EXHIBIT 3.2.1
LIMITED LIABILITY COMPANY AGREEMENT
OF
▇▇▇▇▇ CASINO HOLDINGS, LLC
This Limited Liability Company Agreement ("Agreement"), dated as of May 8,
2002 relates to the operation of ▇▇▇▇▇ Casino Holdings, LLC, a Delaware limited
liability company (the "Company") formed on April 24, 2002 pursuant to the
provisions of the Delaware Limited Liability Company Act (Chapter 18, Title 6 of
the Delaware Code) (the "Act"), of which ▇▇▇▇▇ Hotels & Casino Resorts Holdings,
L.P., a Delaware limited partnership shall be the sole member (the "Member").
1. Name. The name of the Company is ▇▇▇▇▇ Casino Holdings, LLC, or such
other name as the Member, from time to time, may determine and register in the
Office of the Secretary of State of the State of Delaware.
2. Principal Office. The principal office of the Company shall be ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ or such other place within or outside
the State of Delaware as may be designated by the Member.
3. Filings. The Member, the Board of Directors, authorized officers, or
their attorney in fact, from time to time are authorized to execute,
acknowledge, verify, file, record and publish, or cause to be executed,
acknowledged, verified, filed, recorded and published, all such applications,
certificates and other documents, and do or cause to be done all such other
acts, as the Member or such other persons may reasonably deem necessary or
appropriate to comply with the requirements of law for the formation,
qualification and operation of the Company as a limited liability company in all
jurisdictions in which the Company shall desire to conduct business.
4. Purpose. The purposes of the Company shall be (i) to perform and/or
engage in any lawful business, purpose or activity permitted by the Act,
including, without limitation, the ownership and control directly or indirectly,
of entities engaged in legalized casino gaming activities and (ii) to enter
into, make and perform all contracts, agreements and other undertakings and to
do all other things necessary, suitable, desirable or proper for the
accomplishment of, or in furtherance of, any of such purposes and to do every
other act or acts incidental to, or arising from, or connected with, any of such
purposes.
5. Term. The term of the Company commenced on the date the Company filed
its Certificate of Formation and shall continue in existence until dissolved in
accordance with the Act.
6. Name and Capital Contributions of Member. The name of the initial and
sole Member of the Company is ▇▇▇▇▇ Hotels & Casino Resorts Holdings, L.P. As of
the date
hereof, the Member has contributed $100.00 as its initial capital contribution
to the Company in exchange for a one hundred percent (100%) membership interest.
The Member may make additional contributions to the capital of the Company as
the Member, in its sole discretion, may determine and such contributions may be
in cash or in kind, including equity interests in casino gaming entities. No
additional members shall be admitted to the Company without the prior approval
of the Member.
7. Membership Certificates. Ownership of a membership interest in the
Company may be evidenced by the issuance of a membership certificate in the form
approved by the Board. Ownership may be transferred by the endorsement and
delivery of such certificate subject to Article 11 hereof and applicable law.
8. Operation of the Company.
A. The rights and obligations of members of the Company, the
management of its affairs, the conduct of its business, its dissolution and all
other matters shall be governed hereby and by the Act.
B. The powers of the Company shall be exercised by, and the business
and affairs of the Company shall be managed by, a Board of Directors (the
"Board") who, collectively, shall have the powers of a "manager" of the Company
within the meaning of Section 18-101(10) of the Act. The Board of Directors, (i)
shall have and exercise all powers necessary, convenient or incidental to
accomplish the purposes of the Company and (ii) shall have and exercise all of
the powers and rights conferred upon limited liability companies formed pursuant
to the Act.
9. Management.
A. Board of Directors. The business and affairs of the Company shall
be managed by or under the direction of the Board. The Board shall initially
consist of one (1) Director, and thereafter shall consist of such number, up to
five (5) Directors, as may be fixed from time to time by resolution of the
Board. Each Director elected to the Board shall hold office until a successor is
elected and qualified or until such Director's earlier death, resignation,
expulsion or removal. The initial Director designated by the Member is listed on
Schedule A appended hereto.
i. Meetings of the Board of Directors. The Board of
Directors of the Company may hold meetings, both regular and special, within or
outside the State of Delaware. Regular meetings of the Board may be held without
notice at such time and at such place as shall from time to time be determined
by the Board. Special meetings of the Board may be called by the President or
any Directors on not less than one day's notice to each Director by telephone,
facsimile, mail, e-mail, telegram or any other means of communication.
ii. Quorum; Acts of the Board. At all meetings of the
Board, a majority of the Directors shall constitute a quorum for the transaction
of business and, except as otherwise provided in any other provision of this
Agreement, the act of a majority of the Directors present at any meeting at
which there is a quorum shall be the act of the Board. If a quorum shall not be
present at any meeting of the Board, the Directors present at such meeting
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may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present. Any action
required or permitted to be taken at any meeting of the Board may be taken
without a meeting and without notice if a majority of the members of the Board
consent thereto in writing.
iii. Electronic Communications. Members of the Board may
participate in meetings of the Board, or any committee, by means of telephone
conference or similar communications equipment that allows all persons
participating in the meeting to hear each other, and such participation in a
meeting shall constitute presence in person at the meeting. If all the
participants are participating by telephone conference or similar communications
equipment, the meeting shall be deemed to be held at the principal place of
business of the Company.
iv. Waiver. Attendance of a Director at any meeting shall
constitute a waiver of notice of such meeting, except where a Director attends
for the express purpose of objecting to the transaction of any business because
the meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the Board
need be specified in the notice or waiver of notice of such meeting.
v. Compensation of Directors; Expenses. The Board shall
have the authority to fix the compensation of Directors, provided, however, that
no Director who is also an employee or affiliate of the Company or its
affiliates shall receive any compensation for serving as a Director of the
Company. The Directors may be paid their out of pocket expenses, if any, of
attendance at meetings of the Board.
vi. Removal of Directors. Unless otherwise restricted by
law, any Director or the entire Board of Directors may be removed or expelled,
with or without cause, at any time by the Member, and any vacancy caused by any
such removal or expulsion may be filled by action of the Member.
vii. Vacancies on the Board. Except as provided in Section
▇.▇.▇▇. above, any vacancy on the Board may be filled by a majority of the
remaining Directors, though less than a quorum, and Directors so elected shall
hold office until a successor is elected and qualified.
viii. Directors as Agents. To the extent of their powers set
forth in this Agreement, the Directors are agents of the Company for the purpose
of the Company's business, and the actions of the Directors taken in accordance
with such powers set forth in this Agreement shall bind the Company.
Notwithstanding the last sentence of Section 18-402 of the Act, except as
provided in this Agreement or in a resolution of the Directors, a Director may
not bind the Company in his capacity as such.
B. Officers. The initial Officers of the Company shall be designated
by the Board and shall serve at its pleasure. Any number of offices may be held
by the same person. The Board may appoint such additional Officers as it shall
deem necessary or advisable who shall hold their offices for such terms and
shall exercise such powers and perform such duties as shall be determined from
time to time by the Board. The Board shall appoint persons to at least
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the following offices:
. President and Chief Executive Officer
. Chief Operating Officer
. Executive Vice President, Chief Financial Officer, Corporate
Treasurer and Secretary
Such Officers shall have the power and authority conferred on officers of
business corporations with like title organized under the Delaware General
Corporation Law. The Officers of the Company shall hold office until their
successors are elected and qualified. Any Officer may be removed at any time,
with or without cause, by the Chairman of the Board or the affirmative vote of a
majority of the Board. Any vacancy occurring in any office of the Company shall
be filled by the Board.
i. Officers as Agents. The Officers, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action
of the Board not inconsistent with this Agreement, are agents of the Company for
the purpose of the Company's business and the actions of the Officers taken in
accordance with such powers shall bind the Company.
ii. Duties of Board and Officers. Except to the extent
otherwise provided herein, each Director and Officer shall have a fiduciary duty
to the Company and its Member to the same extent as would a director and officer
of a business corporation organized under the General Corporation Law of the
State of Delaware.
C. Any person or entity dealing with the Company, a Director or an
Officer may rely upon a certificate signed by a Director or Officer as to:
i. the identity of the Officer or the Director;
ii. the existence or non-existence of any fact or facts
which constitute a condition precedent to acts of the Directors or Officers or
this Company;
iii. the persons or entities authorized to execute and
deliver any instrument or document on behalf of the Company; or
iv. any other matter involving the Company.
10. Distributions. Distributions of cash or property may be made at such
times as the Board deems appropriate; provided however, that the Company shall
not make any distributions if such distributions would violate the Act or other
applicable law or regulation but instead shall make any distribution as soon as
practicable provided that the making of such distribution would not cause such
violation.
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11. Certain Regulatory Matters.
A. New Jersey. This Agreement will be deemed to include all
provisions required by the New Jersey Casino Control Act, N.J.S.A. Sections
5:12-1 et seq., as amended (the "Casino Control Act") and the regulations
thereunder and to the extent that anything contained in this Agreement is
inconsistent with the Casino Control Act, the provisions of the Casino Control
Act shall govern. All provisions of the Casino Control Act, to the extent
required by law, to be included in this Agreement or incorporated herein by
references are hereby fully restated in this Agreement.
i. If the continued holding of a membership interest by
any Member will disqualify the Company to continue as the owner and operator of
a casino license in the State of New Jersey under the provisions of the Casino
Control Act, such Member shall enter into such escrow, trust of similar
arrangement as may be required by the New Jersey Casino Control Commission (the
"Casino Control Commission") under the circumstances. It is the intent of this
Article 11 to set forth procedures to permit the Company to continue, on an
uninterrupted basis, as the owner and operator of a casino license under the
provisions of the Casino Control Act.
ii. (i) All transfers (as defined by the Casino Control
Act) of securities (as defined by the Casino Control Act), shares or other
interest in the Company shall be subject to the right of prior approval by the
Casino Control Commission; and (ii) the Company shall have the absolute right to
repurchase at the market price or purchase price, whichever is the lesser, any
security, share or other interest in the Company in the event that the Casino
Control Commission disapproves a transfer in accordance with the provisions of
the Casino Control Act.
iii. Each Member hereby agrees to cooperate reasonably and
promptly with the others in obtaining any and all licenses, permits or approvals
required by any governmental authority or deemed expedient by the Members in
connection with the Casino Control Act.
iv. Each Member shall have the right to offer to acquire
any membership interest required to be disposed of pursuant to this Article on
the same basis as other potential purchasers subject to the Casino Control Act.
B. Indiana. This Agreement will be further deemed to include all
provisions required by the Indiana Riverboat Gambling Act, Indiana Code Sections
4-33 et seq., as amended (the "Riverboat Gambling Act") and the rules
thereunder. Members may sell, assign, pledge or otherwise transfer or encumber
all or any part of their respective interests in the Company only in accordance
with, and only subject to the restrictions recited in, the Riverboat Gambling
Act and the rules thereunder. All provisions of the Riverboat Gambling Act, to
the extent required by law, to be included in this Agreement or incorporated
herein by references are hereby fully restated in this Agreement.
i. No person may become the beneficial owner of five
percent (5%) percent or more of any class or series of the Company's issued and
outstanding capital stock
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unless such person agrees in writing to: (i) provide to the Indiana Gaming
Commission (the "Gaming Commission") information regarding such person,
including without limitation thereto, information regarding other gaming-related
activities of such person and financial statements, in such form, and with such
updates, as may be required by the Gaming Commission; (ii) respond to written or
oral questions that may be propounded by the Gaming Commission; and (iii)
consent to the performance of any background investigation that may be required
by the Gaming Commission, including without limitation thereto, an investigation
of any criminal record of such person.
ii. The Company shall not issue 5% or greater of any voting
securities or other voting interests in the Company to a person except in
accordance with the Riverboat Gambling Act and the rules thereunder. The
issuance of any voting securities or other voting interests in violation of the
Riverboat Gambling Act or the rules thereunder shall be void and such voting
securities or other voting interests shall be deemed not to be issued and
outstanding, until (a) the Company shall cease to be subject to the jurisdiction
of the Gaming Commission, or (b) the Gaming Commission shall, by affirmative
action, validate said issuance or waive any defect in issuance.
iii. No voting securities or other voting interests issued
by the Company, and no interest, claim or charge of 5% or greater therein or
thereto shall be transferred in any manner whatsoever except in accordance with
the Riverboat Gambling Act and the rules thereunder. Any transfer in violation
thereof shall be void until (a) the Company shall cease to be subject to the
jurisdiction of the Gaming Commission, or (b) the Gaming Commission shall, by
affirmative action, validate said transfer or waive any defect in said transfer.
iv. If the Gaming Commission at any time determines that a
holder of voting securities or other voting interests of the Company shall be
denied the application for transfer, then the issuer of such voting securities
or other voting interests may, within 30 days after the denial, purchase such
voting securities or other voting interests of such denied applicant at the
lesser of (a) the market price of the ownership interest, or (b) the price at
which the applicant purchased the ownership interest; unless such voting
securities or other voting interests are transferred to a suitable person (as
determined by the Gaming Commission) within 30 days after the denial of the
application for transfer of ownership.
v. Until any such voting securities or other voting
interests are owned by persons found by the Gaming Commission to be suitable to
own them, the following restrictions shall apply:
(a) The Company shall not be required or permitted to
pay any dividend or interest with regard to the voting securities or other
voting interests.
(b) The holder of such voting securities or other
voting interests shall not be entitled to vote on any matter as the holder of
the voting securities or other voting interests, and such voting securities or
other voting interests shall not for any purposes be included in the voting
securities or other voting interests of the Company entitled to vote.
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(c) The Company shall not pay any remuneration in any
form to the holder of the voting securities or other voting interests as
provided in the foregoing recitation.
12. Indemnification. The Company shall, to the fullest extent permitted by
the Act, as the same may be amended and supplemented, or by any successor
thereto, indemnify any and all persons whom it shall have power to indemnify
under the Act, including without limitation any Member, Director, Officer,
employee, or agent, from and against any and all of the expenses, liabilities or
other matters for which indemnification is permitted under the Act. The Company
shall advance expenses to the fullest extent permitted by the Act. Such right to
indemnification and advancement of expenses shall continue as to a person who
has ceased to be an officer, employee or agent and shall inure to the benefit of
the heirs, executors and administrators of such a person. The indemnification
and advancement of expenses provided for herein shall not be deemed exclusive of
any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any other agreement. Notwithstanding the
foregoing provisions, the indemnification and advancement of expenses provided
for herein shall not relieve anyone from liability to the extent provided by
applicable law for any breach of duty based upon an act or omission (a) in
breach of such person's duty of loyalty to the Company, (B) not in good faith or
involving a knowing violation of law, or (C) resulting in receipt by such person
of an improper personal benefit. No amendment to or repeal of this Article 12
and no amendment repeal or termination of effectiveness of any law authorizing
this Article 12 shall apply to or have any effect on the liability or alleged
liability of any officer, employee or agent of Member for or with respect to any
acts or omissions of such person occurring prior to such amendment repeal or
termination of effectiveness.
13. Applicable Law. This Agreement and the rights of the Member and the
Company shall be governed by and interpreted in accordance with the laws of the
State of Delaware (without regard to principles of conflicts of laws).
14. Severability. Any provision of this Agreement that is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or enforceability of such
provisions in any other jurisdiction.
15. Amendments. The Member from time to time may amend and/or restate this
Agreement as the Member, in its sole discretion, may deem necessary or
desirable.
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In Witness Whereof, the undersigned has duly executed this Limited
Liability Company Agreement as of the 8th day of May 2002.
SOLE MEMBER:
▇▇▇▇▇ HOTELS & CASINO RESORTS HOLDINGS, L.P.
By: ▇▇▇▇▇ Hotels & Casino Resorts, Inc.
Its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and Secretary
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SCHEDULE A
INITIAL DIRECTOR
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Director and Chairman of the Board
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