OPERATING AGREEMENT OF PNK (RIVER CITY), LLC (a Missouri limited liability company)
Exhibit 3.46
OF
PNK (RIVER CITY), LLC
(a Missouri limited liability company)
(a Missouri limited liability company)
This Operating Agreement of PNK (River City), LLC, a Missouri limited liability company (the
“Company”), is entered into and adopted effective as of December 22, 2009 (the “Effective Date”),
by Pinnacle Entertainment, Inc., a Delaware corporation (the “Member”), which constitutes the sole
member of the Company, with reference to the recitals set forth below:
R E C I T A L S
A. The Member caused Articles of Organization for the Company to be filed with the Secretary
of State of the State of Missouri on January 4, 2006 and an Amendment to the Articles of
Organization to be filed on December 18, 2009; and
B. Pursuant to Section 347.081 of the Missouri Limited Liability Company Act (the “Act”), the
Member desires to set forth and adopt this Operating Agreement to provide for the conduct of the
Company’s business and affairs on and after the Effective Date.
NOW, THEREFORE, the Member hereby adopts as follows:
ARTICLE I
DEFINITIONS
“Affiliate” means with respect to a specified Person, any other Person who or which is
directly or indirectly controlling, controlled by or under common control with the specified
Person. For purposes of this definition, “control”, “controlling”, and “controlled” mean (i) the
right to exercise, directly or indirectly, more than fifty percent of the voting power of the
stockholders, members or owners, or (ii) the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of an entity, whether through the
ownership of voting securities, by contract or otherwise.
“Agreement” means this Operating Agreement, as originally executed and as amended or restated
from time to time.
“Capital Contribution” means a contribution to the capital of the Company in cash, property,
or otherwise.
“Articles of Organization” means the Articles of Organization of the Company as filed with the
Secretary of State of Missouri, as amended from time to time.
“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” means (a) the Member, (b) any manager, director or officer of the Company,
(c) any Person acting on behalf of the Member to direct the activities of the Company, or (d) any
Person who was, at the time of the act or omission in question, a Person described in clause (a),
(b) or (c) hereof.
“Gaming” means to deal, operate, carry on, conduct, maintain or expose for play any game
played with cards, dice, equipment or any mechanical, electromechanical or electronic device for
money, property, checks, credit or any representative of value, including without limitation the
conducting of Gaming activities in accordance with applicable Gaming Laws and Gaming Licenses.
“Gaming Authority” means those national, state, local and other governmental, regulatory and
administrative authorities, agencies, boards, commissions and officials responsible for or involved
in the regulation and control of Gaming or Gaming activities or operations in any jurisdiction.
“Gaming Laws” means those laws pursuant to which any Gaming Authority possesses regulation,
licensing, permit, investigatory, or enforcement authority over Gaming or Gaming activities or
operations within any jurisdiction.
“Gaming Licenses” means all licenses, permits, approvals, authorizations, certificates,
registrations, findings of suitability, franchises and entitlements issued by any Gaming Authority
necessary for or relating to the conduct of Gaming or Gaming activities or operations or the
ownership of an interest in an entity that conducts Gaming or Gaming activities or operations.
“Interest” means the entire ownership interest of the Member in the Company at any time,
including the right of the Member to any and all benefits to which the Member may be entitled as
provided under the Act and this Agreement.
“Member” is defined in the preamble hereof. As of the Effective Date, the Member’s name,
address and ownership interest are as set forth on Schedule I attached hereto. In the
event that the Member approves the admission of any other Person as a member of the Company, such
Person shall have such relative rights and responsibilities as a member of the Company as are
agreed to by the Member.
“Person” means any individual, partnership, limited liability company, corporation, trust,
estate, association, or other entity.
“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” means a Person (i) who is denied a Gaming License by any Gaming Authority,
disqualified from eligibility for a Gaming License, or determined to be
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unsuitable to own or control an interest in, or to be connected with, a Person engaged
directly or indirectly in Gaming or Gaming activities in any jurisdiction by a Gaming Authority, or
(ii) whose continued involvement in the business of the Company (A) causes the Company or any
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, to jeopardize or adversely affect
the likelihood that the Gaming Authorities will issue a Gaming License to, or in connection with
the business of, the Company or any Affiliate of the Company or to adversely affect the Company’s
or any such Affiliate’s use of or entitlement to any Gaming License.
ARTICLE II
INTRODUCTORY MATTERS
2.1 Existence. Pursuant to the provisions of the Act, the Company has been formed as
a Missouri limited liability company under the laws of the State of Missouri. The Member or any
officer of the Company shall execute, deliver and file any other certificates (and any amendments
and/or restatements thereof) necessary for the Company to qualify to do business in any
jurisdiction in which the Company may wish to conduct business. 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.
2.2 Name. The name of the Company is “PNK (River City), LLC.” Subject to compliance
with applicable law, 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 Other Offices. The Company may establish and maintain offices at any time and at
any place or places as the Member may designate or as the business of the Company may require.
2.4 Resident Agent and Registered Office. The resident agent of the Company for
service of process shall be CSC-Lawyers Incorporating Service Company, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or as changed by the Member from time to time. The Company shall
have as its registered office in the State of Missouri the street address of its resident agent.
2.5 Purpose. Except as provided elsewhere in this Agreement, the Company is formed
for the object and purpose of 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.
2.6 Powers of the Company. Except as provided elsewhere in this Agreement, 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
2.5, including, but not limited to, the power and authority to:
(a) borrow money and issue evidences of indebtedness, and to secure the same by a mortgage,
pledge or other lien on any or all of the assets of the Company;
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(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 of, or other Person associated directly or indirectly
with, the Member that are necessary to, in 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) ▇▇▇ 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 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, waive,
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;
(m) apply for, obtain and maintain any licenses, permits, approvals, exemptions and waivers
from any Gaming Authority as may be necessary under applicable Gaming Laws for the conduct of its
business and operations; and
(n) make, execute, acknowledge and file any and all documents or instruments necessary,
convenient or incidental to the accomplishment of the purpose of the Company.
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ARTICLE III
CAPITAL CONTRIBUTIONS
The Member shall not be required to make any Capital Contributions to the Company.
ARTICLE IV
PROFITS AND LOSSES
4.1 Profits and Losses. The Company’s profits and losses for any period shall be
allocated to the Member.
4.2 Tax Classification. 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 all available elections shall be made, and all available actions shall be
taken, to cause the Company to be so treated (provided, however, that if the Company has more than
one member but is treated for federal income tax purposes as having only a single owner, then it is
intended that the Company be disregarded for federal and all relevant state income tax purposes as
provided in the preceding sentence).
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 Act 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 the Act or in an agreement signed by the
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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.
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 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 communication, and such delegation shall not
cause the Member to cease to be the Member.
6.3 Election of Manager. Initially, there shall not be a “manager” (within the
meaning of the Act) of the Company. Subject to the applicable provisions of the Gaming Laws and
the Act, the Member in its sole discretion may, from time to time, appoint one or more Persons as
managers with such duties, authorities, responsibilities and titles as the Member may deem
appropriate. Such a manager shall serve until such manager’s successor is duly appointed by the
Member or until such manager’s earlier removal or resignation. Any manager appointed by the Member
may be removed at any time by the Member. If any Person elected to serve as a manager is found to
be an Unsuitable Person, the Member shall immediately remove such Person as a manager and such
Person shall thereupon automatically cease to be a manager.
6.4 Election of Officers. Subject to the applicable provisions of the Gaming Laws,
the Member in its sole discretion may, from time to time, appoint any individuals as officers of
the Company with such duties, authorities, responsibilities and titles as the Member may deem
appropriate. 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 person shall thereupon automatically cease to be an
officer.
6.5 Duties and Authority of the Member, Managers and Officers. Subject to any
restrictions imposed by the Member or the provisions of the Articles of Organization, this
Agreement, Gaming Laws or the Act (including without limitation those provisions relating to
actions or decisions required to be taken or made by, or with the approval of, the Member), the
Member (or authorized representative of the Member), any manager or any officer, acting alone, is
authorized to endorse checks, drafts, and other evidences of indebtedness made payable to the order
of the Company, but only for the purpose of deposit
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into the Company’s accounts. Subject to the terms of bank resolutions, if any, adopted by the
Member with respect to each Company disbursement account, the Member (or authorized representative
of the Member), a manager or a specified officer shall be authorized to sign any check, draft, or
other instrument obligating the Company to pay money in an amount less than the amount specified in
such resolutions as requiring (i) one signature of the Member or a manager or (ii) two signatures
of specified officers. Subject to the terms of bank resolutions, if any, adopted by the Member
with respect to each Company disbursement account, the Member (or authorized representative of the
Member), a manager, or any two specified officers acting together, shall be authorized to sign any
check, draft, or other instrument obligating the Company to pay money in an amount equal to or more
than the amount specified in such resolutions as requiring (i) one signature of the Member or a
manager or (ii) two signatures of specified officers.
6.6 Designation of Authority. The Member may authorize, in a resolution or other
writing, one or more Persons or one or more officers, agents or employees of the Company who may,
in the name and on behalf of the Company, and in lieu of or in addition to the Member, contract
debts or incur liabilities, and sign contracts or agreements (including without limitation,
instruments and documents providing for the acquisition, mortgage or disposition of property of the
Company), and may authorize the use of facsimile signatures of any such Persons, officers, agents
or employees.
6.7 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, if applicable.
6.8 Competing Activities. Neither the Member nor any of its Affiliates shall be
expressly or impliedly restricted or prohibited by virtue of this Agreement or the relationships
created hereby from engaging in other activities or business ventures of any kind or character
whatsoever. Except as otherwise agreed in writing, the Member and its Affiliates shall have the
right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct
competition with the Company.
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ARTICLE VII
DISSOLUTION OF THE COMPANY AND
TERMINATION OF A MEMBER’S INTEREST
TERMINATION OF A MEMBER’S INTEREST
7.1 Dissolution. The Company shall be dissolved upon (i) the adoption of a plan of
dissolution by the Member or (ii) the occurrence of any event required to cause the dissolution of
the Company under the Act. Notwithstanding any other provision of this Agreement, the bankruptcy
of the Member shall not cause the Member to cease to be a member of the Company and upon the
occurrence of such an event, the Company shall continue without dissolution.
7.2 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 7.2, 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 for any loss, damage or claim incurred by
reason of any act or omission performed or omitted by the Covered Person in good faith on behalf of
the Company, except that the Covered Person shall be liable for any such loss, damage or claim if a
final adjudication by a court of competent jurisdiction establishes that the Covered Person derived
an improper personal benefit from the transaction or the Covered Person’s acts or omissions
involved intentional misconduct, fraud or a knowing violation of the law and was material to the
cause of action.
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(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 without limitation information, opinions, reports or
statements as to the value and amount of the 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, then, to the
fullest extent permitted by applicable law, the Covered Person acting under this Agreement shall
not be liable to the Company or 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, replace such
other duties and liabilities of the Covered Person.
8.3 Indemnity. The Company shall indemnify any Covered Person who was or is a party
defendant or is threatened to be made a party defendant, pending or completed action, suit or
proceeding, whether civil, criminal, administrative, or investigative (other than an action by or
in the right of the Company) by reason of the fact that such person is or was a Covered Person of
the Company, or is or was serving at the request of the Company, against expenses (including
attorney’s fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred
in connection with such action, suit or proceeding if the Covered Person acted in good faith and in
a manner such Covered Person reasonably believed to be in or not opposed to the best interest of
the Company, and with respect to any criminal action proceeding, has no reasonable cause to believe
his or her conduct was unlawful. The termination of any action, suit, or proceeding by judgment,
order, settlement, conviction, or upon a plea of “nolo contendere” or its equivalent, shall not in
itself create a presumption that the person did or did not act in good faith and in a manner which
he or she reasonably believed to be in the best interest of the Company, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his or her conduct was lawful.
8.4 Advance Payment of Expenses. The expenses of a Covered Person incurred in
defending a civil or criminal action, suit or proceeding related to such Person’s actions on behalf
of the Company 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 Covered Person to repay the amount if it is ultimately determined by a court of competent
jurisdiction that the Covered Person is not entitled to be indemnified by the Company. The
provisions of this section do not affect any rights to advancement of expenses to which personnel
of the Company other than a Covered Person may be entitled under any contract or otherwise by law.
8.5 Indemnification and Advancement of Expenses for Employees and Agents. The Company
may, to the extent authorized from time to time by the Member, grant rights to indemnification and
to the advancement of expenses to any employee or agent of the Company to the fullest extent of the
provisions of this article with respect to the indemnification and advancement of expenses of any
Covered Person.
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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 Membership Certificates. The Company may issue a certificate to the Member to
evidence the Interest in the Company. The Member or any manager or officer of the Company
authorized by the Member may execute such certificate on behalf of the Company.
9.2 Insurance. The Company may purchase and maintain insurance, to the extent and in
such amounts as the Member shall, in its sole discretion, deem reasonable, on behalf of such
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 Complete Agreement. This Agreement, including any schedules or exhibits hereto,
together with the Articles of Organization to the extent referenced herein, constitutes the
complete and exclusive agreement and understanding of the Member with respect to the subject matter
contained herein. This Agreement and the Articles of Organization replace and supersede all prior
agreements, negotiations, statements, memoranda and understandings, whether written or oral, by the
Member.
9.4 Amendments. This Agreement may be amended only by a writing signed by the Member.
9.5 Applicable Law; Jurisdiction. This Agreement, and the rights and obligations of
the Member, shall be interpreted and enforced in accordance with and governed by the laws of the
State of Missouri without regard to the choice or conflict of laws provisions of Missouri or any
other jurisdiction.
9.6 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 fully effectuate the intent of the Member and the transactions
contemplated herein. Syntax shall yield to the substance of the terms and provisions hereof.
9.7 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.
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9.8 Severability. If any provision of this Agreement, or any application thereof, is
held by a court of competent jurisdiction to be invalid, void, illegal or unenforceable to any
extent, that provision, or application thereof, shall be deemed severable and the remainder of this
Agreement, and all other applications of such provision, shall not be affected, impaired or
invalidated thereby, and shall continue in full force and effect to the fullest extent permitted by
law.
9.9 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 Member.
9.10 No Third Party Beneficiaries. This Agreement is adopted solely by and for the
benefit of the Member and its respective successors and assigns, and except to the extent
specifically provided in Article VIII, 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.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Member has executed this Agreement as of the date first above written.
| PINNACLE ENTERTAINMENT, INC., a Delaware corporation |
||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice President, | ||||
| General Counsel and Secretary | ||||
[SIGNATURE PAGE TO THE
OPERATING AGREEMENT OF PNK (RIVER CITY), LLC]
OPERATING AGREEMENT OF PNK (RIVER CITY), LLC]
S-1
SCHEDULE I
Member’s Name:
|
Pinnacle Entertainment, Inc., | |
| a Delaware corporation | ||
Member’s Address:
|
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ | ||
Member’s Ownership Interest:
|
100% |