Exhibit 3.27
OPERATING AGREEMENT OF
IOC HOLDINGS, L.L.C.
THIS OPERATING AGREEMENT (this "Agreement"), effective as of the 30
day of January, 2001, is entered into by and among IOC HOLDINGS, L.L.C., a
Louisiana limited liability company (the "Company"), and Isle of Capri Casinos,
Inc., a Delaware corporation, the Company's sole member on the date hereof (Isle
of Capri Casinos, Inc., together with those individuals and entities admitted as
members from time to time subsequent to the date hereof in accordance with the
terms herein, shall collectively be referred to herein as "Members"). The
Company and the Members hereby recite and agree as follows:
1. Formation
The Company and the Members hereby establish the terms of the
operation of 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 (the "Articles") and the Initial Report of
the Company executed on October 20, 1999 by Xxxxx X. Xxxxxxx, as organizer (the
"Organizer"), in full.
2. Principal Place of Business
The registered office in Louisiana is located at One Canal Place,
Suite 2000, 000 Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxx 00000-0000 and the
principal business office of the Company (the "Principal Business Office") shall
be located at 000 Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxx 00000, 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 Managers or 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 Managers or 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 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.
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(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);
(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) Managers or Directors. All powers shall be vested in, and the
business and affairs of the Company shall be managed by either a Board of
Managers or a Board of Directors consisting of one or more Managers or Directors
selected by the Members as provided herein. The initial Manager shall be Xxxxxxx
X. Xxxxx, who shall serve as the Manager of the Company until a successor or
successors shall have been duly elected and qualified. At each annual meeting,
the Members shall determine the number of Managers or Directors. The number of
Managers or Directors may be increased by the Members or may be decreased by the
Members, or in the event of any vacancy or vacancies, by the Managers or
Directors to eliminate such vacancies. Any decrease in the number of Managers or
Directors by the Members shall have the effect of terminating
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the term of office of all Managers or 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 Managers or Directors is effected at a
meeting of Members, the new Managers or Directors shall be elected at such
meeting. Each Manager or 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, with or without cause, at the Members' discretion.
(b) Vacancies. If a vacancy on the Board of Managers or Board of
Directors occurs by reason of death, resignation, removal or otherwise or if a
newly created Managership or Directorship results from an increase in the number
of Managers or Directors, such vacancy may be filled for the unexpired term by a
majority vote of the Managers or Directors then in office or by the sole
remaining Manager or Director, although less than a quorum exists. Each person
so elected shall be a Manager or 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 Managers or Directors. Regular meetings of the
Managers or Directors shall be held at such time and place as may from time to
time be determined by the Managers or Directors. No notice need be given of any
regular meeting. Special meetings of the Managers or Directors may be held at
such time and place as may be designated in the notice or the waiver of notice
of the meeting. Special meetings of the Managers or Directors may be called by
the Chairman of the Board, the President, by any two (2) Managers or Directors,
or by any one (1) Manager or Director when there are two (2) Managers or
Directors or less then serving. Unless notice shall be waived by all Managers or
Directors, notice of any special meeting (including a statement of the purposes
thereof) shall be given to each Manager 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. Any Manager or Director may vote
at any meeting in person or by proxy. Participation in any meeting of the
Managers or Directors may be in person or by telephone. Attendance at a meeting
by any Manager or Director, without objection in writing by him, shall
constitute his waiver of notice of such meeting. A majority of the total number
of Managers or 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 Managers or
Directors shall constitute a quorum for the purpose of filling of such
vacancies.
(d) Disclosure to Gaming Regulatory Authorities. Each Manager or
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 Manager
or 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 Manager or Director shall, if so requested by a
majority of the remaining Managers or Directors, resign as a Manager or
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
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or regulations are otherwise applicable to the Company, such Manager or 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 Managers
or Directors. Appointment of a person as an officer shall not, by virtue of such
appointment alone, make such person a Manager under the LaLLCL. 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 or LaLLCL.
(f) Authorizing Actions. Any action to be taken by the Members or the
Managers or Directors under the LaLLCL or this Agreement may be taken (1) at a
meeting of the Members or the Managers or Directors, respectively, held on such
terms and after notice required by this Agreement, or (2) by unanimous written
action of the Members or the Managers or Directors, respectively. 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.
(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) Indemnification. The Company shall, and hereby does, fully
release, indemnify and hold any Member, Manager, Director, officer, employee or
agent of the Company harmless from and against any loss, claim or other
liability the Member, Manager, 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 Section 83 of the
Louisiana Business Corporation Law, La. R.S. 12:83, as amended from time to
time, and it shall be assumed that the indemnitee shall be governed by such law
to the same extent as an officer or director of a Louisiana business
corporation. 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.
(i) 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.
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7. Profit or Losses
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 Managers or 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 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
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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
(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
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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.
(f) Applicability. The foregoing provisions contained in this Section
10 shall only apply if the Company has two or more Members.
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.
(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, maybe 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
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communication device), or by prepaid registered or certified mail (which shall
be effective five business days after being so mailed) to the address for notice
set forth as follows:
Isle of Capri Casinos, Inc. IOC Holdings, L.L.C.
000 Xxxxxxxxxx Xxxx 0000 Xxxxx Xxxxx Xxxx, Xxxxx X0
Xxxxxx, Xxxxxxxxxxx 00000 Biloxi, Mississippi 39532
Attention: Xx. Xxxxxxx X. Xxxxx Attention: Xx. Xxxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000
This address shall continue to constitute the appropriate address 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 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.
[remainder of this page intentionally left blank]
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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 IOC HOLDINGS, L.L.C., appearing through its undersigned
Manager, who acknowledged and declared under oath, in the presence of the two
undersigned witnesses, that the, Company signed this Agreement as the Company's
free act and deed for the purposes stated herein.
IOC HOLDINGS, L.L.C.
/s/ Illegible By: /s/ Xxxxx X. Xxxxxxx
------------------------------------ ------------------------------------
Witness Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
/s/ Illegible
------------------------------------ ----------------------------------------
Witness
Date 1/30/01
/s/ XXXX X. XXXXX
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NOTARY PUBLIC
Notary's jurisdiction: State of Florida ------------------------------------------------
County of Palm Beach XXXX X. XXXXX
[LOGO] MY COMMISSION # CC 587448
EXPIRES: December 1, 2001
Term expires: 12/1/01 Bonded Thru Notary Public Underwriters
------------------------------------------------
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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 Is1e of Capri Casinos, 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.
ISLE OF CAPRI CASINOS, INC.
/s/ Illegible By: /s/ Xxxxx X. Xxxxxxx
------------------------------------ ------------------------------------
Witness Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
/s/ Illegible
------------------------------------ ----------------------------------------
Witness
Date 1/30/01
/s/ Illegible
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NOTARY PUBLIC
Notary's jurisdiction: State of Florida ------------------------------------------------
County of Palm Bench XXXX X. XXXXX
[LOGO] MY COMMISSION # CC 587449
EXPIRES: December 1, 2001
Term expires: 12/1/01 Bonded Thru Notary Public Underwritters
------------------------------------------------
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EXHIBIT A
TO THE OPERATING AGREEMENT
OF
IOC HOLDINGS, L.L.C.
Initial Membership Interests and Contributions
Initial
Membership
Member Name Interest Contribution
ISLE OF CAPRI CASINOS, INC. 100% $1,000
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