EXHIBIT 3.13
OPERATING AGREEMENT
OF
XXXXXX NEVADA GAMING, LLC
a Nevada limited liability company
THE SECURITIES REPRESENTED BY THIS DOCUMENT HAVE NOT BEEN REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, 15 U.S.C.
ss. 15b ET SEQ., AS AMENDED (THE "FEDERAL ACT"), OR REGISTERED WITH OR QUALIFIED
UNDER THE SECURITIES LAWS OF ANY STATE (THE "STATE ACTS"), IN RELIANCE UPON ONE
OR MORE EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE FEDERAL ACT AND THE
STATE ACTS. NO SALE OR OTHER TRANSFER OF THESE SECURITIES OR ANY INTEREST
THEREIN TO, OR RECEIPT OF ANY CONSIDERATION THEREFOR, MAY BE MADE IF THE
PROPOSED SALE OR OTHER TRANSFER OF THESE SECURITIES AFFECTS THE AVAILABILITY TO
THE COMPANY OF SUCH EXEMPTIONS FROM REGISTRATION AND QUALIFICATION, AND ANY SUCH
PROPOSED SALE OR OTHER TRANSFER MUST BE IN COMPLIANCE WITH ALL APPLICABLE
FEDERAL AND STATE SECURITIES LAWS. THEREFORE, MEMBERS MAY NOT BE ABLE TO
LIQUIDATE THEIR INVESTMENTS AND THESE SECURITIES MAY NOT BE READILY ACCEPTED AS
COLLATERAL FOR A LOAN.
OPERATING AGREEMENT
OF
XXXXXX NEVADA GAMING, LLC
a Nevada limited liability company
This Operating Agreement ("Agreement") is made and entered into as of the
7th day of March, 2001, by and among the undersigned, Xxx X. Xxxxxx, who
constitutes the sole member ("Member") of Xxxxxx Nevada Gaming, LLC, a Nevada
limited liability company (the "Company"), and the Company, with reference to
the recitals set forth below.
R E C I T A L S
A. The undersigned Member has caused the Company to be organized pursuant
to the provisions of the Act (as defined below); and
B. The Member and the Company desire by this Agreement to set forth their
agreement as to the relationship between them and as to the conduct of the
business and the internal affairs of the Company.
THEREFORE, in consideration of the mutual covenants, agreements and
promises made herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Act. "Act" shall mean Chapter 86 of the NRS.
Affiliate. "Affiliate" means with respect to a specified Person, any other
Person who or which is (a) a principal of the specified Person, (b) directly or
indirectly controlling, controlled by or under common control with a the
specified Person, or (c) any member, director, officer, manager, relative or
spouse of the specified Person. For purposes of this definition, "control",
"controlling", "controlled" mean the right to exercise, directly or indirectly,
more than fifty percent of the voting power of the stockholders, members or
owners and, with respect to any individual, partnership, trust or other entity
or association, or the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of the controlled
entity.
Agreement. "Agreement" means this Operating Agreement, as amended from time
to time.
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Articles. "Articles" means the Articles of Organization of the Company as
filed with the Secretary of State of Nevada, as amended from time to time.
Capital Contribution. "Capital Contribution" means the total amount of cash
and the agreed fair market value (net of liabilities) of any property
contributed at any time to the capital of the Company by the Member.
Code. "Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any corresponding United States federal tax statute enacted after
the date of this Agreement. A reference to a specific section of the Code refers
not only to such specific section but also to any corresponding provision of any
United States federal tax statute enacted after the date of this Agreement, as
such specific section or corresponding provision is in effect on the date of
application of the provisions of this Agreement containing such reference.
Covered Person. "Covered Person" means the Member or any Affiliate of the
Member.
Fiscal Year. "Fiscal Year" means the taxable year of the Company as
determined under the Code, the Treasury Regulations or any other applicable
laws.
Gaming Authority. "Gaming Authority" means those federal, state and local
governmental, regulatory and administrative authorities, agencies, boards and
official responsible for or involved in the regulation of gaming or gaming
activities, including manufacturing and distributing gaming devices and other
gaming equipment, in any jurisdiction and, within the State of Nevada,
specifically, the Nevada Gaming Commission and the Nevada State Gaming Control
Board.
Gaming Laws. "Gaming Laws" means those laws pursuant to which any Gaming
Authority possesses regulatory, licensing or permit authority over gaming,
manufacturing and distributing within any jurisdiction and, within the State of
Nevada, specifically, the Nevada Gaming Control Act, as codified in NRS Chapter
463, as amended from time to time, and the regulations of the Nevada Gaming
Commission promulgated thereunder, as amended from time to time.
Gaming Licenses. "Gaming Licenses" shall mean all licenses, permits,
approvals, authorizations, registrations, findings of suitability, franchises
and entitlements issued by any Gaming Authority necessary for or relating to the
conduct of activities under the Gaming Laws.
Interest. "Interest" means the entire ownership interest of the Member in
the Company, including the right of the Member to any and all benefits to which
a member may be entitled as provided under the Act and this Agreement.
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NRS. "NRS" means the Nevada Revised Statutes, as amended from time to time.
Person. "Person" means a natural person, any form of business or social
organization and any other nongovernmental legal entity including, but not
limited to, a corporation, partnership, association, trust, unincorporated
organization, estate or limited-liability company.
Records Office. "Records Office" means an office of the Company in Nevada,
which may but need not be a place of its business, at which it shall keep all
records identified in NRS Section 86.241, except that none of the lists required
to be maintained pursuant to NRS Section 86.241 need be maintained in
alphabetical order, nor shall the Company be required to maintain at its Records
Office copies of powers of attorney except those relating to the execution of
the Articles and this Agreement.
Secretary of State. "Secretary of State" means the office of the Nevada
Secretary of State.
Treasury Regulations. "Treasury Regulations" means the federal income tax
regulations promulgated by the U.S. Treasury Department under the Code and
codified at Title 26 of the Code of Federal Regulations, as amended from time to
time.
Unsuitable Person. "Unsuitable Person" shall mean an officer, agent or
employee of the Company or an Affiliate of such Person, (i) who is denied a
Gaming License by any Gaming Authority, disqualified from eligibility for a
Gaming License, determined to be unsuitable to own or control an Interest or
determined to be unsuitable to be connected with a Person engaged in gaming
activities in any jurisdiction by a Gaming Authority, or (ii) whose continued
involvement in the business of the Company as an officer, agent or employee (A)
causes the Company or an Affiliate of the Company to lose or to be threatened
with the loss of any Gaming License, or (B) is deemed likely, in the sole and
absolute discretion of the Member, based on verifiable information or
information received from the Gaming Authorities, to jeopardize or adversely
affect the likelihood that the Gaming Authorities will issue a Gaming License to
the Company or to an Affiliate of the Company or to adversely affect the
Company's or an Affiliate of the Company's use of or entitlement to any Gaming
License.
ARTICLE II
INTRODUCTORY MATTERS
2.1 Formation. Pursuant to the Act, the Company has been formed as a Nevada
limited liability company under the laws of the State of Nevada. To the extent
that the rights or obligations of the Member are different by reason of any
provision of this Agreement than they would be in the absence of such provision,
this Agreement shall, to the extent permitted by the Act, control.
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2.2 Name. The name of the Company shall be "Xxxxxx Nevada Gaming, LLC." The
business and affairs of the Company may be conducted under that name or any
other name that the Member deems appropriate or advisable.
2.3 Records Office. The Company shall continuously maintain in the State of
Nevada a Records Office. As of the date hereof, the Records Office shall be c/x
Xxxxxxx Xxxxxxxx Xxxxxxx, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxx,
Xxxxxx. The Records Office may be changed to another location within the State
of Nevada as the Member may from time to time determine.
2.4 Other Offices. The Company may establish and maintain other offices at
any time and at any place or places as the Member may designate or as the
business of the Company may require.
2.5 Resident Agent and Registered Office. The resident agent of the Company
for service of process shall be as set forth in the Articles or as changed by
the Member from time to time. The Company shall have as its registered office in
the State of Nevada the street address of its resident agent.
2.6 Purpose. The Company is formed for the object and purpose of, and the
nature of the business to be conducted and promoted by the Company is, engaging
in any lawful act or activity for which limited liability companies may be
formed under the Act and engaging in any and all activities necessary or
incidental to the foregoing.
2.7 Powers of the Company. The Company shall have the power and authority
to take any and all actions necessary, appropriate, advisable, convenient or
incidental to or for the furtherance of the purpose set forth in Section 2.6,
including, but not limited to, the power and authority to:
(a) borrow money and issue evidence of indebtedness, and to secure the
same by a mortgage, pledge or other lien on any or all of the assets of the
Company;
(b) conduct its business and operations in any state, territory,
district or possession of the United States or in any foreign country that may
be necessary or convenient to the accomplishment of the purpose of the Company;
(c) acquire, by purchase, lease, contribution of property or
otherwise, and own hold, maintain, finance, improve, lease, sell, convey,
mortgage, transfer, demolish or dispose of any real or personal property that
may be necessary, convenient or incidental to the accomplishment of the purpose
of the Company;
(d) enter into, perform and carry out contracts of any kind, including
without limitation, contracts with the Member or any Affiliate that are
necessary to, in
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connection with, convenient to, or incidental to the accomplishment of the
purpose of the Company;
(e) purchase, take, receive, subscribe for or otherwise acquire, own,
hold, vote, use, employ, sell, mortgage, lend, pledge or otherwise dispose of,
and otherwise use and deal in and with, shares or other interests in or
obligations of domestic or foreign entities;
(f) lend money for any proper purpose, invest and reinvest its funds
and take and hold real and personal property for the payment of funds so loaned
or invested;
(g) xxx and be sued, complain and defend and participate in
administrative or other proceedings, in its name;
(h) appoint employees, agents and officers of the Company, and define
their duties and fix their compensation;
(i) indemnify any Person or entity and obtain any and all types of
insurance;
(j) cease its activities and cancel its insurance;
(k) negotiate, enter into, renegotiate, extend, renew, terminate,
modify, amend, waiver, execute, acknowledge or take any other action with
respect to any lease, contract or security agreement in respect of any assets of
the Company;
(l) pay, collect, compromise, litigate, arbitrate or otherwise adjust
or settle any and all other claims or demands of or against the Company or hold
such proceeds against the payment of contingent liabilities; and
(m) make, execute, acknowledge and file any and all documents or
instruments necessary, convenient or incidental to the accomplishment of the
purpose of the Company.
ARTICLE III
CAPITAL CONTRIBUTIONS
3.1 Initial Capital. The initial capital of the Company shall be the
Capital Contribution of the Member on or prior to the date hereof in such amount
or value as is set forth opposite the name of the Member on Schedule I attached
hereto, such Capital Contribution made in exchange for a 100% ownership interest
in the capital and the profits of the Company. The Member is not required to
make any additional Capital Contributions to the Company.
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ARTICLE IV
PROFITS AND LOSSES
4.1 Profits and Losses. The Company's profits and losses for any Fiscal
Year shall be allocated to the Member.
4.2 Tax Classification. The parties agree that, so long as the Company has
only one Member, it is intended that the Company be disregarded for federal and
all relevant state income tax purposes and that the activities of the company be
deemed to be activities of the Member for such purposes, as provided for by
Treasury Regulations Sections 301.7701-1, et seq., and comparable provisions of
applicable state tax law. In the event that the Company becomes an entity that
has more than one Member, it is intended that the Company be treated as a
"partnership" for federal and all relevant state income tax purposes, and the
parties agree to make all available elections, and take all available actions,
to cause the Company to be so treated.
ARTICLE V
DISTRIBUTIONS
5.1 Operating Distributions. Subject to Section 5.2, the Company shall from
time to time distribute to the Member such amounts in cash and other assets as
shall be determined by the Member.
5.2 Limitations on Distribution. Notwithstanding any provision to the
contrary contained in this Agreement, the Company shall not make any
distribution if such distribution would violate the NRS or other applicable law
or would cause a breach or default under any agreement or instrument to which
the Company is a party or by which it or its assets are bound, but instead shall
make such distribution as soon as practicable such that the making of such
distribution would not cause such violation, breach or default.
ARTICLE VI
MEMBERSHIP
6.1 Limitation of Liability. The Member shall not be liable under a
judgment, decree or order of a court, or in any other manner, for a debt,
obligation or liability of the Company, except to the extent required by law or
in an agreement signed by the Member. The Member shall not be required to loan
any funds to the Company, nor shall the Member be required to make any
contribution to the Company, nor shall the Member be subject to any liability to
the Company or any third party, as a result of any deficit of the Company.
However, nothing in this Agreement shall prevent the Member from making secured
or unsecured loans to the Company by agreement with the Company.
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6.2 Powers of the Member. The Member shall have full, exclusive and
complete discretion to manage and control the business and affairs of the
Company, to make all decisions affecting the business and affairs of the Company
and to take all such actions as he, she or it deems necessary, appropriate or
convenient to or for the furtherance of the purpose of the Company, including,
without limitation, the power and authority to execute all documents and
instruments, perform all duties and powers, and do all things on behalf of the
Company in all matters necessary, desirable, convenient or incidental to the
purpose of the Company. The Member is an agent of the Company's business and the
actions of the Member taken in such capacity and in accordance with this
Agreement shall bind the Company. The Member shall be the sole Person with the
power to bind the Company except and to the extent that such power is expressly
delegated to any other Person by the Member in this Agreement or in writing or
by oral or electronic communication, and such delegation shall not cause the
Member to cease to be the Member. There shall not be a "manager" (within the
meaning of the Act) of the Company.
6.3 Election of Officers. Subject to the applicable provisions of the
Gaming Laws, the Member in his sole discretion may, from time to time, appoint
any individuals as officers with such duties, authorities, responsibilities and
titles as the Member may deem appropriate. In the event that the Member appoints
officers with "corporate" titles but fails to delineate the powers, duties,
authority and responsibilities of such officers in writing, those officers shall
have the powers, duties, authority and responsibilities typically given to
corporate officers who have such titles. Such officers shall serve until their
successors are duly appointed by the Member or until their earlier removal or
resignation. Any officer appointed by the Member may be removed at any time by
the Member and any vacancy in any office shall be filled by the Member. If any
Person elected to serve as an officer is found to be an Unsuitable Person, the
Member shall immediately remove such Person as an officer and such officer shall
thereupon automatically cease to be an officer.
6.4 Transfer of Interest. The Interest of the Member is personal property,
and such Interest may be transferred or assigned, in whole or in part, in the
sole discretion of the Member. Notwithstanding anything to the contrary set
forth herein, no Interest in the Company may be issued or transferred in any
manner whatsoever except in compliance with all Gaming Licenses and Gaming Laws.
ARTICLE VII
DISSOLUTION OF THE COMPANY
7.1 Dissolution. The Company shall be dissolved and its affairs wound up as
determined by the Member.
7.2 Resignation. Subject to Section 6.4 and applicable law, the Member may
not resign from the Company before the dissolution and winding up of the
Company.
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7.3 Distribution on Dissolution and Liquidation. In the event of the
dissolution of the Company for any reason, the business of the Company shall be
continued to the extent necessary to allow an orderly winding up of its affairs,
including the liquidation and termination of the Company pursuant to the
provisions of this Section 7.3, as promptly as practicable thereafter, and each
of the following shall be accomplished:
(a) the Member shall oversee the winding up of the Company's affairs;
(b) the assets of the Company shall be liquidated as determined by
the Member, or the Member may determine not to sell all or any portion of the
assets, in which event such assets shall be distributed in kind; and
(c) the proceeds of sale and all other assets of the Company shall be
applied and distributed as follows and in the following order of priority:
(i) to the expenses of liquidation;
(ii) to the payment of the debts and liabilities of the Company,
including any debts and liabilities owed to the Member; and
(iii) the balance, if any, to the Member.
ARTICLE VIII
LIABILITY, EXCULPATION AND INDEMNIFICATION
8.1 Exculpation.
(a) No Covered Person shall be liable to the Company or any other
Covered Person for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Covered Person in good faith on behalf of
the Company and in a manner reasonably believed to be within the scope of
authority conferred on such Covered Person by this Agreement, the Member or an
appropriate officer or employee of the Company, except that a Covered Person
shall be liable for any such loss, damage or claim incurred by reason of such
Covered Person's intentional misconduct, fraud or a knowing violation of the
law, which was material to the cause of action.
(b) A Covered Person shall be fully protected in relying in good
faith upon the records of the Company and upon such information, opinions,
reports or statements presented to the Company by any Person as to matters the
Covered Person reasonably believes are within such other Person's professional
or expert competence, including information, opinions, reports or statements as
to the value and amount of the
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assets, liabilities, profits or losses or any other facts pertinent to the
existence and amount of assets from which distributions to the Member might
properly be paid.
8.2 Fiduciary Duty. To the extent that, at law or in equity, a Covered
Person has duties (including fiduciary duties) and liabilities relating thereto
to the Company or to the Member, then, to the fullest extent permitted by
applicable law, a Covered Person acting under this Agreement shall not be liable
to the Company or to the Member for its good faith acts or omissions in reliance
on the provisions of this Agreement. The provisions of this Agreement, to the
extent that they restrict the duties and liabilities of a Covered Person
otherwise existing at law or in equity, shall replace such other duties and
liabilities of such Covered Person.
8.3 Indemnity. The Company does hereby indemnify and hold harmless any
Covered Person to the fullest extent permitted by NRS Sections 86.411, 86.421
and 86.431.
8.4 Determination of Right to Indemnification. Any indemnification under
Section 8.3, unless ordered by a court or advanced pursuant to Section 8.5
below, shall be made by the Company only as authorized in the specific case upon
a determination by the Member that indemnification is proper in the
circumstances.
8.5 Advance Payment of Expenses. The expenses of the Member incurred in
defending a civil or criminal action, suit or proceeding shall be paid by the
Company as they are incurred and in advance of the final disposition of the
action, suit or proceeding, upon receipt of an undertaking by or on behalf of
the Member to repay the amount if it is ultimately determined by a court of
competent jurisdiction that the Member is not entitled to be indemnified by the
Company. The provisions of this subsection do not affect any rights to
advancement of expenses to which personnel of the Company other than the Member
may be entitled under any contract or otherwise by law.
8.6 Assets of the Company. Any indemnification under this Article VIII
shall be satisfied solely out of the assets of the Company. No debt shall be
incurred by the Company or the Member in order to provide a source of funds for
any indemnity, and the Member shall not have any liability (or any liability to
make any additional Capital Contribution) on account thereof.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 Notices. All notices to be given hereunder shall be in writing and
shall be addressed to the party at such party's last known address or facsimile
number appearing on the books of the Company. If no such address or facsimile
number has been provided, it will be sufficient to address any notice (or fax
any notice that may be faxed) to such party at the Records Office of the
Company. Notice shall, for all purposes, be deemed
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given and received, (a) if hand-delivered, when the notice is received, (b) if
sent by United States mail (which must be by first-class mail with postage
charges prepaid), three (3) days after it is posted with the United States
Postal Service, (c) if sent by a nationally recognized overnight delivery
service, when the notice is received, or (d) if sent by facsimile, when the
facsimile is transmitted and confirmation of complete receipt is received by the
transmitting party during normal business hours. If any notice is sent by
facsimile, the transmitting party shall send a duplicate copy of the notice to
the parties to whom it is faxed by regular mail. If notice is tendered and is
refused by the intended recipient, the notice shall nonetheless be considered to
have been given and shall be effective as of the date of such refusal. The
contrary notwithstanding, any notice given in a manner other than that provided
in this Section that is actually received by the intended recipient shall be
deemed an effective delivery of such notice.
9.2 Insurance. The Company may purchase and maintain insurance, to the
extent and in such amounts as the Member shall, in his sole discretion, deem
reasonable, on behalf of Covered Persons and such other Persons as the Member
shall determine, against any liability that may be asserted against or expenses
that may be incurred by any such Person in connection with the activities of the
Company.
9.3 Membership Certificate. The Company may issue a certificate to the
Member to represent the Interest in the Company upon execution of this Agreement
and the payment of the initial Capital Contribution.
9.4 Complete Agreement. This Agreement, together with the Articles to the
extent referenced herein, constitute the complete and exclusive agreement and
understanding of the Member and the Company with respect to the subject matter
contained herein. This Agreement and the Articles replace and supersede all
prior agreements, negotiations, statements, memoranda and understandings,
whether written or oral, by and among the Member and the Company.
9.5 Amendments. This Agreement may be amended only by a writing signed by
the Member and the Company.
9.6 Applicable Law; Jurisdiction. This Agreement, and the rights and
obligations of the parties hereto, shall be interpreted and enforced in
accordance with and governed by the laws of the State of Nevada without regard
to the conflict laws of that State.
9.7 Interpretation. The headings in this Agreement are inserted for
convenience only and are in no way intended to describe, interpret, define, or
limit the scope, extent or intent of this Agreement or any provisions contained
herein. In the interpretation of this Agreement, the singular may be read as the
plural, and vice versa, the neuter gender as the masculine or feminine, and vice
versa, and the future tense as the past or present, and vice versa, all
interchangeably as the context may require in order to
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fully effectuate the intent of the parties and the transactions contemplated
herein. Syntax shall yield to the substance of the terms and provisions hereof.
9.8 Counterparts and Facsimile Copies. Facsimile copies of this Agreement,
any counterpart of this Agreement or any approval or written consent of the
Member, and facsimile signatures hereon or thereon, shall have the same force
and effect as originals.
9.9 Severability. If any provision of this Agreement, or any application
thereof, should be held by a court of competent jurisdiction to be invalid,
void, illegal or unenforceable to any extent, that provision shall be deemed
severable and the remainder of this Agreement, and all applications thereof,
shall not be affected, impaired or invalidated thereby, and shall continue in
full force and effect to the fullest extent permitted by law.
9.10 Waivers. No waiver of any of the provisions of this Agreement shall be
deemed, or shall constitute, a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver, and no waiver
shall be binding unless evidenced by an instrument in writing and executed by
the party making the waiver.
9.11 No Third Party Beneficiaries. This Agreement is made solely among and
for the benefit of the Member and the Company and their respective successors
and assigns, and no other Person shall have any rights, interest or claims
hereunder or be entitled to any benefits under or on account of this Agreement
as a third party beneficiary or otherwise.
9.12 Securities under the UCC. If the Member deems it advisable, the
Interest may be deemed to be a security governed by Article 8 of the Uniform
Commercial Code in the State of Nevada by the application to any certificate
issued to evidence the Interest of a legend to that effect.
[signature page to follow]
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IN WITNESS WHEREOF, this Agreement was executed as of the date first-above
written.
MEMBER:
/s/ Xxx X. Xxxxxx
--------------------------------------
Xxx X. Xxxxxx
COMPANY:
XXXXXX NEVADA GAMING, LLC, a Nevada
limited liability company
By: /s/ Xxx X. Xxxxxx
----------------------------------
Xxx X. Xxxxxx, Member
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SCHEDULE I
Member's Name: Xxx X. Xxxxxx
Member's Address: c/x Xxxxxx Companies
000 Xxxxxxxxxxx Xxxxxx, #0000
Xxxxxxx, Xxxxxxxx 00000
Member's Initial
Capital Contribution: $100.00
Member's Ownership Interest: 100%
