EXHIBIT 3.17
AMENDED AND RESTATED OPERATING AGREEMENT OF
LRG HOTELS, L.L.C.
THIS AMENDED AND RESTATED OPERATING AGREEMENT (this "Agreement"),
effective as of March 15, 1997, is entered into by and among CSNO, Inc. and LRGP
Holdings, Inc. (individually, a "Member" and collectively, the "Members"), each
appearing through its undersigned officer who personally appeared before the
respective Notaries Public on the dates stated below and declared under oath
that they recite and agree as follows:
1. Formation
The then-Members of the Company executed that certain Operating
Agreement dated as of June 30, 1993, as amended by First Amendment to Operating
Agreement effective as of July 2, 1996. The Members hereby amend and restate
the June 30, 1993 Operating Agreement, as amended, in full, hereby
reestablishing the terms of the operation of LRG Hotels, L.L.C. (the "Company"),
a Louisiana limited liability company, pursuant to Title 12, Chapter 22 of the
Louisiana Revised Statutes, the Louisiana Limited Liability Company law (the
"LaLLCL"). They unconditionally ratify, confirm and adopt the Articles of
Organization dated June 23, 1993, as amended by Articles of Amendment to the
Articles of Organization dated August 6, 1996 (collectively, the "Articles") and
the Initial Report of the Company executed on June 23, 1993, as amended by
Amended Initial Report executed contemporaneously with this Agreement, in full.
2. Principal Place of Business
Both the registered office in Louisiana and the principal business
office of the Company (the "Principal Business Office") shall be located at 3033
Hilton Drive, Bossier City, Louisiana 71111, or at such other location as may be
designated by the Members from time to time.
3. Release of Organizer
With their adoption of the Articles and the Initial Report, the
Members hereby unconditionally ratify, confirm and adopt all actions of the
Organizer to date. They further relieve the Organizer of any further duties or
obligations to the Company as of the date of this Agreement and agree that the
Company shall, and hereby does, fully
release, indemnify and hold the Organizer harmless from and against any loss,
claim or other liability the Organizer may incur at any time as a result of the
Organizer's service to the Company.
4. Accounting and Reports for the Company
(a) Records and Accounting. The books and records of the Company
shall be kept, and the financial position and the results of its operations
recorded, in accordance with the accounting methods selected by the Directors
from time to time, and if not so selected, the books and records shall be
maintained in accordance with generally accepted accounting principles
consistently applied. The books and records of the Company shall reflect all
the Company's transactions and shall be appropriate and adequate for the
Company's business. The accounting year of the Company for financial reporting
and for federal income tax purposes shall be consistent with that of the
Members.
(b) Access to Accounting Records. All books, records, files,
securities and other documents or information maintained by the Company shall be
maintained at the Principal Business Office or at any other office of the
Company agreed to by the Directors, and each Member, as well as its duly
authorized representative, shall have access to all books and records at the
offices of the Company and the right to inspect and copy them at reasonable
times and upon reasonable notice. Notwithstanding the foregoing, each Member
shall have the inspection rights granted by, and the Company shall maintain at
its registered office the records listed in, Section 1319 of the LaLLCL.
(c) Outside Consultants. The Company may obtain the services of
outside accountants, attorneys and other consultants.
(d) Reports. The Company shall use its best efforts to send the
following information to each person who was a Member at any time during the
year then ended:
(1) Such tax information regarding all items attributable to the
Company as shall be necessary for inclusion in federal income tax returns
by the Members.
(2) The balance sheet of the Company as of the end of such year and
statements of operations and changes in Members' capital contributions,
prepared in accordance with the accounting method selected. The
information shall also set forth distributions to the Members for the
period
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covered thereby and the amount of any distributions released from
reserves established in prior periods.
5. Membership Interests and Capital Accounts
(a) Membership Interests and Organization. Exhibit A to this
Agreement states (1) the relative interests of each Member (the "Membership
Interests") in the Company, and (2) the initial contribution of cash or property
of each Member.
(b) Certificates for Membership Interests. The Membership Interests
shall not be represented by any certificate of membership or other evidence of
membership other than the Articles and this Agreement.
(c) Addition to or Withdrawal of Capital Contributions. Additional
capital may be contributed to the Company, or capital may be withdrawn, but only
as authorized by appropriate administrative actions under this Agreement.
(d) Capital Accounts. The capital accounts of the Members shall
initially be set as determined by the accountants for the Company or by written
unanimous consent of the Members, and a Member's capital account shall, from
time to time, be:
(1) Increased by:
(A) Any additional capital contributions of the Member as authorized
by appropriate administrative actions under this Agreement;
(B) The Member's share of profits of the Company, determined pursuant
to this Agreement, during each fiscal year, whether or not
distributed; and
(C) The agreed fair market value of any property (less liabilities
assumed by the Company) contributed by the Member; or
(2) Decreased by:
(A) All distributions, whether of the capital or income, to or for
the account of the Member (other than payments received by the
Member in repayment of any loan);
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(B) The Member's share of losses of the Company determined during
each fiscal year pursuant to this Agreement; and
(C) The agreed fair market value of any property (less liabilities
assumed by the Member) distributed by the Company to the Member.
The foregoing provisions are intended to comply with the provisions contained in
Treasury Regulations 1.704-1(b)(2)(iv) under the Internal Revenue Code of 1986,
as amended (the "Internal Revenue Code"), and capital accounts shall be
maintained in accordance with these provisions.
6. Administrative Provisions
(a) Directors. All powers shall be vested in, and the business and
affairs of the Company shall be managed by, a Board of Directors of not less
than three, nor more than seven. At each annual meeting, the Members shall
determine the number of Directors. The number of Directors may be increased by
the Members or by the Directors or may be decreased by the Members, or in the
event of any vacancy or vacancies, by the Directors to eliminate such vacancies.
Any decrease in the number of Directors by the Members shall have the effect of
terminating the term of office of all Directors unless the effect of such
decrease is merely to eliminate a vacancy or vacancies. If such decrease
terminating the term of office of all Directors is effected at a meeting of
Members, the new Directors shall be elected at such meeting. Each Director
shall hold office until the annual meeting held next after his election and
until his successor shall have been elected and qualified, until he shall resign
or until he shall have been removed by the Members in the manner provided by
law.
(b) Vacancies. If a vacancy on the Board of Directors occurs by
reason of death, resignation, removal or otherwise or if a newly created
directorship results from an increase in the number of Directors, such vacancy
may be filled for the unexpired term by a majority vote of the Directors then in
office or by the sole remaining Director, although less than a quorum exists.
Each person so elected shall be a Director until his successor is elected by the
Members, who may make such election at their next annual meeting or any special
meeting duly called for that purpose.
(c) Meetings of Directors. Regular meetings of the Directors shall be
held at such time and place as may from time to time be determined by the
Directors. No notice need be given of any regular meeting. Special meetings of
the Directors may be held at such time and place as may be designated in the
notice or the waiver of notice
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of the meeting. Special meetings of the Directors may be called by the Chairman
of the Board, the President, by any two (2) Directors, or by any one (1)
Director when there are two (2) Directors or less then serving. Unless notice
shall be waived by all Directors, notice of any special meeting (including a
statement of the purposes thereof) shall be given to each Director at least
twenty-four (24) hours in advance of the meeting if oral or two (2) days in
advance of the meeting if by mail, telegraph or other written communication.
Attendance at a meeting by any Director, without objection in writing by him,
shall constitute his waiver of notice of such meeting. A majority of the total
number of Directors shall constitute a quorum for the transaction of business;
provided, however, that if any vacancies exist by reason of death, resignation,
removal or otherwise, a majority of the remaining Directors shall constitute a
quorum for the purpose of filling of such vacancies.
(d) Disclosure to Gaming Regulatory Authorities. Each Director must
agree to provide such background information, including a financial statement,
and consent to such background investigation, as may be required by gaming
regulatory authorities of any state or other jurisdiction in or subject to which
the Company does or proposes to do business, and must agree to respond to
questions from such gaming regulatory authorities. If any Director is unwilling
or unable to obtain within a reasonable period of time any necessary approval by
gaming regulatory authorities in any such state or other jurisdiction, then such
Director shall, if so requested by a majority of the remaining Directors, resign
as a Director. If and to the extent required by the gaming regulatory
authorities of any state or other jurisdiction in which the Company does or
proposes to do business, or of any state or jurisdiction whose laws or
regulations are otherwise applicable to the Company, such Director shall abstain
from participating in any action with respect to operations of the Company in
such state or jurisdiction pending such background check or approval.
(e) Officers. The Company shall have officers elected by the
Directors. Each of the officers shall have all such powers, responsibilities and
obligations as are associated by custom or statute with their respective offices
under the Louisiana Business Corporation Law. The officers shall not, however,
be managers under the LaLLCL.
(f) Authorizing Action. Any action to be taken by the Members under
the LaLLCL or this Agreement may be taken (1) at a meeting of the Members, held
on such terms and after notice required by this Agreement, or (2) by written
action of the Members. No notice need be given of any action proposed to be
taken by written action, or an approval given by written action, unless
specifically required by the LaLLCL or this Agreement. Copies of all written
actions must be kept with the records of the Company.
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(g) Meetings. Meetings of the Members hereunder will be held upon no
less than seven (7) and no more than forty-five (45) days prior to written
notice delivered in accordance with this Agreement. Any Member may vote at any
meeting in person or by proxy. Participation in any meeting of the Members may
be in person or by telephone. Notice of any meeting may be waived in writing,
either before or after the meeting. The presence of a Member at any meeting
shall constitute a waiver of notice and the form thereof, unless a Member's
presence at such meeting is solely for the purpose of objecting to the form of
notice or the holding of a meeting without proper notice.
(h) Certificates of Authority. In accordance with Section
12:1305(C)(5) of the LaLLCL, each of the Members, the Directors, the Secretary
and the Assistant Secretary is authorized to execute any certificate confirming
the membership of any Member (including that of the certifying Member), the
authenticity of any records of the Company or the identity of any Member,
Director, manager, person or entity authorized to take action on behalf of the
Company. Any person dealing with the Company may rely conclusively on any
certificate executed by a Member, Director, the Secretary or the Assistant
Secretary and shall not have any obligation to investigate or verify the
statements in the certificate or the Member's, Director's, the Secretary's or
the Assistant Secretary's authority to execute the certificate. This conclusive
right to rely applies even in the case of actions listed in Section 1318(B) of
the LaLLCL.
(i) Indemnification. The Company shall, and hereby does, fully
release, indemnify and hold any Member, Director, officer, employee or agent of
the Company harmless from and against any loss, claim or other liability the
Member, Director, officer, employee or agent of the Company may incur at any
time as a result of the indemnitee's service to the Company, to the fullest
extent permitted or required by the LaLLCL, as amended from time to time. The
Company may advance expenses incurred by the indemnitee by appropriate
administrative action under this Agreement following the Company's receipt of
the indemnitee's agreement to reimburse the Company for the advance in the event
of a determination that the indemnitee is not entitled to indemnification by the
Company.
(j) Admission of Additional Members. The Members may admit to the
Company additional Members who will participate in the profits, losses, cash
available for distributions, and ownership of the assets of the Company only by
joint action of the Members.
7. Profit or Losses
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The net profits or the net losses (and any separately stated items,
including without limitation, depreciation, amortization and tax credits) of the
Company shall be allocated to the Members, pro-rata in accordance with their
Membership Interests in the Company.
8. Distributions
From time to time, the Directors may authorize the Company to make
distributions to the Members for the purpose of defraying the annual tax
liability caused by the Company's profits. The Company may make other
distributions to the Members if the Members approve such distributions by joint
action. Any distributions shall be made pro-rata to the Members in accordance
with their Membership Interests in the Company.
9. Dissolution
(a) Events Causing Dissolution. The following events (each a
"Dissolution Event") shall cause a dissolution of the Company:
(1) The consent of the Members by joint action.
(2) The withdrawal, expulsion, bankruptcy or dissolution of a Member,
the sale or redemption of a Member's entire Membership Interest, or the
occurrence of any other event which terminates the continued membership of
a Member in the Company pursuant to the LaLLCL.
(3) The entry of a judicial decree of dissolution under Section 1335
of the LaLLCL.
(b) Continuation of the Company. In certain circumstances after a
Dissolution Event, the remaining Members may choose to continue the Company and
the Company shall continue, uninterrupted by the Dissolution Event, as if the
Dissolution Event had not occurred. The remaining Member shall not have this
option after the entry of a judicial decree of dissolution. The remaining
Member may exercise the option only within 90 days after the Dissolution Event
and only if the remaining Member admits at least one additional Member, if the
LaLLCL so requires.
(c) Winding Up the Company. Upon dissolution, the Members shall wind
up the Company and liquidate its assets and liabilities according to Sections
1336
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through 1341 of the LaLLCL. After the Dissolution Event and until completion of
the winding up, the Members may continue to conduct the business of the Company
pursuant to the Administrative Provisions of this Agreement. However, the
Company shall not conduct any business that is inimical to the winding up of the
Company. The Members shall at all times retain the maximum limitation of
liability with respect to claims against the Company as is allowed by the
LaLLCL. This limitation of liability shall not be diminished by the fact that
Members have not formally commenced the winding up of the Company after a
Dissolution Event. Any action taken by a Member that has the effect of reducing
the limitation of liability available under the LaLLCL shall have no effect, and
shall be null and void ab initio unless all Members consent to it.
(d) Gains or Losses in Winding Up. Any gains or losses on disposition
of Company properties in the process of liquidation will be credited or charged
to the Members in the proportion of their Membership Interests. Any property
distributed in kind in the winding up must be valued and treated as though the
property were sold and the cash proceeds were distributed. The difference
between the value of the property distributed in kind and its book value will be
treated as a gain or loss on the sale of the property and credited or charged to
the Members in proportion to their Membership Interests.
10. Restrictions on Transfers of Interests
(a) Transfers Limited. Except as expressly permitted herein, Members
shall not sell, assign, transfer, mortgage, charge or otherwise encumber, or
suffer any third party to sell, assign, transfer, mortgage, charge or otherwise
encumber, or contract to do or permit any of the foregoing, whether voluntarily
or by operation of law (herein sometimes collectively called a "transfer"), any
part or all of their Membership Interests.
(b) Permitted Transfers. Notwithstanding the limitation on transfers
stated in this Agreement, a Member may from time to time transfer all or any
portion of the Member's Membership Interest, if the transfer (1) would not
result in a "termination" under Section 708 of the Internal Revenue Code, (2)
would not leave the Company with fewer than two Members, if the LaLLCL so
requires, and (3) is to any of the following (collectively, "Permitted
Transferees"):
(A) A transferee approved by the other Member,
(B) One or more of the affiliates of a Member (controlled by or under
common control with the Member) at the time of the transfer, or
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(C) Any other legal entity in which all of the interests are, and
will continue to be, owned by the Member or one or more such
affiliates .
The approval of a transferee in any one or more instances shall not limit or
waive the need for such approval in any other or subsequent instances.
(c) Transferee. If a transfer occurs by operation of law or contrary
to this Agreement's prohibition on certain transfers, and the transferee is not
a Permitted Transferee, the transferee shall not have any right to participate
in the management of the business and affairs of the Company or become a Member.
For purposes of voting, the Membership Interest of the transferring Member shall
not be counted in determining whether votes of the Members constitute joint
actions. A transferee shall only be entitled to receive the share of profits or
other compensation by way of income and the return of contributions to which the
transferring Member would otherwise be entitled. Additionally, the transfer
shall not relieve a transferring Member of any liability hereunder.
(d) Substituted Member. A substituted Member is a person who has been
admitted to all the rights of a Member who has transferred or assigned its
Membership Interests in the Company as provided for herein. The substituted
Member has all the rights and powers and is subject to all the restrictions and
liabilities of his assignor.
(e) Additional Limitations. As a condition to the effectiveness of a
transfer to a Permitted Transferee, the Permitted Transferee shall execute a
ratification of this Agreement and shall deliver it to the other Members. The
other Members may also impose other conditions of transfer and require the
execution and delivery of other agreements as they reasonably determine to be
necessary to avoid the violation of any federal and state law with respect to
the transfer and to evidence the transferee's agreement to be bound by this
Agreement.
11. General Provisions
(a) Choice of Law. The validity of this Agreement is to be determined
under, and the provisions of this Agreement are to be construed in accordance
with, the laws of the State of Louisiana.
(b) Binding Effect. This Agreement is to be binding upon, and inure
to the benefit of the successors and permitted assigns of the Members.
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(c) Gender and Plurality. Wherever applicable, the pronouns
designating the masculine or neuter will equally apply to the feminine, neuter
or masculine genders. Furthermore, wherever applicable within this Agreement,
the singular will include the plural and vice versa. The term "person" when
used herein shall include a natural person and all forms of entities, including,
without limitation, a corporation, trust, association, partnership, limited
partnership, partnership in commendam, limited liability company or limited
liability partnership.
(d) Notices. All notices, demands, and other writings required
herein, or delivered in connection herewith, may be either delivered in person
or by private courier (which shall be effective upon delivery), by facsimile or
similar communication (which shall be effective upon confirmation of delivery on
the sender's facsimile machine or other communication device), or by prepaid
registered or certified mail (which shall be effective five business days after
being so mailed) to the addresses or facsimile numbers for notice set forth as
follows:
CSNO, Inc.
711 Washington Loop
Biloxi, Mississippi 39530
LRGP Holdings, Inc.
711 Washington Loop
Biloxi, Mississippi 39530
These addresses or facsimile numbers shall continue to constitute the
appropriate ones for notices under this Agreement until the receiving Member
notifies each other Member in writing of a change.
(e) Captions. Article, section and paragraph captions and head notes
are for reference purposes only and will not be considered to affect context.
(f) Severability. If any part of this Agreement is found by a court
of competent jurisdiction to be void, against public policy or otherwise
unenforceable, the part shall be reformed by the court to the extent necessary
to make such provision enforceable. If the entire provision is deemed
unenforceable by the court, the provision shall be deleted. In either event,
this Agreement and each of the remaining provisions of it, as so amended, shall
remain in full force and effect.
(g) Integration. Both this Agreement and the Articles embody the
entire agreement and understanding among the Members and supersede all prior
agreements and
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understandings, if any, among and between Members relating to the subject matter
hereof.
(h) Counterparts. This Agreement may be executed in several
counterparts and that all counterparts so executed are to constitute one
agreement binding all Members, notwithstanding the fact that all Members are not
signatories to the original or to the same counterpart. Any party hereto may
execute this Agreement by facsimile signature or similar form of communication,
and such signature shall be legal and valid for all purposes. Each party so
executing this Agreement shall promptly sign an original hereof and deliver the
originally signed document to the other Member.
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THUS DONE AND PASSED, on the date stated below, before me, the
undersigned Notary Public, duly commissioned and qualified in and for the parish
or county and the state of the Notary's jurisdiction as stated below, by the
personal appearance of CSNO, Inc., as Member, appearing through its undersigned
officer, who acknowledged and declared under oath, in the presence of the two
undersigned witnesses, that the Member signed this Agreement as the Member's
free act and deed for the purposes stated herein.
CSNO, INC.
/s/ Kyra H. Monk /s/ Allan B. Solomon
- ----------------------------- ---------------------------------------
Witness Allan B. Solomon
Executive Vice President, General
Counsel and Secretary
/s/ Witness
- -----------------------------
Witness
September 15, 1997
---------------------------------------
Date
/s/ Michelle Annette Goodman
----------------------------
NOTARY PUBLIC
Notary's jurisdiction: Mississippi
-------------------------------------
Term expires: December 21, 1997
----------------------------------------------
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THUS DONE AND PASSED, on the date stated below, before me, the
undersigned Notary Public, duly commissioned and qualified in and for the parish
or county and the state of the Notary's jurisdiction as stated below, by the
personal appearance of LRGP Holdings, Inc., as Member, appearing through its
undersigned officer, who acknowledged and declared under oath, in the presence
of the two undersigned witnesses, that the Member signed this Agreement as the
Member's free act and deed for the purposes stated herein.
LRGP HOLDINGS, INC.
/s/ Kyra H. Monk /s/ Allan B. Solomon
- ----------------------------- ---------------------------------------
Witness Allan B. Solomon
Executive Vice President, General
Counsel and Secretary
/s/ Witness
- -----------------------------
Witness
September 15, 1997
---------------------------------------
Date
/s/ Michelle Annette Goodman
----------------------------
NOTARY PUBLIC
Notary's jurisdiction: Mississippi
-------------------------------------
Term expires: December 21, 1997
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EXHIBIT A TO AMENDED AND RESTATED
OPERATING AGREEMENT OF
LRG HOTELS, L.L.C.
Current Membership Interests
Member Percentage Contribution
CSNO, Inc. 50 $1,000.00
LRGP Holdings, Inc. 50 $1,000.00
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