functions
provided for in the Act, or in regulations promulgated thereunder by Treasury, including, to the
extent permitted by such regulations, the authority to delegate the function of tax matters partner
to any other person. The tax matters partner shall be reimbursed for all reasonable expenses
incurred as a result of its duties as tax matters partner. In the event the tax matters partner
resigns as tax matters partner or ceases to hold any Units, such tax matters partner shall
thereupon cease to be the “tax matters partner” and such Member as appointed by the Manager(s)
shall become the tax matters partner.
ARTICLE 5.
MEETINGS; VOTING AND OFFICERS
MEETINGS; VOTING AND OFFICERS
5.1 Meetings of Members.
(a) Notice of Meetings. Meetings of Members may be called by (i) the
Manager(s) or (ii) the Members holding a majority of the outstanding Units held by all Members.
Written notice of any meeting, stating the time, place and purpose of the meeting, shall be given
either by personal delivery or by mail not less than seven (7) nor more than sixty (60) days before
the date of the meeting to each Member of record. If mailed, such notice shall be addressed to the
Member at its address as it appears in the Unit Journal. No business other than that specified in
the notice shall be considered at any meeting.
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(b) Quorum. The Members holding a majority of the outstanding Units held by all of the
Members, present in person or represented by proxy, shall constitute a quorum for transaction of
business at any meeting of the Members. Members holding a majority of the outstanding Voting Units
held by all of the Members at such meeting (whether or not a quorum is present) may adjourn such
meeting from time to time. Notice of adjournment of a meeting need not be given if the time and
place to which it is adjourned are fixed and announced at such meeting. At the adjourned meeting
the Company may transact any business which might have been transacted at the original meeting.
(c) Actions. The affirmative vote of Members holding not less than a majority of the
outstanding Voting Units held by all Members shall be necessary for the authorization or taking of
any action voted upon by the Members, unless the vote of a greater or lesser proportion or number
is otherwise required by the Act, by the Certificate or by this Agreement.
(d) Action by Members Without Meeting. Any action required or permitted to be taken at
a meeting of the Members may be taken without a meeting if a consent in writing, setting forth the
actions so taken, shall be signed by the Members holding not less than the minimum number of Units
that would be necessary to authorize or take such action at a meeting at which all of the Members
were present and voting. Prompt notice of the taking of the action without a meeting by less than a
unanimous consent shall be given to all Members, but the failure to provide such notice shall not
affect the validity of the action.
(e) Telephonic Meetings. The Members may participate in and act at any meeting of the
Members through the use of a conference telephone or other communications equipment by means of
which all persons participating in the meeting can hear each other. Participation in such meeting
shall constitute attendance and presence in person at the meeting of the Persons so participating.
(f) Transfers of Voting Rights and Proxies. The Members and the Company each agree not
to enter into any agreement or understanding, oral or written, including, without limitation,
voting agreements, member agreements, or proxies, pursuant to which any person other than the owner
of Units acquires the ability to exercise, in whole or in part, any voting or other rights
associated with such Units. Notwithstanding the foregoing, any Member may grant a revocable proxy
to vote such Member’s Units with a duration of not more than thirty (30) days.
(g) Place of Meeting. All meetings of Members shall be held at the place stated in the
notice of meeting, which may be within or without Mississippi.
(h) Waiver of Notice. When any notice is required to be given to any Member, a
waiver thereof in writing executed by the Member, whether before, at or after the time stated
therein, shall be equivalent to the giving of such notice. The attendance of any Member at any such
meeting without protesting, prior to or at the
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commencement of the meeting, the lack of proper notice shall be deemed to be a waiver
by such Member of notice of such meeting.
5.2 Meetings of Managers.
(a) Notice of Meetings. Meetings of Manager(s) may be called by any Manager.
Written notice of any meeting, stating the time and place of the meeting, shall be given either by
personal delivery or by mail not less than two (2) days nor more than thirty (30) days before the
date of the meeting to each Manager. If mailed, such notice shall be sent to the Manager(s) in
accordance with Section 9.2. Prompt notice of the taking of the action without a meeting by
less than a unanimous consent shall be given to all Managers, but the failure to provide such
notice shall not affect the validity of the action.
(b) Quorum; Actions. A majority of the number of Managers then fixed by the Members
shall constitute a quorum for transaction of business at any meeting of the Managers. The act of a
majority of the total number of Managers is the act of the Managers.
(c) Action by Managers Without Meeting. Any action required or permitted to be taken
at a meeting of the Managers may be taken without a meeting if a consent in writing, setting forth
the actions so taken, shall be signed by a majority of the number of Managers then fixed by the
Members.
(d) Telephonic Meetings. The Managers may participate in and act at any meeting of the
Managers through the use of a conference telephone or other communications equipment by means of
which all persons participating in the meeting can hear each other. Participation in such meeting
shall constitute attendance and presence in person at the meeting of the Persons so participating.
(e) Place of Meeting. All meetings of Managers shall be held at the place stated in
the notice of meeting, which may be within or without Mississippi.
(f) Waiver of Notice. When any notice is required to be given to any Manager, a waiver
thereof in writing executed by the Manager, whether before, at or after the time stated therein,
shall be equivalent to the giving of such notice. The attendance of any Manager at any such meeting
without protesting, prior to or at the commencement of the meeting, the lack of proper notice shall
be deemed to be a waiver by such Manager of notice of such meeting.
5.3 Record Date and Closing Unit Transfer Books.
(a) Record Date. For any lawful purpose, including without limitation the
determination of the Members who are entitled to receive notice of or to vote at any meeting of
Members or to receive payment of any distribution, the Manager(s) may fix a record date which shall
not be a date earlier than the date on which the record date is fixed and shall not be more than
sixty (60) days preceding the date of the meeting of Members or the date fixed for the payment of
the distribution, as the case may be.
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When a determination of Members entitled to vote at any meeting of Members has been made as
provided herein, such determination shall apply to any adjournment thereof.
(b) Closing Unit Transfer Books. The Manager(s) may close the Company’s Unit Journal
(as defined below) against Transfers of Units during the whole or any part of the period between
the record date and the date fixed for the payment of any distribution.
(c) Adjournments. When a determination of Members entitled to vote at any meeting of
Members has been made as provided in this Section, such determination shall apply to any
adjournment thereof.
5.4 Officers.
(a) Election. The Manager(s) may elect a president, one or more vice
presidents, a treasurer, a secretary and such other officers and assistant officers as may be
deemed necessary. Any two or more of such offices may be held by the same person. Election of an
officer shall not of itself create contract rights.
(b) Term. The officers of the Company shall hold office until their successors are
elected and qualified, or for such shorter period as the Manager(s) may provide, but any officer
may be removed at any time, with or without cause, by the Manager(s) without prejudice to the
contract rights, if any, of the officer so removed. The Manager(s) may fill any vacancy in any
office at any time.
(c) President. The president shall be the chief executive officer of the Company and
shall exercise supervision over the business of the Company and over its several officers subject
to at all times the control of the Manager(s). The president shall have such other powers and
duties as the Manager(s) may from time to time assign to the president.
(d) Vice President. The vice president or vice presidents shall perform such duties as
may from time to time be assigned to it or them by the Manager(s) or the president. At the request
of the president or in case of its absence or disability, the vice president, or, if more than one,
one of the vice presidents in the order of their seniority, shall perform all the duties of the
president and when so acting shall have all of the authority of the president.
(e) Secretary. The secretary shall attend all meetings of the Members and shall keep
or cause to be kept a true and complete record of the proceedings of those meetings and shall
perform whatever additional duties the Manager(s) or the president may from time to time prescribe.
(f) Treasurer. The treasurer shall have custody of all funds and securities of the
Company. The treasurer shall keep full and accurate accounts of receipts and disbursements and
shall deposit all Company monies and other valuable effects in the name and to the credit of the
Company in a depository or depositories designated by the Manager(s). The treasurer shall disburse
the funds of the Company
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and shall render to the Manager(s), whenever they may require it, an account of its transactions
as treasurer and of the financial condition of the Company. If requested by the Manager(s), the
treasurer shall furnish a bond satisfactory to the Manager(s).
(g) Assistant Officers. Assistant and subordinate officers shall
perform such duties as the Manager(s) or the president may prescribe.
(h) Absence of Officers. In the absence of any officer of the Company or for any
other reason the Manager(s) may deem sufficient, the Manager(s) may delegate any or all of the
powers or duties of such officer to any other officer or to any Manager.
(i) Direction and Control. All of the officers of the Company shall at all times
be and remain subject to the direction and control of the Manager(s).
ARTICLE 6.
TRANSFERS OF UNITS; ADMISSION OF NEW MEMBERS
TRANSFERS OF UNITS; ADMISSION OF NEW MEMBERS
6.1 General; Withdrawal.
(a) No Transfer of Units shall be made by any Member except Transfers which are permitted by
and made in compliance with Sections 6.1 and 6.2 and
either Section 6.3, 6.4, 6.5, or 6.6.
No Units shall be Transferred: (i) without compliance with any and all state and federal securities
laws and regulations; and (ii) unless the Transferee otherwise complies with this Agreement. Any
attempted Transfer of Units in violation of this Article shall be null, void and of no effect and
shall confer no rights on the Transferee as against the Company or any Member. The Transferor shall
not retain any Membership Rights with respect to the Transferred Units, whether or not the
Transferee is admitted as a Member. A Transfer of Units shall include all of the Transferor’s
rights (including Membership Rights) with respect to the Transferred Units.
(b) The effective date of a Transfer made in accordance with this Article shall be the date
the conditions set forth in this Article are satisfied. The Company shall be entitled to treat the
Transferor as the absolute owner of the Transferred Units in all respects and shall incur no
liability for distributions or allocations made in good faith to the Transferor until such
conditions are satisfied.
(c) The costs incurred by the Company associated with the Transfer of Units and the admission
(if any) of a Member contemplated by this Article (including reasonable attorneys’ fees) shall be
borne by the Transferee.
(d) No Transfer of Units shall be effective unless approved by the Commission, to the
extent required by the Gaming Regulations.
6.2 Rights of Transferee; Admission of Transferee Members. Each Transferor shall
be deemed to give each Transferee the right to become a Member and each Transferee shall be
admitted as a Member without the consent of the Manager(s) or the other Members. The Transferee
shall have all of the Membership Rights of the
- 13 -
Transferor and shall be subject to all of the restrictions and liabilities of the Transferor with
respect to the Transferred Units; provided however, no Transferee shall be obligated for
liabilities that cannot be ascertained from this Agreement and are otherwise unknown by the
Transferee at the time the Transferee becomes a Member. In addition, in order for the Transferee to
be admitted as a Member, the following conditions must be satisfied: (i) the Transfer shall be made
by a written instrument, signed by the Transferor and accepted in writing by the Transferee, and a
duplicate original of such instrument shall be delivered to the Company; and (ii) the Transferee
shall execute and deliver to the Company a written instrument, in form reasonably satisfactory to
the Company, pursuant to which the Transferee agrees to be bound by this Agreement.
6.3 Certain Permitted Transfers. The following Transfers of Units are permitted:
(a) A Transfer to which the holders of all of the outstanding Units consent in writing.
(b) A Transfer upon the death of a Member who is an individual under the terms of the Member’s
will or the laws of succession if the Member dies intestate.
(c) A Transfer from a trust to the beneficiary of the trust in accordance with the terms of
the trust.
6.4 Contracts to Sell Units.
(a) A Member (the “Seller”) who enters into a contract to sell any Units (the “Contract”) may
sell such Units upon compliance with this Section.
(b) The Contract must be bona fide, be conditioned only on compliance with this Agreement, be
in writing, and be the entire agreement of the parties thereto. The Contract must identify and set
forth the Units subject to the Contract (the “Contract Units”), the purchase price for such
Contract Units, which must be stated in United States dollars (the “Contract Price”), and the terms
of payment of the Contract Price and the closing date, which shall be not earlier than ninety (90)
days nor later than one hundred twenty (120) days after the date notice of the Contract is given to
the Company and to all Members (collectively the “Contract Terms”), and the name, address, and
telephone number of the purchaser and if the purchaser is not to be the beneficial owner of the
Contract Units, the name, address, and telephone number of such beneficial owner (collectively the
“Purchaser”). The Contract must be executed by and be binding on the Seller and Purchaser subject
only to compliance with this Agreement.
(c) Immediately upon execution of the Contract, the Seller shall give notice of the
Contract to the Company and to all Members. Such notice must contain a copy of the Contract.
- 14 -
(d) Effective upon the date such notice is given (the “Effective Date”), the Company
shall have the option to purchase the Contract Units upon the Contract Terms, except that the
exercise price shall be the lesser of the Contract Price or the Book
Value. The Manager(s) shall
determine whether and as to how many of the Contract Units the Company shall exercise such option.
In order to exercise such option, the Company must give notice of such exercise, stating the number
of Contract Units as to which the Company is exercising such option and the number of Contract
Units as to which the Company is not exercising such option, if any (the “Remaining Contract
Units”), to all of the Members within thirty (30) days after the Effective Date. If the Company
exercises such option with respect to less than all of the Contract Units, such exercise shall be
deemed to be contingent upon the exercise, under Paragraph (e) below, of options to purchase all of
the Remaining Contract Units.
(e) If the Company does not exercise such option or exercises such option with respect to
less than all of the Contract Units, effective thirty-one (31) days after the Effective Date each
of the Members except the Seller (the “Option Member(s)”) shall have the option to purchase, upon
the Contract Terms except that the exercise price shall be the lesser of the Contract Price or the
Book Value thereof, the number of Remaining Contract Units multiplied by a fraction in which the
numerator is the number of Units such Option Member owns and the denominator is the aggregate
number of Units owned by all Option Members. In order to exercise such option, an Option Member
must give notice of such exercise to the Seller and all Members within sixty-one (61) days after
the Effective Date. If no Option Members exercise such option, the Seller shall proceed in
accordance with Paragraph (g) below. If less than all Option Members exercise such option: (i)
each of the Option Members exercising such option (collectively the “Exercising Members”) shall be
obligated to purchase the number of Remaining Contract Units multiplied by a fraction in which the
numerator is the number of Units such Exercising Member owns and the denominator is the aggregate
number of Units owned by all Option Members; and (ii) in addition, any Exercising Member who, in
its notice of exercise, offers to purchase additional Remaining Contract Units (which become
available if less than all Option Members exercise such option), shall be obligated to purchase the
number of Remaining Contract Units not obligated to be purchased under clause (i) above multiplied
by a fraction in which the numerator is the number of Units such Exercising Member owns and the
denominator is the aggregate number of Units owned by all Exercising Members making an offer
described in this clause (ii). If no Exercising Members so make such an offer, the Seller shall
proceed in accordance with Paragraph (g) below.
(f) The closing of all purchases under this Section shall take place on the later of (i)
ninety (90) days after the Effective Date or (ii) the closing date, if any, under the Contract
Terms. If any purchaser (or its representative) fails to appear at the closing or appears and
fails to purchase the Contract Units which such purchaser is obligated to purchase, the closing
shall be adjourned two business days and at such adjourned closing the Company or any Exercising
Member may purchase such Contract
- 15 -
Units and they may allocate such Contract Units between them in any manner to which they
may agree.
(g) If the Company and the Members do not exercise their respective options to purchase
all of the Contract Units, or if they exercise such options but fail to purchase all of the
Contract Units in accordance with Paragraph (f) above, the Seller shall sell the Contract Units
only to the Purchaser and only in accordance with the Contract Terms, but not later than one
hundred eighty (180) days after the Effective Date. If the Purchaser does not purchase all of the
Contract Units from the Seller within such period, or if they make or wish to make any change,
whether or not such change is material, in the Contract Terms, the Seller’s right to sell to the
Purchaser under this Section shall terminate, and the Seller shall not sell the Contract Units
without again complying with this Section.
(h) The parties acknowledge that the value of the Units is enhanced by holding a
controlling interest in the Company and controlling the Company’s affairs. Therefore, in the best
interest of all Members, the parties agree that if after (but not prior to) the sale of Units
provided in any Contract the Purchaser and its Affiliates would hold directly or indirectly a
majority of the outstanding Voting Units, and if the options to purchase all of the Contract Units
are not exercised in accordance with this Section, the Contract shall be deemed to include an offer
by the Purchaser to purchase all Units held by all Members on the same terms as the Contract Terms,
including all consideration paid under restrictive covenants and that portion of the consideration
paid under consulting or employment agreements, leases, or similar arrangements which exceeds the
reasonable value of the services or property furnished. For purposes of this paragraph (h), a
Person shall be deemed to hold all Units which such Person may at any time subscribe to or acquire
under all securities such Person holds.
6.5 Disassociation.
(a) If an event of disassociation occurs with respect to any Member as provided in Section
00-00-000 of the Act, the disassociating Member shall cease to be a Member, and to the extent the
disassociating Member continues to hold Units such Person shall be treated for all purposes as an
unadmitted transferee, holding Financial Rights but no Governance Rights, with respect to such
Units. The disassociating Member shall have no right to receive the fair value of such Units as a
result of the event of disassociation.
(b) No Member has the power to withdraw by voluntary act from the Company.
6.6 Purchase of Units Upon Finding of Unsuitability.
(a) If at any time the Commission finds that any Member is unsuitable to own Units under
the Gaming Regulations (the “Finding”), such Member shall sell all of its Units in accordance with
this Section 6.6 and the Gaming Regulations. Beginning on the date when the Commission
serves notice upon the Company of a Finding, the
- 16 -
unsuitable Member shall not receive any share of the Net Profits or Net Losses in respect of such
Member’s Units, exercise, directly or through any trustee or nominee, any voting right conferred
by such Units, or receive any remuneration in any form from the Company, for services rendered or
otherwise.
(b) The purchase price per Unit for such Units shall be the greater of an amount equal to the
Book Value thereof or the Capitalized Value thereof.
(c) The purchase and sale of all Units under this Section shall take place not less than ten
(10) days after the Finding. The Company shall at its option (i) pay the purchase price in full by
cash or certified or cashier’s check, or (ii) pay not less than one-fifth of the purchase price in
cash or by certified or cashier’s check and the balance by delivery of its promissory note in the
form of Exhibit B attached hereto. If the Company delivers a promissory note to such Member, the
Company shall grant to such Member a perfected security interest in the Units sold to the Company
by such Member.
6.7 Priority of Procedures
(a) If any permitted Transfer with respect to any Units is pending under Section 6.3
(Certain Permitted Transfers), Section 6.4 (after notice of a Contract is given), or
Section 6.6 (after a Finding ), and if before closing any event occurs which would or could
cause another permitted Transfer with respect to the same Units otherwise to become pending, then
any procedures required or permitted to effect the “junior” permitted Transfer, as defined in
Section 6.7(b), shall be stayed until after the closing of the “senior” Permitted Transfer,
at which time such procedures, to the extent not rendered moot by such closing, shall continue as
if such stay had not been effective.
(b) For purposes of this Section: the following Sections shall have the following order of
priority, ranked from the most “senior” to the most “junior”: Section 6.6 (Finding),
Section 6.3 (Certain Permitted Transfers), and Section 6.4 (Contracts).
ARTICLE 7.
REPORTS AND TAX MATTERS
REPORTS AND TAX MATTERS
7.1 Books, Records and Reports.
(a) The Company shall keep at its principal place of business the following: (i) a
current list of the full name and last known street address of each Member and Manager; (ii) a copy
of the Certificate and all certificates of amendment and restatement thereof, together with
executed copies of any powers of attorney pursuant to which any Certificate has been executed;
(iii) a copy of this Agreement; and (iv) unless contained in the Certificate or this Agreement, a
writing setting out: (A) the amount of cash and a description and statement of the agreed value of
the other property or services contributed by each Member and which each Member has agreed to
contribute; (B) 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; and (C) any events upon the happening of which the
Company is to be dissolved and its affairs wound up. The records specified under this section are
subject to inspection and copying at the
- 17 -
reasonable request, and at the expense, of any Member or Manager during ordinary
business hours.
(b) The Manager(s) shall cause the Company to prepare and file income tax returns with the
appropriate authorities. Within ninety (90) days after the close of each fiscal year of the
Company, the Manager(s) shall send to each person who was a Member at
any time during such fiscal
year such information as will be sufficient to prepare documents which may be required to be filed
by such Members under applicable federal, state and local income tax laws.
(c) Within ninety (90) days after the close of the Company’s fiscal year, the Company shall
use its best efforts to cause each Member to receive financial statements of the Company for the
fiscal year then ended (including a balance sheet and statement of income).
7.2 Record of Unit Ownership. The Manager(s) shall maintain a journal of ownership of
all of the outstanding Units containing the name and address of each Member, the number of Units
held and whether each Member is a Member (the “Unit Journal”). The Unit Journal shall be conclusive
evidence of the ownership of the Units and status as a Member absent manifest error.
7.3 Section 754 Election. In the event of a distribution of property made in the
manner provided in Code Section 734, or in the event of a Transfer of any Unit permitted by this
Agreement made in the manner provided in Code Section 743, the Company may, but shall not be
required to, file an election under Code Section 754 in accordance with the procedures set forth in
the regulations promulgated thereunder.
ARTICLE 8.
DISSOLUTION AND TERMINATION
DISSOLUTION AND TERMINATION
8.1 Dissolution of the Company. The Company shall be dissolved and its affairs
wound up upon the earlier occurrence of any of the following events:
(a) the written agreement of Members holding a majority of the Units held by all the Members;
or
(b) the written consent of a majority of the Manager(s); or
(c) the sale of all or substantially all of the Property or other conversion of all or
substantially all of the Property to cash; or
(d) Upon the entry of a decree of judicial dissolution under Section 00-00-000 of the
Act.
The Company shall not be dissolved upon an event of dissociation of a Member as provided in
Section 00-00-000 of the Act.
- 18 -
8.2 Liquidation and Winding Up.
(a) Upon dissolution of the Company, the Manager(s), shall serve as liquidator of the Company
(the “Liquidator”). The Liquidator shall, with reasonable speed, wind up the affairs of the Company
and liquidate the Property. The Liquidator shall have unlimited discretion to determine the time,
manner and terms of any sale of Property having due regard to the activity and condition of the
relevant market and general financial and economic conditions and shall be authorized to continue
the business of the Company in order to maximize its value as a going concern for eventual sale.
(b) Upon completion of the winding up of the affairs and business of the Company, the assets
of the Company shall be distributed by the Liquidator in the following manner and order of
priority:
(i) First, such assets shall be applied to the payment of debts and liabilities of the
Company (including any loans from a Manager or Member to the Company) and the payment of expenses
of the winding up of the affairs and business of the Company;
(ii) Second, such assets shall be applied to the setting up of any reserves (to be held
by the Liquidator) which the Liquidator may deem necessary or appropriate for any contingent or
unforeseen liabilities or obligations of the Company; and
(iii) Finally, the remainder, if any, of such assets shall be distributed to the
Members in accordance with the provisions of Article 3.
(c) If any Member shall be indebted to the Company, then until payment of such
indebtedness by such Member, the Liquidator shall retain such Member’s distributive share of
Property and apply the same to the payment of such indebtedness.
(d) The Liquidator shall comply with all requirements of the Act and other applicable law
pertaining to the dissolution, winding up and liquidation of a limited liability company.
ARTICLE 9.
MISCELLANEOUS PROVISIONS
MISCELLANEOUS PROVISIONS
9.1 Definitions. As used in this Agreement, the following terms shall each have
the meaning set forth in this Article (unless the context otherwise requires).
“Act” shall mean Chapter 79 of Title 29 of the Mississippi Code of 1972, as amended, as now in
effect or as hereafter amended or revised, and any references to sections of the Act shall include
any successor provisions of similar tenor or effect.
- 19 -
“Affiliates” of a Person shall mean any Person directly or indirectly controlling,
controlled by or under common control with such Person.
“Agreement” shall mean this Agreement, as the same may be amended or supplemented from time
to time in accordance with the provisions hereof.
“Book Value” of a Member’s Units shall mean the amount that would be distributed to such
Member in accordance with Section 8.2(b)(iii) if, as of the Valuation Date, the Company
were dissolved and the Property were liquidated at its book value as reflected on the balance sheet
of the Company, reduced by any distribution declared and distributed with respect to such Units
after the Valuation Date and prior to the closing of the purchase and sale of such Units, or
increased by any distribution declared with respect to such Units before the Valuation Date and
recorded as a liability in the Company’s balance sheet, if the record date for such distribution is
after the sale of such Units. Such balance sheet shall have been prepared in accordance with
generally accepted accounting principles applied on a basis consistent with that of the preceding
year.
“Capitalized Value” of a Member’s Units shall mean the amount that would be distributed to
such Member in accordance with Section 8.2(b)(iii) if, as of the Valuation Date, the
Company were dissolved and the Property were liquidated and the Company’s liabilities paid in full
for an amount equal to five times the weighted average EBIDTA per Unit of the Company for the three
(3) years ended the Valuation Date, as shown on the Company’s statements of profit and loss for
such years. The weighted average adjusted EBITDA per Unit for such period shall be calculated by
multiplying the most recent year’s adjusted EBITDA before tax per Unit by three, the second most
recent year’s adjusted EBITDA before tax per Unit by two, and the third most recent year’s adjusted
EBITDA before tax per Unit by one, then by adding such products together, and then by dividing the
total sum by six. The adjusted EBITDA per Unit for each year shall be the EBITDA of the Company
divided by the average number of Units issued and outstanding during the year. Such statements of
profit and loss shall have been prepared in accordance with generally accepted accounting
principles applied on a basis consistent with that of the preceding year. If the Company has not
then had three fiscal years of operations, the period from the date hereof through the Valuation
Date shall be used in lieu of the three years ended the Valuation Date, and the EBITDA for such
period shall not be weighted and shall be annualized.
“Code” shall mean the Internal Revenue Code of 1986, as now in effect or as hereafter amended.
“Commission” shall mean the Mississippi Gaming Commission.
“EBITDA” shall mean earnings before interest, taxes, depreciation, and amortization.
“Event” shall mean (i) the “Effective Date” with respect to Contracts to sell Units pursuant
to Section 6.4, or (ii) the date of a Finding under
Section 6.6.
- 20 -
“Family Members” shall mean an individual’s spouse, lineal descendants, spouses of lineal
descendants, parents of spouse, brothers and sisters of spouse, or lineal descendants (and spouses
of such lineal descendants) of such brothers and sisters, or any trust for the benefit of such
persons. The Family Members of a trust that is a Member shall refer to the Family Members of the
beneficiaries of the trust.
“Financial Rights” shall mean those rights associated with a Unit to share in the Net Profits
and Net Losses and distributions with respect to such Unit, and the right to assign such rights,
in accordance with the terms of this Agreement, the Certificate, and the Act.
“Gaming Regulations” shall mean all statutes, laws, rules, and regulations applicable to
gaming in the State of Mississippi.
“Governance Rights” shall mean all rights associated with a Unit other than Financial Rights,
including, without limitation, the right to vote, receive notices and attend meetings of Members,
and the right to assign such rights to a Transferee.
“Member” shall mean each Person who holds any Units.
“Membership Rights” shall mean Financial Rights and Governance Rights.
“Net Profits” and “Net Losses” shall mean (i) the income or loss, as the case may be, of the
Company for federal income tax purposes for a tax year as determined in accordance with Code
Section 703(a) (for this purpose, all items of income, gain, loss or deduction required to be
separately stated pursuant to Code Section 703(a)(1) shall be included in Net Profits and Net
Losses), plus (ii) any tax-exempt income received by the
Company, less (iii) any expenditures of the
Company described in Code Section 705(a)(2)(B) (including any expenditures treated as being
described in Section 705(a)(2)(B) pursuant to the regulations promulgated under Code Section
704(b)).
“Person” shall mean and include an individual, corporation, partnership, association, limited
liability company, trust, estate, or other entity.
“Property” shall mean, at any time, all property, whether real or personal, interests, assets
or rights owned or held by or on behalf of the Company at such time.
“Transfer” shall mean any sale, assignment, transfer, conveyance, pledge, encumbrance, grant
or other disposition, direct or indirect, voluntary, involuntary, or by operation of law, and with
or without consideration, by a Member.
“Transferee” shall mean any Person to whom a Transfer of Units is made.
“Transferor”shall mean any Member who makes a Transfer of Units.
“Units” shall mean units of ownership interest in the Company into which the Members’
ownership interests in the Company are divided. The initial Units are set
- 21 -
forth opposite each Member’s name on Schedule 1, and thereafter the Units held by a
Member or a Member shall be reflected in the Unit Journal.
“Valuation Date” shall mean the end of the Company’s fiscal year coinciding with or preceding
the date of the Event. If the Company has not then had any fiscal year end, the Valuation Date
shall be the end of the calendar month coinciding with or preceding the date of the Event.
“Yung Siblings” shall mean Xxxxxxx X. Xxxx, XX, Xxxxxx X. Xxxx, Xxxxx X. Naught, Xxxxxx X.
Xxxx, Xxxxxxxx X. Xxxx, Xxxxxxxx X. Xxxx, and Xxxxx X. Xxxx.
9.2 Notices. All notices or other communications required or permitted to be given
pursuant to this Agreement shall be in writing and shall be considered as properly given and
received on date of delivery if delivered personally or by facsimile, or on the second day after
deposit in the United States mail if mailed by prepaid first-class registered or certified mail,
addressed to such Member or Manager at such Member’s or Manager’s address in the records of the
Company.
9.3 Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Mississippi.
9.4 Successors and Assigns. This Agreement and all the terms and provisions hereof
shall be binding upon and shall inure to the benefit of the Members and their respective heirs,
executors, administrators, successors and permitted assigns. Any person acquiring or claiming an
interest in the Company, in any manner whatsoever, shall be subject to and bound by all the terms,
conditions and obligations of this Agreement to which its predecessor in interest was subject or
bound, without regard to whether such person has executed this Agreement or a counterpart hereof or
any other document contemplated hereby. No person shall have any rights or obligations relating to
the Company greater than those set forth in this Agreement, and no person shall acquire an interest
in the Company or become a Member except as permitted by the terms of this Agreement.
9.5 Counterparts. This Agreement may be executed in any number of identical
counterparts, each of which, for all purposes, shall be deemed an original, and all of which
constitute, collectively, one and the same Agreement. In addition, this Agreement may contain more
than one counterpart signature page and may be executed by the affixing of the signature of each of
the Members to one of such counterpart signature pages, and all such counterpart signature pages
shall be read as one and shall have the same force and effect as though all the signers had signed
the same signature page.
9.6 Additional Assurances. Upon the request of the Company, each Member agrees to
perform all further acts and execute, acknowledge and deliver any documents which the Company deems
reasonably necessary to effectuate the provisions of this Agreement.
- 22 -
9.7
Entire Agreement; Amendment of Agreement. This Agreement constitutes the
entire understanding of the parties hereto with respect to the subject matter hereof and
supersedes any and all prior negotiations, understandings and agreements in regard hereto.
This Agreement may be amended only by a writing signed by all of the parties hereto and by
not less than 5/7 of the then living Yung Siblings.
9.8 Partition. Each of the parties hereto irrevocably waives during the term of the
Company any right that such party may have to maintain any action for partition with respect to the
Property.
9.9 No Waiver. Failure or delay of any party in exercising any right or remedy under
this Agreement, or any other agreement between the parties, or otherwise, will not operate as a
waiver thereof. The express waiver by any party of a breach of any provision of this Agreement by
any other party shall not operate or be construed as a waiver of any subsequent breach by such
party. No waiver will be effective unless and until it is in written form and signed by the waiving
party.
9.10 Gender and Number. Wherever from the context it appears appropriate, each term
stated in either the singular or plural shall include the singular and plural, and pronouns stated
in either the masculine, the feminine or the neuter gender shall include the masculine, feminine
and neuter.
9.11 Headings. The captions in this Agreement are inserted for convenience of
reference only and shall not affect the construction of this Agreement. References in this
Agreement to any Article, Section, Paragraph, Subparagraph or Schedule are to the same contained in
this Agreement.
9.12 Validity and Severability. The invalidity, illegality or unenforceability of any
provision of this Agreement or the application thereof to any person or circumstance, to any
extent, for any reason, shall not affect the validity, legality, or enforceability of the remainder
of such provision, or any other provision hereof or the application of any provision to any other
person or circumstance, and such provision under this Agreement shall be reformed to the extent
necessary to effectuate the foregoing, it being intended that the rights and obligations of the
parties hereto be enforceable to the fullest extent permitted by law.
9.13 No Third Party Rights. This Agreement and the covenants and agreements contained
herein are solely for the benefit of the parties hereto. No other person shall be entitled to
enforce or make any claims, or have any right pursuant to the provisions of this Agreement.
- 23 -
The undersigned have signed this Agreement as of the date set forth above.
| JMBS CASINO LLC | THE JMBS CASINO TRUST | |||||||
| f/b/o Xxxxxxx X. Xxxx, XX | ||||||||
By:
|
/s/ Xxxxxx X. Xxxx | By: | /s/ Xxxxxx X. Xxxx | |||||
| Xxxxxx X. Xxxx, Manager | Xxxxxx X.Xxxx, Trustee | |||||||
| THE JMBS CASINO TRUST | THE JMBS CASINO TRUST | |||||||
| f/b/o Xxxxxx X. Xxxx | f/b/o Xxxxx X. Xxxxxx | |||||||
By:
|
/s/ Xxxxxx X. Xxxx | By: | /s/ Xxxxxx X. Xxxx | |||||
| Xxxxxx X. Xxxx, Trustee | Xxxxxx X. Xxxx, Trustee | |||||||
| THE JMBS CASINO TRUST | THE JMBS CASINO TRUST | |||||||
| f/b/o Xxxxxx X. Xxxx | f/b/o Xxxxxxxx X. Xxxx | |||||||
By:
|
/s/ Xxxxxx X. Xxxx | By: | /s/ Xxxxxx X. Xxxx | |||||
| Xxxxxx X. Xxxx, Trustee | Xxxxxx X. Xxxx, Trustee | |||||||
| THE JMBS CASINO TRUST | THE JMBS CASINO TRUST | |||||||
| f/b/o Xxxxxxxx X. Xxxx | f/b/o Xxxxx X. Xxxx | |||||||
By:
|
/s/ Xxxxxx X. Xxxx | By: | /s/ Xxxxxx X. Xxxx | |||||
| Xxxxxx X. Xxxx, Trustee | Xxxxxx X. Xxxx, Trustee | |||||||
- 24 -
SCHEDULE 1
SCHEDULE OF INITIAL MEMBERS, CAPITAL CONTRIBUTIONS AND UNITS
| Name and Address | Description and Agreed | |||||||
| of Member | Value of Capital Contribution | Units | ||||||
The JMBS Casino Trust |
$ | 1,000,000 | 1000 | |||||
f/b/o Xxxxxxx X. Xxxx, XX 0000 Xxxxxxxxxx Xxxxx Xxxxxxxx, XX 00000 |
||||||||
The JMBS Casino Trust |
$ | 1,000,000 | 1000 | |||||
f/b/o Xxxxxx X. Xxxx 0000 Xxxxxxxxxx Xxxxx Xxxxxxxx, XX 00000 |
||||||||
The JMBS Casino Trust |
$ | 1,000,000 | 1000 | |||||
f/b/o Xxxxx X. Xxxxxx 0000 Xxxxxxxxxx Xxxxx Xxxxxxxx, XX 00000 |
||||||||
The JMBS Casino Trust |
$ | 1,000,000 | 1000 | |||||
f/b/o Xxxxxx X. Xxxx 0000 Xxxxxxxxxx Xxxxx Xxxxxxxx, XX 00000 |
||||||||
The JMBS Casino Trust |
$ | 1,000,000 | 1000 | |||||
f/b/o Xxxxxxxx X. Xxxx 0000 Xxxxxxxxxx Xxxxx Xxxxxxxx, XX 00000 |
||||||||
The JMBS Casino Trust |
$ | 1,000,000 | 1000 | |||||
f/b/o Xxxxxxxx X. Xxxx 0000 Xxxxxxxxxx Xxxxx Xxxxxxxx, XX 00000 |
||||||||
The JMBS Casino Trust |
$ | 1,000,000 | 1000 | |||||
f/b/o Xxxxx X. Xxxx 0000 Xxxxxxxxxx Xxxxx Xxxxxxxx, XX 00000 |
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EXHIBIT B
SECURED PROMISSORY NOTE
$
, 20___
On or before [five years after the date hereof], for value received, the
undersigned (the “Maker”) hereby promises to pay to the
order of ______ (the “Payee”), at such place as the Payee may designate in writing from time to time,
the principal sum of and /100 Dollars ($ ) with interest from
the date hereof until maturity at the “prime rate” from time to time in effect as announced in
The Wall Street Journal, with the interest rate hereunder adjusted at the time of each
adjustment to the “prime rate”. Principal and interest hereunder shall be payable in twenty (20)
consecutive quarterly installments of principal and interest, the first of which
shall be due and payable three months after the date hereof, each in the amount that would be
necessary to fully amortize the principal balance over the remaining term at the interest rate then
in effect. In the event any payment of principal or interest required hereunder is not made within
ten (10) days of its due date, a late payment charge equal to 5% of the amount of such payment
shall be immediately due and payable from the Maker to the Payee.
The
Maker hereby grants to the Payee a security interest in Units, issued
to and in the name of the Maker, and all additions thereto and substitutions therefor, all income,
dividends, and other distributions thereon, and all proceeds thereof (the “Collateral”). The Maker
hereby delivers to the Payee UCC Financing Statements appropriately completed, signed by Maker, and
such other documents necessary to perfect a security interest in the Collateral. The Maker shall
hold in trust for and immediately deliver to the Payee with such endorsements, assignments, or
powers all securities received in addition to or in exchange for the Collateral, all rights to
subscribe for securities incident thereto, and all additional securities issued to the Maker on or
in respect of the Collateral, whether as a distribution on any of the Collateral, as a result of
any split or combination of any of the Collateral, by reclassification, or otherwise, and all such
securities shall be Collateral under this note.
Notwithstanding anything in this note to the contrary, the Maker shall make no payment of
principal or interest on this note if, at the time of such payment or upon giving effect thereto,
there shall exist a default in the payment of principal or interest with respect to any Senior
Indebtedness, or there shall have occurred an event of default with respect to any Senior
Indebtedness permitting the holder thereof to accelerate the maturity thereof, until such event of
default is cured, waived or ceases to exist. “Senior Indebtedness” shall mean any indebtedness of
Maker for borrowed money to any bank or other institutional lender, and any deferrals, renewals,
modifications, refundings or extensions of any such indebtedness. Upon any payment or distribution
of the assets of Maker upon dissolution, winding up, liquidation, or reorganization (whether in
bankruptcy, insolvency, reorganization or receivership
proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the
assets and liabilities of Maker, or otherwise), all Senior Indebtedness shall first be paid in
full in cash, or provision made for such payment, before Payee shall be entitled to receive any
payment or distribution from or by Maker on account of the principal or interest on this note.
The Maker may prepay any or all of the unpaid principal balance hereof and all accrued
interest thereon at any time without penalty or premium. All payments hereunder shall be applied
first to accrued interest and then to unpaid principal. Partial prepayments of principal shall be
applied to installments due hereunder in the inverse order of their maturities. At the Payee’s
option, all payments due or to become due under this note shall become immediately due and payable
upon the following events (“Events of Default”); (i) thirty (30) days after the Payee gives the
Maker written notice of any default in making any payment due under this note without cure of such
default within such period, or (ii) upon the death, dissolution, liquidation, termination of
existence, insolvency, appointment of a receiver of any part of the property of, assignment for the
benefit of creditors by, or commencement of any proceedings under any bankruptcy, insolvency, or
reorganization laws by or against the Maker. The Maker shall pay on demand all costs of collection
and attorneys’ fees and disbursements incurred or paid by the Payee in enforcing payment of this
note or realizing on any Collateral securing payment of this note. In the event of any such Event
of Default or after maturity, interest on the unpaid principal balance hereof shall accrue from the
date of such Event of Default or maturity at the rate of 3% plus the prime rate from time to time
in effect as announced in The Wall Street Journal.
Prior to the occurrence of any Event of Default hereunder, the Maker shall have the right to
exercise all voting and other rights and to receive all distributions with respect to the
Collateral. At any time after the occurrence of any such Event of Default, the Payee may transfer
any or all of the Collateral into its name and, with or without such transfer, may exercise all
voting and other rights and receive all dividends and other distributions with respect to the
Collateral, but no such transfer shall constitute a taking of such Collateral in satisfaction of
the Maker’s obligations hereunder unless the Payee expressly so indicates by letter mailed or
delivered to the Maker.
Upon the occurrence of any such Event of Default, and at any time thereafter, the Payee may
exercise all rights and remedies of a secured party under the Uniform Commercial Code as adopted in
Mississippi or under the laws of any state where Collateral is located. Without making demand
against any person for payment of this note or first resorting to any other collateral, the Payee
may sell or otherwise dispose of any or all of the Collateral (with the right to bid for and buy
free from any redemption right) at public or private sale or in any brokers’ board or exchange, for
cash, upon credit, or for future delivery. Any requirement of reasonable notice under the Uniform
Commercial Code shall be met if such notice is mailed, postage prepaid, to the person entitled to
such notice at least ten days prior to the sale or disposition of the Collateral. The Maker
acknowledges that a public sale would require a registration of Collateral under federal or state
securities law, and in such case the Maker waives any right to require a public sale on the ground
that the proceeds of a private sale may be less than
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the proceeds of a public sale. The Payee at any such sale may at its option restrict the
prospective bidders or purchasers to persons who will represent and agree that they are purchasing
the Collateral for their own account in compliance with Rule 506 under the Securities Act of 1933
or any other applicable exemptions available under such Act. The Payee will not be obligated to
make any sale if it determines not to do so, regardless of the fact that notice of the sale may
have been given. The Payee may adjourn any sale and sell at the time and place to which the sale is
adjourned.
No delay or omission of the Payee in exercising any right hereunder shall operate as a waiver
of such right or of any other right hereunder. A waiver on any one occasion shall not be construed
as a bar to or a waiver of any such right on any future occasion.
The Maker waives presentment, notice of protest, protest, and all other demands and notices in
connection with the delivery, acceptance, performance, default, or enforcement of this note, except
notice of nonpayment.
As used in this note, “Payee” includes the original payee of this note, an endorsee or
assignee of this note who is in possession of it, or the bearer of this note if it is payable to
bearer.
This note shall be binding upon and inure to the benefit of the Maker and Payee and their
respective heirs, successors and assigns. This note shall be deemed to be made in and all
provisions hereof construed under the laws of the State of Mississippi. The unenforceability or
invalidity of any provision of this note shall not affect the enforceability or validity of any
other provision hereof.
JMBS CASINO LLC
By:
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