1
EXHIBIT 3.02
SECOND AMENDED AND RESTATED
OPERATING AGREEMENT OF
JAZZ CASINO COMPANY, L.L.C.
This Second Amended and Restated Operating Agreement (the "Agreement")
of Jazz Casino Company, L.L.C. (the "Company") is entered into and shall be
effective as of the 29th day of March, 2001, by and between:
JCC Holding Company, a Delaware corporation ("JCC Holding") whose
address is One Canal Place, 000 Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxx,
Xxxxxxxxx 00000; and
Jazz Casino Company, L.L.C., a Louisiana limited liability company,
whose address is One Canal Place, 000 Xxxxx Xxxxxx, Xxxxx 000, Xxx
Xxxxxxx, Xxxxxxxxx 00000;
pursuant to the provisions of the Louisiana Limited Liability Company Law,
LSA-R.S. 12:1301, et seq. (the "Act"), and on the following terms and
conditions:
1. Formation. JCC Holding has caused the Company to be formed as a
limited liability company pursuant to the provisions of the Act, and upon the
terms and conditions set forth in the Articles (as defined below) and this
Agreement.
2. Member. As used in this Agreement, the term "Member" means any
person, including the Initial Member, who is admitted to the Company as a
Member, excluding, however, any person who shall have ceased to be a Member in
compliance with the provisions of this Agreement, the Articles and the Act. The
term "person" means any natural person, corporation, partnership, trust, estate,
joint venture, limited liability company or other entity or association. The
Members are the "members" of the Company for purposes of Section 1301(A)(13) of
the Act. As of the date of this Agreement, the Initial Member is the sole Member
of the Company.
3. Operating Agreement. This Agreement shall be considered the
"operating agreement" of the Company within the meaning of Section 1301(A)(16)
of the Act. The rights and obligations of the Members and the administration and
termination of the Company shall be governed by this Agreement, the Articles and
the Act; provided, however, that to the extent this Agreement is inconsistent in
any respect with the Act, this Agreement shall control.
4. Company Name. The name of the Company shall be Jazz Casino Company,
L.L.C.
5. Purpose. The business and purpose of the Company shall be to engage
in any activity for which limited liability companies may be engaged under
applicable law (including, without limitation, the Act).
1
2
6. Classification For Federal Income Tax Purposes. Pursuant to Treasury
Regulations Section 301.7701-3, it is intended that the Company be an
association taxable as a corporation for federal income tax purposes.
7. Principal Place of Business and Mailing Address. The principal place
of business of the Company shall be located at One Canal Place, 000 Xxxxx
Xxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxx 00000, and the mailing address of the
Company shall be One Canal Place, 000 Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxx,
Xxxxxxxxx 00000. The Members may change the principal place of business and/or
mailing address of the Company to any other place or address, respectively,
within or without the State of Louisiana at any time without an amendment to
this Agreement.
8. Registered Agent and Registered Office. The registered office and
registered agent of the Company in the State of Louisiana shall be as the
Members may designate from time to time.
9. Term. The term of the Company shall commence on the date the
Company's separate existence begins under the Act as a result of the filing of
the articles of organization described in Section 1305 of the Act (together with
any amendments, the "Articles") in the office of the Secretary of State of
Louisiana in accordance with the Act and shall continue in perpetuity unless its
business and affairs are earlier wound up following dissolution at such time as
this Agreement may specify.
10. Membership Interest. The only interest of any Member in the Company
shall be the Member's ownership interest ("Membership Interest"), including any
and all benefits to which the holder of such a Membership Interest may be
entitled under this Agreement, the Articles and the Act, together with all
obligations of such holder to comply with the terms and provisions of this
Agreement, the Articles and the Act.
11. Units of Membership. The aggregate Membership Interest of the
Members in the Company shall be divided into units (collectively, "Units"). A
Unit includes any and all benefits to which the holder of such Unit may be
entitled as provided in this Agreement, together with all obligations of such
holder to comply with the terms and provisions of this Agreement. There shall be
1,000 Units which is the maximum number the Company is authorized to issue. The
percentage interest of a Member in the Company as of any date shall be the ratio
(expressed as a percentage) of the number of Units held by such Member on that
date to the aggregate Units held by all Members on that date (the "Percentage
Interest"). The Units and Percentage Interest of the sole and Initial Member as
of the date of this Agreement are as follows:
Unit Holder No. of Units Held Percentage Interest in Company
----------- ----------------- ------------------------------
JCC HOLDING COMPANY 1,000 100%
2
3
12. Capital Contributions. On the date a Plan of Reorganization under
Chapter 11 of the Bankruptcy Code of Xxxxxx'x Jazz Company, Xxxxxx'x Jazz
Finance Corp. and Xxxxxx'x New Orleans Investment Company was consummated, the
Initial Member contributed to the capital of the Company cash in the amount of
$100.00. The Initial Member shall not be required to make any other or
additional contribution to the capital of the Company but may, in its sole and
absolute discretion, make additional contributions to the capital of the
Company.
13. Management of Company. All decisions relating to the business
affairs and properties of the Company shall be made by the Members. The Members
may appoint a President and one or more Vice Presidents and such other officers
of the Company as the Members may deem necessary or advisable to manage the
day-to-day business affairs of the Company (the "Officers"). The Officers shall
serve at the pleasure of the Members. To the extent delegated by the Members,
the Officers shall have the authority to act on behalf of, bind and execute and
deliver documents in the name and on behalf of the Company. No such delegation
shall cause any Member to cease to be a Member. Such Officers, when and if
appointed by the Members, shall have such authority and responsibility as is
generally attributable to the holders of such offices in limited liability
companies formed under the Act. In addition, until such time as such delegation
of authority is revoked by the Members in their sole and absolute discretion,
the President, when and if appointed by the Members, is hereby authorized to
take any and all actions consistent with the purposes of the Company that he or
she believes is in the best interests of the Company. Notwithstanding any other
provision of this Agreement, the Officers of the Company shall not take or
authorize any action constituting an Affiliate Party Transaction (as defined in
the Amended and Second Restated Certificate of Incorporation of the Member)
unless such Affiliate Party Transaction is approved by the Board of Directors of
the Initial Member in accordance with the requirements of the Amended and Second
Restated Certificate of Incorporation of the Initial Member.
14. Acts of Members. Except as specifically otherwise provided in this
Agreement, whenever by the terms of this Agreement, the Articles or by law the
vote, consent, approval, election or other action of the Members is required or
permitted, the affirmative vote, consent, approval, election or other action of
the Members holding a Majority of the Percentage Interests shall be the act of
the Members. "Majority of the Percentage Interests" means Percentage Interests
representing more than 50% of the Percentage Interests then held by all Members.
15. Limitation of Liability and Indemnification of Members. No Member
shall be personally liable for monetary damages for breach of any duty provided
for in LSA-R.S. 12:1314. The Company shall defend, indemnify and hold harmless
each Member against judgments, settlements, penalties, fines or expenses
incurred because such person or entity is or was a member of the Company.
16. Indemnification of Officers and Employees. The Company may, in its
sole and absolute discretion, defend, indemnify and hold harmless the Officers,
employees or agents of the Company against judgments, settlements, penalties,
fines or expenses incurred because such person is or was an Officer, employee or
agent of the Company,
3
4
except in the case of an Officer's, employee's or agent's fraud, willful
misconduct, malfeasance or bad faith.
17. Profits and Losses. Profits and losses and each item of income,
gain, loss, deduction and credit of the Company shall be allocated, for all
purposes, pro rata, in proportion to the Members' respective Percentage
Interests.
18. Distributions. The Company shall distribute cash or other property
from time to time 100% to the Members in such amount or of such type and at such
times as the Members may determine.
19. Company Books and Records. In addition to the records required to
be maintained pursuant to Section 1319 of the Act, the Company shall maintain
separate books and records of accounts for the Company in such manner and form
as the Members deem appropriate.
20. Certificates of Membership. The ownership of the Units shall be
evidenced by Certificates in substantially the form attached as Exhibit A. Each
Certificate shall be dated the date of issuance of the Certificate. Each
Certificate shall be signed by an Officer of the Company or a Majority of
Interest of the Members, if there is more than one Member (which signature may
be on or affixed to the Certificate).
21. Transfer Records. The Company shall maintain or cause to be
maintained records reflecting the name and address of the holder of each
Certificate, the number of Units represented by each Certificate, the date of
issuance and transfer of each Certificate, the name and address of each
transferee of a Certificate, and any other information the Company deems
necessary or advisable.
22. Mutilated, Destroyed, Lost or Stolen Certificates. In the event
that any Certificate is mutilated, destroyed, lost, or stolen, the Company in
its discretion may issue to the registered holder of such Certificate as shown
by the records of the Company a new Certificate in exchange and substitution for
the mutilated Certificate, or in lieu of and substitution for the Certificate so
destroyed, lost, or stolen. In every case the applicant for a substituted
Certificate shall furnish to the Company such security, indemnity or bond as the
Company may reasonably require to save the Company harmless and, in every case
of destruction, loss, or theft of a Certificate, the applicant also shall
furnish to the Company evidence to its satisfaction of such destruction, loss,
or theft.
23. Transfer of Units. No sale, assignment, transfer, pledge or other
disposition ("Transfer") of any Unit shall be effective as against the Company
prior to its entry on the records of the Company upon surrender of the
Certificate evidencing ownership of such Unit and compliance with such
reasonable regulations as the Company may prescribe. Until the registration of
any such Transfer in the records of the Company, the Company may treat for all
purposes, including without limitation the making of distributions and voting,
the holder of any Certificate as shown by the Company's records as the owner of
the Units evidenced thereby and shall not be charged with notice of any claim or
demand by any other party respecting such Certificate or the
4
5
interest represented thereby. A Unit owner by assignment or otherwise shall hold
the Unit subject to all of the terms and provisions of this Agreement and the
Articles.
24. Restrictions on Transfer. Any Transfer of a Unit is subject to the
restrictions set forth in the Articles and the following additional
restrictions:
(a) Admission to Membership. Any Transfer of a Unit shall not
entitle the transferee to become or to exercise any rights or powers
of a Member unless and until the transferee is admitted in accordance
with the provisions of this Agreement, the Articles, and the Act
including without limitation the provisions of Section 1332(A) of the
Act.
(b) Securities Law Compliance. The Units of Membership Interest
have not been registered under the Securities Act of 1933, as amended,
or any state or foreign securities law. Neither the Units, nor any
portion thereof, may be sold, transferred, assigned, hypothecated or
otherwise disposed of in the absence of such registration and
qualification under applicable state or foreign securities law unless
in the opinion of counsel reasonably satisfactory to the Company an
exemption therefrom is available under said act and any applicable
state or foreign securities law.
25. Non-Admitted Transferee. A person who acquires a Unit but who is
not admitted as a substituted or additional Member: (a) shall not have the right
to become a substituted or additional Member without the consent of the Members
in accordance with the provisions of the Act, which consent may be given or
withheld in the sole and absolute discretion of the Members, (b) shall be
entitled only to receive such distribution or distributions, to share in such
profits and losses, and to receive such allocation of income, gain, loss,
deduction, credit, or similar item to which the transferor was entitled to the
extent transferred, (c) shall have no right to any information or accounting of
the affairs of the Company, (d) shall not be entitled to inspect the books or
records of the Company, and (e) shall not have any of the rights of a Member
under this Agreement or of a member under the Act, including, without
limitation, the right to vote upon or consent to actions of the Company.
Notwithstanding anything in this Agreement to the contrary, the Initial Member
hereby consents to the pledge and assignment of all Units held by the Initial
Member to the Bank of New York, as collateral agent, pursuant to, and on the
terms and conditions contained in, the Pledge Agreement and the Security
Agreement, each dated March 30, 2001, and each executed by the Initial Member,
the Company, JCC Xxxxxx Development, L.L.C., JCC Canal Development, L.L.C. and
JCC Development, L.L.C. in favor of the Bank of New York, as collateral agent.
26. Legends. Each Member hereby agrees that the following legends shall
be placed upon each Certificate evidencing ownership of Units:
THE UNITS OF MEMBERSHIP INTEREST REPRESENTED HEREBY ARE SUBJECT TO
FURTHER RESTRICTIONS AS TO THEIR SALE, ASSIGNMENT, TRANSFER, PLEDGE OR
OTHER DISPOSITION AS SET FORTH IN THE SECOND AMENDED AND RESTATED
OPERATING AGREEMENT OF THE COMPANY. SUCH
5
6
RESTRICTIONS INCLUDE THAT NO VENDEE, TRANSFEREE, ASSIGNEE, OR ENDORSEE
SHALL HAVE THE RIGHT TO BECOME A SUBSTITUTED MEMBER WITHOUT THE CONSENT
OF MEMBERS IN ACCORDANCE WITH THE PROVISIONS OF THE LOUISIANA LIMITED
LIABILITY COMPANY LAW, LA. R.S. Sections 12:1301 ET SEQ. WHICH CONSENT
MAY BE GIVEN OR WITHHELD IN THE SOLE AND ABSOLUTE DISCRETION OF SUCH
MEMBERS.
THE UNITS OF MEMBERSHIP INTEREST REPRESENTED BY THIS CERTIFICATE HAVE
BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE OR FOREIGN SECURITIES
LAW. NEITHER THESE UNITS, NOR ANY PORTION THEREOF MAY BE SOLD,
TRANSFERRED, ASSIGNED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION AND QUALIFICATION UNDER APPLICABLE STATE
OR FOREIGN SECURITIES LAW UNLESS IN THE OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY AN EXEMPTION THEREFROM IS AVAILABLE UNDER
SAID ACT AND ANY APPLICABLE STATE OR FOREIGN SECURITIES LAW.
THE PURPORTED SALE, ASSIGNMENT, TRANSFER, PLEDGE OR OTHER DISPOSITION
OF THIS SECURITY MUST RECEIVE THE PRIOR APPROVAL OF THE LOUISIANA
GAMING CONTROL BOARD. THE PURPORTED SALE, ASSIGNMENT, TRANSFER, PLEDGE
OR OTHER DISPOSITION, OF ANY SECURITY OR SHARES ISSUED BY THE ENTITY
ISSUING THIS SECURITY IS VOID UNLESS APPROVED IN ADVANCE BY THE
LOUISIANA GAMING CONTROL BOARD. IF AT ANY TIME AN INDIVIDUAL OWNER OF
ANY SUCH SECURITY IS DETERMINED TO BE UNSUITABLE UNDER THE LOUISIANA
ECONOMIC DEVELOPMENT AND GAMING CORPORATION ACT, LOUISIANA REVISED
STATUTES 27:201 ET SEQ., AND ALL OTHER RELEVANT PROVISIONS OF LOUISIANA
REVISED STATUTES 27:1 ET SEQ., AS IT MAY BE AMENDED FROM TIME TO TIME,
AND REGULATIONS ADOPTED BY THE LOUISIANA GAMING CONTROL BOARD PURSUANT
TO AND AUTHORIZED BY LOUISIANA REVISED STATUTES 27:24 TO CONTINUE AS A
PERMITEE OR SUITABLE PERSON, THE ISSUING ENTITY SHALL ENSURE THAT SUCH
PERSON OR PERSONS MAY NOT: (1) RECEIVE ANY DIVIDEND OR INTEREST UPON
ANY SUCH SECURITY; (2) EXERCISE, DIRECTLY OR INDIRECTLY THROUGH ANY
TRUSTEE OR NOMINEE, ANY VOTING RIGHT CONFERRED BY SUCH SECURITY; (3)
RECEIVE REMUNERATION IN ANY FORM FROM THE CASINO OPERATOR, CASINO
MANAGER, OR AFFILIATES FOR SERVICES RENDERED OR OTHERWISE; (4) RECEIVE
ANY ECONOMIC BENEFIT FROM
6
7
THE CASINO OPERATOR, CASINO MANAGER OR AFFILIATES; (5) CONTINUE IN AN
OWNERSHIP OR ECONOMIC INTEREST IN THE CASINO OPERATOR; OR (6) FUNCTION
AS A MANAGER, OFFICER, DIRECTOR OR PARTNER OF THE CASINO OPERATOR.
27. Dissolution and Winding Up. The Company shall dissolve at the time
and date specified in, and its business and affairs shall be wound up pursuant
to, a written instrument executed by the Members. If a Member's membership in
the Company ceases as a result of the Member's dissolution or termination as an
entity at a time when the Company has no other member, the successors in
interest of the Member with respect to its interest in the Company shall become
substitute members in the Company upon the occurrence of such event, each
holding a proportionate membership interest in the Company in accordance with
its interest as a successor to the Member, and the Company shall not dissolve.
28. Amendments. This Agreement and the Articles may not be amended,
cancelled, modified or restated without (i) the approval of the Louisiana Gaming
Control Board (the "LGCB") unless LGCB approval of any such amendment,
cancellation, modification or restatement is not required pursuant to applicable
Louisiana gaming laws, rules or regulations, and (ii) the written approval of
the Members. Certification of the Membership Interests of this Company is deemed
to be an amendment to this Agreement requiring the approvals set forth above.
29. Governing Law. The validity and enforceability of this Agreement
shall be governed by and construed in accordance with the laws of the State of
Louisiana without regard to otherwise governing principles of conflicts of law.
30. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original copy and all of
which shall constitute one agreement, binding on all parties hereto.
[Signature Page to Follow]
7
8
IN WITNESS WHEREOF, the parties have entered into this Second
Amended and Restated Operating Agreement of Jazz Casino Company, L.L.C.,
effective as of the day first above set forth.
JCC HOLDING COMPANY, JAZZ CASINO COMPANY, L.L.C.,
a Delaware corporation a Louisiana limited liability company
By:
---------------------------- By: JCC HOLDING COMPANY,
XXXXXXXXX X. XXXXXXX A DELAWARE CORPORATION
Its: President Its: Sole Member
By:
---------------------------------
Xxxxxxxxx X. Xxxxxxx
Its: President
8
9
EXHIBIT A
LIMITED LIABILITY COMPANY MEMBERSHIP INTEREST CERTIFICATE
__________, 2001
ORGANIZED UNDER THE LAWS OF THE STATE OF LOUISIANA
JAZZ CASINO COMPANY, L.L.C.
UNITS OF MEMBERSHIP INTEREST
Certificate No. UNITS ____
This certifies that ____________ is the registered holder of _____
Units of Membership Interest of the above-named Company, transferable only on
the books of the Company by the holder hereof in person or by attorney upon
surrender of this Certificate properly endorsed and in accordance with the terms
and conditions of the Articles of Amendment to Articles of Organization and the
Second Amended and Restated Operating Agreement of the Company, copies of which
may be inspected and copied during normal business hours at the executive office
of the Company,
THE UNITS OF MEMBERSHIP INTEREST REPRESENTED HEREBY ARE SUBJECT TO
FURTHER RESTRICTIONS AS TO THEIR SALE, ASSIGNMENT, TRANSFER, PLEDGE OR OTHER
DISPOSITION AS SET FORTH IN THE SECOND AMENDED AND RESTATED OPERATING AGREEMENT
OF THE COMPANY. SUCH RESTRICTIONS INCLUDE THAT NO VENDEE, TRANSFEREE, ASSIGNEE,
OR ENDORSEE SHALL HAVE THE RIGHT TO BECOME A SUBSTITUTED MEMBER WITHOUT THE
CONSENT OF MEMBERS IN ACCORDANCE WITH THE PROVISIONS OF THE LOUISIANA LIMITED
LIABILITY COMPANY LAW, LA. R.S. SECTIONS 12:1301 ET SEQ. WHICH CONSENT MAY BE
GIVEN OR WITHHELD IN THE SOLE AND ABSOLUTE DISCRETION OF SUCH MEMBERS.
THE UNITS OF MEMBERSHIP INTEREST REPRESENTED BY THIS CERTIFICATE HAVE
BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY STATE OR FOREIGN SECURITIES LAW. NEITHER THESE
UNITS, NOR ANY PORTION THEREOF MAY BE SOLD, TRANSFERRED, ASSIGNED, HYPOTHECATED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION AND QUALIFICATION
UNDER APPLICABLE STATE OR FOREIGN SECURITIES LAW UNLESS IN THE OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE
9
10
COMPANY AN EXEMPTION THEREFROM IS AVAILABLE UNDER SAID ACT AND ANY APPLICABLE
STATE OR FOREIGN SECURITIES LAW.
THE PURPORTED SALE, ASSIGNMENT, TRANSFER, PLEDGE OR OTHER DISPOSITION OF THIS
SECURITY MUST RECEIVE THE PRIOR APPROVAL OF THE LOUISIANA GAMING CONTROL BOARD.
THE PURPORTED SALE, ASSIGNMENT, TRANSFER, PLEDGE OR OTHER DISPOSITION, OF ANY
SECURITY OR SHARES ISSUED BY THE ENTITY ISSUING THIS SECURITY IS VOID UNLESS
APPROVED IN ADVANCE BY THE LOUISIANA GAMING CONTROL BOARD. IF AT ANY TIME AN
INDIVIDUAL OWNER OF ANY SUCH SECURITY IS DETERMINED TO BE UNSUITABLE UNDER THE
LOUISIANA ECONOMIC DEVELOPMENT AND GAMING CORPORATION ACT, LOUISIANA REVISED
STATUTES 27:201 ET SEQ., AND ALL OTHER RELEVANT PROVISIONS OF LOUISIANA REVISED
STATUTES 27:1 ET SEQ., AS IT MAY BE AMENDED FROM TIME TO TIME, AND REGULATIONS
ADOPTED BY THE LOUISIANA GAMING CONTROL BOARD PURSUANT TO AND AUTHORIZED BY
LOUISIANA REVISED STATUTES 27:24, TO CONTINUE AS A PERMITEE OR SUITABLE PERSON,
THE ISSUING ENTITY SHALL ENSURE THAT SUCH PERSON OR PERSONS MAY NOT: (1) RECEIVE
ANY DIVIDEND OR INTEREST UPON ANY SUCH SECURITY; (2) EXERCISE, DIRECTLY OR
INDIRECTLY THROUGH ANY TRUSTEE OR NOMINEE, ANY VOTING RIGHT CONFERRED BY SUCH
SECURITY; (3) RECEIVE REMUNERATION IN ANY FORM FROM THE CASINO OPERATOR, CASINO
MANAGER, OR AFFILIATES FOR SERVICES RENDERED OR OTHERWISE; (4) RECEIVE ANY
ECONOMIC BENEFIT FROM THE CASINO OPERATOR, CASINO MANAGER OR AFFILIATES; (5)
CONTINUE IN AN OWNERSHIP OR ECONOMIC INTEREST IN THE CASINO OPERATOR; OR (6)
FUNCTION AS A MANAGER, OFFICER, DIRECTOR OR PARTNER OF THE CASINO OPERATOR.
The Units of Membership Interest in this Company are securities for
purposes of Chapter 8 of the Louisiana Commercial Laws, La. R.S. Sections
10:8-101 et seq. and Chapter 9 of the Louisiana Commercial Laws, La. R.S.
Sections 10:9-101 et seq. The designation of the Membership Interests as
securities is made pursuant to La. R.S. Sections 10:8-103(c) and N.Y. U.C.C. Law
Section 8-103(c) (XxXxxxxx 1993).
IN WITNESS WHEREOF, the said Company has caused this Certificate to be
signed by its Secretary this 28th day of March, 2001.
JAZZ CASINO COMPANY, L.L.C.
By:
------------------------------------
L. Xxxxxxx Xxxxxx
Its: Secretary
10
11
For Value Received, _________________ hereby sells, assigns and transfers unto
_____________ _________ Units of Membership Interests represented by the within
Certificate, and does hereby irrevocably constitute and appoint
______________________, as Attorney, to transfer the said Membership Interests
on the books of the within named Company with full power of substitution in the
premises.
Dated __________________, 2001.
In the presence of:
-------------------------- ----------------------------
* * *
11
