INDIVIDUALS SERVING ON A COMMITTEE OR BOARD SERVING A FUNCTION
COMPARABLE TO THAT SERVED BY A BOARD OF DIRECTORS OF A CORPORATION.
ALL
DIRECTORS AND EXECUTIVE OFFICERS OF A CORPORATION AND ALL DIRECTORS AND MEMBERS
OF A BOARD OR BOARD OF DIRECTORS OR SIMILAR COMMITTEE OF A PERSON OR
ORGANIZATION ORGANIZED AS A LIMITED LIABILITY COMPANY SHALL BE DEEMED TO BE
AFFILIATES OF SUCH PERSON OR ORGANIZATION.
1.3
"BOARD" MEANS THE BOARD OF MANAGERS OF THE
COMPANY.
1.4
"CALCULATION DATE" HAS THE MEANING GIVEN IN
SECTION 2.6 OF THIS AGREEMENT.
1.5
"CODE" HAS THE MEANING GIVEN IN SECTION 4.4 OF
THIS AGREEMENT.
1.6
"COMPANY" HAS THE MEANING GIVEN IN THE
RECITALS TO THIS AGREEMENT.
1.7
"COMPETITIVE CASINOS" MEANS AMERISTAR KANSAS
CITY, AMERISTAR ST. CHARLES, ISLE OF CAPRI KANSAS CITY, ISLE OF CAPRI BOONVILLE,
ARGOSY AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
1.8
"COST OF FUNDS RATE" MEANS THE RATE OF
INTEREST EQUAL TO SOUTHWEST'S AVERAGE COST OF FUNDS FOR A GIVEN PERIOD.
1.9
"CPA" SHALL MEAN AN ACCOUNTING FIRM OF
REGIONAL OR NATIONAL RECOGNITION SELECTED BY THE BOARD AND REASONABLY ACCEPTABLE
TO THE MEMBERS.
1.10
"EBITDA MARGIN" MEANS FOR THE DESIGNATED PERIOD, (1)
THE SUM OF AN ORGANIZATION'S (I) PRETAX EARNINGS FROM CONTINUING OPERATIONS,
(II) INTEREST EXPENSE AND (III) DEPRECIATION, DEPLETION, AND AMORTIZATION OF
TANGIBLE AND INTANGIBLE ASSETS (INCLUDING REAL PROPERTY LEASES AND ALL
CONTRACTUAL OBLIGATIONS TO THE CITY OF ROCKAWAY BEACH, MISSOURI AS THEY RELATE
TO THE COMPANY, AND ALL MANAGEMENT FEES, IF APPLICABLE), BEFORE (A) SPECIAL
EXTRAORDINARY GAINS, (B) MINORITY INTERESTS, AND (C) MISCELLANEOUS GAINS AND
LOSSES, (2) DIVIDED BY SUCH ORGANIZATION'S GROSS PROFITS FROM CASINO OPERATIONS,
IN EACH CASE COMPUTED AND CALCULATED IN ACCORDANCE WITH GAAP.
1.11
"EFFECTIVE DATE" MEANS THE DATE THAT THE COMPANY
RECEIVES INITIAL LICENSING APPROVAL FROM THE GAMING COMMISSION.
1.12
"FACILITY" HAS THE MEANING GIVEN TO SUCH TERM IN THE
RECITALS TO THIS AGREEMENT.
1.13
"GAAP" MEANS GENERALLY ACCEPTED ACCOUNTING
PRINCIPALS, CONSISTENTLY APPLIED.
1.14
"GAMING AUTHORITY" MEANS ANY GOVERNMENTAL GAMING
AUTHORITY HAVING JURISDICTION OVER THE COMPANY, THE MANAGER, A MEMBER OR ANY OF
THEIR AFFILIATES, INCLUDING, BUT
2
NOT LIMITED TO, THE STATE GAMING AUTHORITIES FOR MISSOURI, MISSISSIPPI,
COLORADO, WEST VIRGINIA, PENNSYLVANIA, OHIO, NEVADA AND MINNESOTA AND THE
NATIONAL INDIAN GAMING COMMISSION.
1.15
"GAMING COMMISSION" MEANS THE MISSOURI GAMING
COMMISSION AND ANY OTHER GAMING GOVERNING BODY THAT HAS AUTHORITY OVER THE
GAMING OPERATIONS.
1.16
"GAMING OPERATIONS" MEANS (I) THE COMPANY'S GAMING
AND WAGERING ACTIVITIES AND (II) ALL COMMERCIAL ACTIVITIES CONDUCTED AT THE
FACILITY BY THE COMPANY, INCLUDING, WITHOUT LIMITATION, CONCESSION, RESTAURANT,
BAR, HOTEL, NIGHT CLUB AND RETAIL ACTIVITIES.
1.17
"GROSS PROFITS" MEANS THE TOTAL REVENUE EARNED BY A
CASINO OPERATION (INCLUDING FROM NON-GAMING ACTIVITIES) LESS ANY AMOUNTS PAID
OUT FOR PLAYER WINNINGS OR USED TO PAY FOR PRIZES BY SUCH CASINO OPERATION AND
THE COSTS OF GOODS SOLD WITH RESPECT TO NON-GAMING ACTIVITIES, ALL AS DETERMINED
IN ACCORDANCE WITH GAAP.
1.18
"LOW" HAS THE MEANING GIVEN IN THE RECITALS TO THIS
AGREEMENT.
1.19
"MANAGEMENT AGREEMENT CRITERIA" MEANS THE OCCURRENCE
OF EITHER OF THE