EXHIBIT 3.15
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
▇▇▇▇▇▇ MISSISSIPPI GAMING, LLC
THIS AMENDED AND RESTATED OPERATING AGREEMENT is adopted and effective
for all purposes and in all respects on the 17th day of October, 2001, by
Majestic Investor Holdings, LLC, a Delaware limited liability company, as the
sole member of ▇▇▇▇▇▇ Mississippi Gaming, LLC, a Mississippi limited liability
company, pursuant to the provisions of the Mississippi Limited Liability Company
Act.
WHEREAS, the Member created a Mississippi limited liability company by
filing a Certificate of Formation with the Mississippi Secretary of State on
March 29, 2001, and executing an Operating Agreement dated March 29, 2001;
WHEREAS, full management of the limited liability company was vested in
the Member;
WHEREAS, the limited liability company filed a Certificate of Amendment
with the Mississippi Secretary of State to vest full management of the limited
liability company in one or more managers; and
WHEREAS, the Member now desires to reflect such management changes by
amending and restating the Operating Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants herein
contained, the parties agree as follows:
ARTICLE 1
DEFINITIONS
The following terms used in this Operating Agreement shall have the
following meanings:
Section 1.1 ▇▇▇▇▇▇. "▇▇▇▇▇▇" shall mean ▇▇▇ ▇. ▇▇▇▇▇▇, whose address is
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Section 1.2 Capital Contribution. "Capital Contribution" shall mean any
contribution to the capital of the Company in cash or property by a Member
whenever made, including without limitation any payments made by a Member in
satisfaction of any obligation of the Company.
Section 1.3 Certificate of Formation. "Certificate of Formation" shall
mean the Certificate of Formation of ▇▇▇▇▇▇ Mississippi Gaming, LLC as filed
with the Secretary of State of the State of Mississippi as the same may be
amended from time to time.
Section 1.4 Company. "Company" shall mean ▇▇▇▇▇▇ Mississippi Gaming, LLC,
the limited liability company formed by the filing of the Certificate of
Formation in the Office of the Secretary of State of the State of Mississippi.
Section 1.5 Distributable Cash. "Distributable Cash" shall mean all cash,
revenues, and funds received by the Company from Company operations, less the
sum of the following which shall be paid or set aside by the Company: (i) All
principal and interest payments on indebtedness of the Company and all other
sums paid to lenders; (ii) All cash expenditures incurred incident to the normal
operation of the Company's business; and (iii) Such Reserves as the Member deems
reasonably necessary to the proper operation of the Company's business.
Section 1.6 Initial Capital Contribution. "Initial Capital Contribution"
shall mean the initial contribution of the Member to the capital of the Company
pursuant to this Operating Agreement.
Section 1.7 IRC. "IRC" or "Code" shall mean the Internal Revenue Code of
1986, as amended.
Section 1.8 ▇▇▇▇▇. "▇▇▇▇▇" shall mean ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, whose address is
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
Section 1.9 LLC Act. "LLC Act" shall mean the Mississippi Limited
Liability Company Act, as set forth in Section ▇▇-▇▇-▇▇▇ et seq., of the
Mississippi Code Annotated of 1972, as amended, or as the same may be amended
from time to time.
Section 1.10 Limited Liability Company Interest. "Limited Liability
Company Interest" shall mean a Member's share of the profits and losses of the
Company and the right to receive distributions of Company assets.
Section 1.11 Manager. "Manager" shall mean the Persons so named in or
elected pursuant to this Operating Agreement or any successor.
Section 1.12 Member. "Member" shall mean ▇▇▇▇▇▇ Mississippi Gaming, LLC
and each party who may hereafter become a Member pursuant to the provisions of
this Operating Agreement. If a Person is a Member immediately before the
purchase or other acquisition by such Person of a Limited Liability Company
Interest that Person shall have all the rights of a Member with respect to the
purchased or otherwise acquired Limited Liability Company Interest.
Section 1.13 Operating Agreement. "Operating Agreement" shall mean this
Operating Agreement as originally executed and amended from time to time serving
as the "limited liability company agreement" as defined and provided in Sections
79-29-103(i) and ▇▇-▇▇-▇▇▇ of the LLC Act.
Section 1.14 Operating Expenses. "Operating Expenses" shall mean all
expenses relating to the operations of the Company, including without limitation
debt service payments on the loans of the Company, utilities, insurance, taxes
and management fees.
Section 1.15 Person. "Person" or "Entity" shall mean natural persons and
organizations, including without limitation, general partnerships, limited
partnerships, limited liability partnerships, limited liability companies,
professional limited liability companies, corporations, professional
2
corporations, professional associations, trustees, personal representatives,
fiduciaries, or persons performing in any similar capacity, trusts, estates, and
other associations.
Section 1.16 Reserves. "Reserves" shall mean, for any fiscal period,
funds set aside or amounts allocated during such period to reserves that shall
be maintained in amounts deemed sufficient by the Member for working capital and
to pay taxes, insurance, debt service, or other costs or expenses incident to
the ownership of the Company's assets or operation of the Company's business,
together with reasonable capital reserves necessary to repair or replace items
of a capital nature related to properties owned by the Company.
Section 1.17 Withdrawal Event. "Withdrawal Event" shall mean an event
which causes a Person or Entity to cease to be a Member of the Company under the
LLC Act.
ARTICLE 2
FORMATION OF LIMITED LIABILITY COMPANY
Section 2.1 Formation. The Company was formed pursuant to the LLC Act and
commenced on March 29, 2001 upon the filing of its Certificate of Formation in
the Office of the Secretary of State of the State of Mississippi.
Section 2.2 Name. The name of the Company is ▇▇▇▇▇▇ Mississippi Gaming,
LLC, and all business shall be conducted under such name, and title to all
property owned by or leased to the Company shall be held in such name.
Section 2.3 Principal Place of Business. The principal place of business
of the Company within the State of Mississippi shall be ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Company may locate its places of business and
registered office at any other place or places as the Member may from time to
time deem advisable.
ARTICLE 3
PURPOSE OF THE COMPANY
Section 3.1 Permitted Businesses. The business and purposes of the
Company shall be:
(a) To own and operate a casino, hotel and entertainment facility
in Tunica County, Mississippi and all businesses and other activities
related thereto;
(b) Any business permitted by the LLC Act;
(c) To accomplish any lawful business whatsoever, or which shall
at any time appear conducive to or expedient for the protection or
benefit of the Company and its assets;
(d) To exercise all other powers necessary to or reasonably
connected with the Company's business that legally may be exercised by
limited liability companies under the LLC Act; and
3
(e) To engage in all activities necessary, customary, convenient
or incident to any of the foregoing.
ARTICLE 4
NAME AND ADDRESS OF MEMBER
The name and address of the Member is as follows:
Name Address
---- -------
Majestic Investor Holdings, LLC ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ARTICLE 5
MANAGEMENT OF THE COMPANY
Section 5.1 Management.
(a) The initial Managers shall be ▇▇▇▇▇▇ and ▇▇▇▇▇, who shall
serve as Manager, until the particular individual's (i) resignation, (ii)
termination at the will of the Member, or (iii) death. Any vacancy
occurring in the office of a Manager shall be filled as determined by the
Member.
(b) Subject to the following sentence of this paragraph and to any
specific requirement associated with any authority granted by this
Agreement (including, inter alia, any requirement that authorization be
granted or joined in by ▇▇▇▇▇▇ or the Member), each Manager shall alone
hold authority to represent and bind the Company. Notwithstanding the
foregoing, however, no Manager other than ▇▇▇▇▇▇ shall approve any action
outside of the ordinary course of the Company's business.
(c) Paragraph (a) of this Section shall not be construed to
prohibit agents or officers from exercising authority on behalf of the
Company, so long as the agent's authority (i) is explicitly granted by
one or more Managers, and (ii) conveys no more authority than is held by
the granting Manager or Managers.
(d) The Managers shall have authority to create additional
management offices, and may fill such offices and grant such authority as
they deem appropriate.
(e) Additional and substitute Managers may be chosen from time to
time by the Member.
Section 5.2 Liability for Certain Acts. The Manager shall perform his
managerial duties in good faith and in a manner he believes to be in the best
interests of the Company. A Manager who so performs the duties of a Manager
shall not have any liability by reason of being or having been a Manager of the
Company. A Manager does not, in any way, guarantee the return of the Member's
capital contributions or a profit for the Member from the operations of the
Company. A Manager
4
shall not be liable to the Company or to the Member for any loss or damage
sustained by the Company or any Member, except for:
(a) The amount of a financial benefit from or belonging to the
Company received by the Manager to which he is not legally entitled; and
(b) The amount of a loss or damage sustained by the Company or any
Member as a result of an intentional infliction of harm, fraud, deceit,
willful misconduct, wrongful taking, or intentional violation of criminal
law by the Manager.
Section 5.3 Indemnification. The Company shall to the extent of its
assets indemnify and hold harmless the Managers for any liability incurred by a
Manager as a result of his being a Manager of the Company or any acts taken by a
Manager on behalf of the Company, if:
(a) He conducted himself in good faith;
(b) He reasonably believed:
(1) In the case of conduct in his official capacity with
the Company, that his conduct was in the Company's
best interest; and
(2) In all other cases, that his conduct was at least
not opposed to the Company's best interest; and
(c) In the case of any criminal proceeding, he had no reasonable
cause to believe that his conduct was unlawful.
The Company shall indemnify its employees and other agents who are not Managers
to the fullest extent permitted by law, provided that the indemnification in any
given situation is approved by the Member.
ARTICLE 6
RIGHTS AND OBLIGATIONS OF MEMBER
Section 6.1 Limitation of Liability. The Member's liability shall be
limited as set forth in this Operating Agreement, the LLC Act and other
applicable law.
Section 6.2 Company Debt Liability. The Member will not be personally
liable for any debts or losses of the Company beyond the Member's Capital
Contribution except as provided in Section 6.4 herein or as otherwise required
by law.
Section 6.3 Company Books. In accordance with ARTICLE 9 herein, the
Company shall maintain and preserve during the term of the Company, all
accounts, books and other relevant Company documents. The failure of the Company
to observe any formalities or requirements relating to the exercise of its
powers or management of its business or affairs under this Operating Agreement
or the LLC Act shall not be grounds for imposing personal liability on the
Member for liabilities of the Company.
5
Section 6.4 Liability of a Member to the Company. A Member who rightfully
receives the return in whole or in part of his contribution (as defined in
Section ▇▇-▇▇-▇▇▇ of the LLC Act) is nevertheless liable to the Company only to
the extent now or hereafter provided by the LLC Act. A Member who receives a
distribution made by the Company which is either in violation of this Operating
Agreement, or made when the Company's liabilities exceed its assets (after
giving effect to the distribution) is liable to the Company for a period of six
(6) years after the distribution for the amount of the distribution.
ARTICLE 7
CAPITAL CONTRIBUTIONS AND CAPITAL ACCOUNTS
Section 7.1 Initial Capital Contributions. As the Initial Capital
Contribution to the Company, the Member contributed such assets as reflected in
the Company's books and records.
Section 7.2 Additional Contributions. The Member shall not be required to
make any additional capital contributions. From time to time the Member may make
additional contributions if it determines that such additional capital
contributions are appropriate for the conduct of the Company's business.
ARTICLE 8
DISTRIBUTIONS
Section 8.1 Distributions. The Company may distribute the Distributable
Cash at such time as determined by the Member, except as provided in Section
8.2.
Section 8.2 Limitation Upon Distributions. No distribution shall be
declared and paid unless after distribution is made, the Company is able to pay
its debts as they become due in the usual course of business or the assets of
the Company are in excess of all liabilities of the Company, except liabilities
to the Member on account of his contributions.
Section 8.3 Accounting Principles. The Net Profits and Net Losses of the
Company shall be determined in accordance with accounting principles applied on
a consistent basis using the method of accounting adopted by the Company.
Section 8.4 Loans to Company. Nothing in this Operating Agreement shall
prevent the Member from making secured or unsecured loans to the Company by
agreement with the Company.
Section 8.5 Accounting Period. The Company's accounting period shall be
the same as that of the Member.
6
ARTICLE 9
BOOKS, RECORDS, ACCOUNTS, AND RETURNS
Section 9.1 Books. The Company shall maintain at its principal place of
business books of account that accurately record all items of income and
expenditure relating to the business of the Company and that accurately and
completely disclose the results of operations of the Company. Such books of
account shall be maintained in accordance with accounting principles applied on
a consistent basis using the method of accounting adopted by the Company.
Section 9.2 Records. The Company shall maintain at its principal place of
business the following records:
(a) A current list of the full name and last known business and
residence street and mailing address of each Member;
(b) A copy of the Certificate of Formation and all Certificates of
Amendment and Restatements thereof, together with executed copies of any
Powers of Attorney pursuant to which any Certificate has been executed;
(c) Copies of any then effective Operating Agreement;
(d) Copies of the Company's federal, state and local income tax
returns and reports, if any, for the four (4) most recent years;
(e) Unless contained in the Certificate of Formation or the
Operating Agreement, a writing setting out: (i) the amount of cash and a
description and statement of the agreed value of the other property or
services contributed by the Member and which the Member has agreed to
contribute; (ii) the times at which or events on the happening of which
any additional contributions agreed to be made by the Member are to be
made; and (iii) any events upon the happening of which the Company is to
be dissolved and its affairs wound up.
Section 9.3 Bank Accounts. The Company shall establish and maintain one
or more separate accounts in the name of the Company in one or more federally
insured depository institutions into which shall be deposited all funds of the
Company and from which all Company expenditures and other disbursements shall be
made. Funds may be drawn from such accounts on the signatories of those
individuals designated by the Member.
ARTICLE 10
ASSIGNMENT OF INTEREST
The Member may assign all or any part of its Limited Liability Company
Interest, and upon such assignment the assignee shall be admitted as a Member.
7
ARTICLE 11
ADMISSION AND WITHDRAWAL
Section 11.1 Admission of Additional Members. The Company may admit an
additional Member upon the consent of the Member. Upon the admission of an
additional Member, the Members shall amend and restate this Operating Agreement.
Section 11.2 Financial Adjustments. No new Member shall be entitled to
any retroactive allocation of losses, income, or expense deductions incurred by
the Company. The Company may, at the time a new Member is admitted, close the
Company books (as though the Company's tax year had ended) or make pro rata
allocations of loss, income and expense deductions to a new Member for that
portion of the Company's tax year in which a new Member was admitted in
accordance with the provisions of IRC 706(d) and the Treasury Regulations
promulgated thereunder.
ARTICLE 12
DISSOLUTION AND TERMINATION
Section 12.1 Dissolution.
(a) The Company shall be dissolved upon the occurrence of the
following:
(1) The Member's written consent;
(2) Upon the date specified in the Certificate of Formation
filed in the Office of the Secretary of State of the
State of Mississippi; or
(3) Upon the occurrence of any Withdrawal Event.
(b) As soon as possible following the occurrence of any event
effecting the dissolution of the Company, a Certificate of Dissolution
shall be filed in the Office of the Secretary of State of the State of
Mississippi.
Section 12.2 Effect of Filing of Certificate of Dissolution. Upon the
filing the Certificate of Dissolution with the Secretary of State of the State
of Mississippi, the Company shall cease to carry on its business, except insofar
as may be necessary for the winding up of its business, but its separate
existence shall continue until a Certificate of Cancellation has been filed with
the Secretary of State of the State of Mississippi as required under the LLC Act
or until a decree dissolving the Company has been entered by a court of
competent jurisdiction.
Section 12.3 Winding Up, Liquidation, and Distribution of Assets. Upon
dissolution, an accounting shall be made of the accounts of the Company and of
the Company's assets, liabilities and operations, from the date of the last
previous accounting until the date of dissolution. The Company shall immediately
proceed to wind up the affairs of the Company. If the Company is dissolved and
its affairs are to be wound up, it shall:
(a) Sell or otherwise liquidate all of the Company's assets as
promptly as practicable (except to the extent any assets may be
distributed to the Member in kind);
8
(b) Discharge all liabilities of the Company, to the extent
otherwise permitted by law, other than liabilities to the Member for
distributions, and establish such Reserves as may be reasonably necessary
to provide for contingencies or liabilities of the Company;
(c) Distribute the remaining assets to the Member.
(d) Upon completion of the winding up, liquidation, and
distribution of the assets, the Company shall be deemed terminated.
(e) The Member shall comply with any applicable requirements of
applicable law pertaining to the winding up of the affairs of the Company
and the final distribution of its assets.
Section 12.4 Certificate of Cancellation. When all debts, liabilities and
obligations have been paid and discharged or adequate provisions have been made
therefor and all of the remaining property and assets have been distributed to
the Member, an executed Certificate of Cancellation shall be filed with the
Secretary of State of the State of Mississippi as required under the LLC Act.
Upon the filing of the Certificate of Cancellation the existence of the Company
shall cease, except for the purpose of suits, other proceedings and appropriate
action as provided in the LLC Act. The Member shall have authority to distribute
any Company property discovered after dissolution, convey real estate and take
such other action as may be necessary on behalf of and in the name of the
Company.
ARTICLE 13
MISCELLANEOUS
Section 13.1 Amendments. This Operating Agreement may not be amended
except by the written agreement of the Member and the Company.
Section 13.2 Execution of Additional Instruments. The Member hereby
agrees to execute such other and further statements of interest and holdings,
designations, powers of attorney, and other instruments necessary to comply with
any laws, rules, or regulations.
Section 13.3 Construction. Whenever the singular number is used in this
Operating Agreement and when required by the context, the same shall include the
plural and vice versa, and the masculine gender shall include the feminine and
neuter genders and vice versa.
Section 13.4 Headings. The headings in this Operating Agreement are for
convenience only and are in no way intended to describe, interpret, define, or
limit the scope, extent or intent of this Operating Agreement or any of its
provisions.
Section 13.5 Waivers. The failure of any party to seek redress for
violation of or to insist upon the strict performance of any covenant or
condition of this Operating Agreement shall not prevent a subsequent act, that
would have originally constituted a violation, from having the effect of an
original violation.
9
Section 13.6 Rights and Remedies Cumulative. The rights and remedies
provided by this Operating Agreement are cumulative and the use of any one right
or remedy by any party shall not preclude or waive the right to use any or all
other remedies. Said rights and remedies are given in addition to any other
rights the parties may have by law, statute, ordinance or otherwise.
Section 13.7 Severability. If any provision of this Operating Agreement
or its application to any person or circumstance shall be invalid, illegal or
unenforceable to any extent, the remainder of this Operating Agreement and its
application shall not be affected and shall be enforceable to the fullest extent
permitted by law.
Section 13.8 Heirs, Successors and Assigns. Each and all of the
covenants, terms, provisions, and agreements contained in this Operating
Agreement shall be binding upon and inure to the benefit of the parties hereto
and, to the extent permitted by this Operating Agreement, their respective
heirs, legal representatives, successors and assigns.
Section 13.9 Counterparts. This Operating Agreement may be executed in
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
Section 13.10 Creditors. None of the provisions of this Operating
Agreement shall be for the benefit of or enforceable by any creditors of the
Company.
Section 13.11 Applicable Law. The affairs of the Company and the conduct
of its business shall be governed by the provisions of this Operating Agreement
to the extent such provisions are not in conflict with the LLC Act or the
Certificate of Formation of the Company. This Operating Agreement, and the
application and interpretation thereof, shall be governed exclusively by its
terms and by the laws of the State of Mississippi.
10
CERTIFICATE
The undersigned hereby agree, acknowledge, and certify that the foregoing
Operating Agreement, consisting of 12 pages, excluding the attached Schedule,
constitutes the Operating Agreement of ▇▇▇▇▇▇ Mississippi Gaming, LLC adopted by
the sole Member of the Company as of October 17th, 2001.
MAJESTIC INVESTOR HOLDINGS, LLC
By: Majestic Investor, LLC, its sole member
By: The Majestic Star Casino, LLC, its sole member
By: ▇▇▇▇▇▇ Development, Inc., its sole member
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇, President
MEMBER
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
MANAGERS
11