AFFILIATE'S BUSINESS OPERATIONS AT THE TIME OF ANY SUCH DETERMINATION.
58.
TAXABLE YEAR - THE TAXABLE YEAR OF THE COMPANY AS DETERMINED
PURSUANT TO SECTION 706 OF THE CODE, WHICH SHALL BE THE CALENDAR YEAR ENDED
DECEMBER 31 UNLESS PROPERLY CHANGED BY THE MANAGING MEMBERS OR BOARD.
59.
TAXING JURISDICTION - ANY STATE, LOCAL, OR FOREIGN GOVERNMENT THAT
COLLECTS TAX, INTEREST OR PENALTIES, HOWEVER DESIGNATED, ON ANY MEMBER'S SHARE
OF THE NET PROFITS OF THE COMPANY.
60.
UNMATCHED PRE-LICENSING COSTS - SHALL MEAN THE AMOUNT OF
SOUTHWEST'S PRE-LICENSING COSTS IN EXCESS OF ONE MILLION DOLLARS
($1,000,000.00).
61.
UNRECOVERED PREFERRED RETURN - SHALL MEAN THE CUMULATIVE AMOUNT OF
ACCRUED BUT UNPAID PREFERRED RETURN.
62.
UNRECOVERED UNMATCHED PRE-LICENSING COSTS - SHALL MEAN THE
AGGREGATE UNMATCHED PRE-LICENSING COSTS LESS THE AMOUNT OF SUCH UNMATCHED
PRE-LICENSING COSTS PAID TO SOUTHWEST IN THE FORM OF MONTHLY INSTALLMENTS
PURSUANT TO ARTICLE IX, SECTION 3 OR OTHERWISE RETURNED TO SOUTHWEST PURSUANT TO
ARTICLE IX, SECTION 4.
63.
UNSUITABLE PERSON - A PERSON NOT LICENSABLE BY EACH GAMING
AUTHORITY HAVING JURISDICTION OVER THE COMPANY'S BUSINESS OR ANY MEMBER'S OR
THEIR AFFILIATE'S BUSINESS OPERATIONS AT THE TIME OF ANY SUCH DETERMINATION.
ARTICLE II
FORMATION
1.
ORGANIZATION.
SOUTHWEST ORGANIZED THE COMPANY AS A MINNESOTA
LIMITED LIABILITY COMPANY PURSUANT TO THE PROVISION OF THE ACT AND FILED THE
COMPANY'S ORIGINAL ARTICLES OF ORGANIZATION ON JUNE 16, 2003.
AT ALL TIMES
SINCE ITS FORMATION AND THROUGH THE EFFECTIVE TIME, THE COMPANY HAS BEEN
DISREGARDED AS AN ENTITY SEPARATE FROM SOUTHWEST FOR FEDERAL AND STATE INCOME
TAX PURPOSES.
ON THE EFFECTIVE DATE, MTR-HARNESS ACQUIRED A FIFTY PERCENT (50%)
PERCENTAGE INTEREST FROM THE COMPANY, AND THE REVISED ARTICLES WERE FILED WITH
THE MINNESOTA SECRETARY OF STATE ON OR BEFORE THE EFFECTIVE DATE.
ON THE
EFFECTIVE DATE, THE COMPANY CONVERTED INTO A PARTNERSHIP FOR FEDERAL AND
APPLICABLE STATE INCOME TAX PURPOSES.
2.
AGREEMENT.
FOR AND IN CONSIDERATION OF THE MUTUAL COVENANTS
HEREIN CONTAINED AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, THE MEMBERS EXECUTING THE AGREEMENT
HEREBY
8
AGREE TO THE TERMS AND CONDITIONS OF THE AGREEMENT, AS IT MAY FROM TIME TO TIME
BE AMENDED ACCORDING TO ITS TERMS.
IT IS THE EXPRESS INTENTION OF THE MEMBERS
THAT THE AGREEMENT SHALL BE THE SOLE SOURCE OF AGREEMENT OF THE PARTIES.
CONSISTENT WITH SUCH INTENTION, THE MEMBERS ACKNOWLEDGE THAT THE COMPANY'S
OPERATING AGREEMENT, DATED JULY 16, 2003, IS NO LONGER IN FORCE AND EFFECT.
3.
NAME.
THE NAME OF THE COMPANY IS NORTH METRO HARNESS INITIATIVE,
LLC, A LIMITED LIABILITY COMPANY, AND ALL BUSINESS OF THE COMPANY SHALL BE
CONDUCTED UNDER THAT NAME OR UNDER ANY OTHER NAME, BUT IN ANY CASE, ONLY TO THE
EXTENT PERMITTED BY APPLICABLE LAW.
4.
TERM.
THE DURATION OF THE COMPANY SHALL BE PERPETUAL, UNLESS THE
COMPANY SHALL BE SOONER DISSOLVED AND ITS AFFAIRS ARE WOUND UP IN ACCORDANCE
WITH THE ACT OR THIS AGREEMENT.
5.
REGISTERED AGENT AND OFFICE.
THE REGISTERED AGENT FOR THE
SERVICE OF PROCESS SHALL BE