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Exhibit
3.38
SECOND AMENDED AND
RESTATED
LIMITED LIABILITY COMPANY
AGREEMENT
OF
PNK DEVELOPMENT 13,
LLC
(a New Jersey limited
liability company)
This Second Amended and
Restated Operating Agreement of PNK Development 13, LLC, a New
Jersey limited liability company (the “ Company
”), is entered into and adopted effective as of
March 24, 2008 (the “ Effective Date ”), by
Biloxi Casino Corp., a Mississippi corporation (the “
Member ”), which constitutes the sole member of the
Company, with reference to the recitals set forth below:
RECITALS
A. The Company was originally
formed under the New Jersey Limited Liability Company Act (
N.J.S.A. 42:2B-1 et. seq.) (the “ Act ”)
on January 4, 2006;
B. The Member previously
adopted that certain Amended and Restated Operating Agreement of
the Company effective as of November 17, 2006 (the “
Operating Agreement ”); and
C. The Member desires to
further amend and restate the Operating Agreement of the Company to
provide for the (i) management of the Company by the Member
and (ii) conduct of the Company’s business and affairs
on and after the Effective Date.
NOW, THEREFORE, in
consideration of the terms and provisions set forth herein, the
benefits to be gained by the performance thereof and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Member hereby amends and restates the
Operating Agreement of the Company in its entirety to read as
follows:
ARTICLE I
DEFINITIONS
“ Affiliate
” means with respect to a specified Person, any other Person
who or which is directly or indirectly controlling, controlled by
or under common control with the specified Person. For purposes of
this definition, “control”, “controlling”,
and “controlled” mean (i) the right to exercise,
directly or indirectly, more than fifty percent of the voting power
of the stockholders, members or owners, or (ii) the
possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of an entity, whether
through the ownership of voting securities, by contract or
otherwise.
“ Agreement
” means this Second Amended and Restated Operating Agreement,
as originally executed and as amended or restated from time to
time.
“ Capital
Contribution ” means a contribution to the capital of the
Company in cash, property, or otherwise.
“ Casino Control
Act ” means the New Jersey Casino Control Act and the
rules and regulations of the State of New Jersey Casino Control
Commission.
“ Certificate of
Formation ” means the Certificate of Formation of the
Company as filed with the Secretary of State of New Jersey, as
amended from time to time.
“ Code ”
means the Internal Revenue Code of 1986, as amended from time to
time, or any corresponding United States federal tax statute
enacted after the date of this Agreement. A reference to a specific
section of the Code refers not only to such specific section but
also to any corresponding provision of any United States federal
tax statute enacted after the date of this Agreement, as such
specific section or corresponding provision is in effect on the
date of application of the provisions of this Agreement containing
such reference.
“ Covered Person
” means (a) the Member, (b) any manager, director
or officer of the Company, (c) any Person acting on behalf of
the Member to direct the activities of the Company, or (d) any
Person who was, at the time of the act or omission in question, a
Person described in clause (a), (b) or
(c) hereof.
“ Gaming ”
means to deal, operate, carry on, conduct, maintain or expose for
play any game played with cards, dice, equipment or any mechanical,
electromechanical or electronic device for money, property, checks,
credit or any representative of value, including without limitation
the conducting of Gaming activities in accordance with applicable
Gaming Laws and Gaming Licenses.
“ Gaming
Authority ” means those national, state, local and other
governmental, regulatory and administrative authorities, agencies,
boards, commissions and officials responsible for or involved in
the regulation and control of Gaming or Gaming
activities or operations in any jurisdiction.
“ Gaming Laws
” means those laws pursuant to which any Gaming Authority
possesses regulation, licensing, permit, investigatory, or
enforcement authority over Gaming or Gaming activities or
operations within any jurisdiction.
“ Gaming
Licenses ” means all licenses, permits, approvals,
authorizations, certificates, registrations, findings of
suitability, franchises and entitlements issued by any Gaming
Authority necessary for or relating to the conduct of Gaming or
Gaming activities or operations or the ownership of an
interest in an entity that conducts Gaming or Gaming activities or
operations.
“ Interest
” means the entire ownership interest of the Member in the
Company at any time, including the right of the Member to any and
all benefits to which the Member may be entitled as provided under
the Act and this Agreement.
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“ Member ”
is defined in the preamble hereof. As of the Effective Date, the
Member’s name, address and ownership interest are as set
forth on Schedule I attached hereto. In the event that the
Member approves the admission of any other Person as a member of
the Company, such Person shall have such relative rights and
responsibilities as a member of the Company as are agreed to by the
Member.
“ Person ”
means any individual, partnership, limited liability company,
corporation, trust, estate, association, or other
entity.
“ Treasury
Regulations ” means the federal income tax regulations
promulgated by the U.S. Treasury Department under the Code and
codified at Title 26 of the Code of Federal Regulations, as amended
from time to time.
“ Unsuitable
Person ” means a Person (i) who is denied a Gaming
License by any Gaming Authority, disqualified from eligibility for
a Gaming License, or determined to be unsuitable to own or control
an interest in, or to be connected with, a Person engaged directly
or indirectly in Gaming or Gaming activities in any jurisdiction by
a Gaming Authority, or (ii) whose continued involvement in the
business of the Company (A) causes the Company or any
Affiliate of the Company to lose or to be threatened with the loss
of any Gaming License, or (B) is deemed likely, in the sole
and absolute discretion of the Member, to jeopardize or adversely
affect the likelihood that the Gaming Authorities will issue a
Gaming License to, or in connection with the business of, the
Company or any Affiliate of the Company or to adversely affect the
Company’s or any such Affiliate’s use of or entitlement
to any Gaming License.
ARTICLE II
INTRODUCTORY
MATTERS
2.1 Existence .
Pursuant to the provisions of the Act, the Company has been formed
as a New Jersey limited liability company under the laws of the
State of New Jersey. The Member or any officer of the Company shall
execute, deliver and file any other certificates (and any
amendments and/or restatements thereof) necessary for the Company
to qualify to do business in any jurisdiction in which the Company
may wish to conduct business. To the extent that the rights or
obligations of the Member are different by reason of any provision
of this Agreement than they would be in the absence of such
provision, this Agreement shall, to the extent permitted by the
Act, control.
2.2 Name . The name of
the Company shall be “PNK Development 13, LLC.” Subject
to compliance with applicable law, the business and affairs of the
Company may be conducted under that name or any other name that the
Member deems appropriate or advisable.
2.3 Other Offices .
The Company may establish and maintain offices at any time and at
any place or places as the Member may designate or as the business
of the Company may require.
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2.4 Resident Agent and
Registered Office . The resident agent of the Company for
service of process shall be as set forth in the Certificate of
Formation or as changed by the Member from time to time. The
Company shall have as its registered office in the State of New
Jersey the street address of its resident agent.
2.5 Purpose . Except
as provided elsewhere in this Agreement, the Company is formed for
the object and purpose of engaging in any lawful act or activity
for which limited liability companies may be formed under the Act
and engaging in any and all activities necessary or incidental to
the foregoing.
2.6 Casino Control Act
. This Agreement shall be subject to the provisions of the Casino
Control Act and the rules and regulations of the Commission
promulgated thereunder. In accordance with the provisions of
Section 82(d)(7) of the Casino Control Act, N.J.S.A.
5:12-82(d)(7), for as long as the Company or any of its affiliates
holds or is an applicant for a Gaming License or a gaming-related
casino service industry license under the Casino Control Act, the
Commission shall have the right of prior approval with regard to
transfers of membership interests or any other interests in the
Company, and any interests in the Company are held subject to the
condition that if a holder thereof is found to be disqualified by
the Commission pursuant to the provisions of the Casino Control
Act, such holder will dispose of that interest; provided ,
however , that, notwithstanding any other provision of law
to the contrary, nothing herein contained shall be deemed to
require that any certificate evidencing an interest in the Company
bear any legend to this effect. In accordance with the provisions
of Section 82(d)(8) of the Casino Control Act, N.J.S.A.
5:12-82(d)(8), the Company shall have the absolute right to
repurchase, at the market price or the purchase price, whichever is
less, any membership interest or other interest in the Company if
the Commission disapproves a transfer of such interest in
accordance with the provisions of the Casino Control
Act.
2.7 Powers of the
Company . Except as provided elsewhere in this Agreement, the
Company shall have the power and authority to take any and all
actions necessary, appropriate, advisable, convenient or incidental
to or for the furtherance of the purpose set forth in
Section 2.5, including, but not limited to, the power and
authority to:
(a) borrow money and issue
evidences of indebtedness, and to secure the same by a mortgage,
pledge or other lien on any or all of the assets of the
Company;
(b) conduct its business and
operations in any state, territory, district or possession of the
United States or in any foreign country that may be necessary or
convenient to the accomplishment of the purpose of the
Company;
(c) acquire, by purchase,
lease, contribution of property or otherwise, and own, hold,
maintain, finance, improve, lease, sell, convey, mortgage,
transfer, demolish or dispose of any real or personal property that
may be necessary, convenient or incidental to the accomplishment of
the purpose of the Company;
(d) enter into, perform and
carry out contracts of any kind, including without limitation,
contracts with the Member or any Affiliate of, or other Person
associated directly or indirectly with, the Member that are
necessary to, in connection with, convenient to, or incidental to
the accomplishment of the purpose of the Company;
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(e) purchase, take, receive,
subscribe for or otherwise acquire, own, hold, vote, use, employ,
sell, mortgage, lend, pledge or otherwise dispose of, and otherwise
use and deal in and with, shares or other interests in or
obligations of domestic or foreign entities;
(f) lend money for any proper
purpose, invest and reinvest its funds and take and hold real and
personal property for the payment of funds so loaned or
invested;
(g) sue and be sued, complain
and defend and participate in administrative or other proceedings,
in its name;
(h) appoint employees, agents
and officers of the Company, and define their duties and fix their
compensation;
(i) indemnify any Person and
obtain any and all types of insurance;
(j) cease its activities and
cancel its insurance;
(k) negotiate, enter into,
renegotiate, extend, renew, terminate, modify, amend, waive,
execute, acknowledge or take any other action with respect to any
lease, contract or security agreement in respect of any assets of
the Company;
(l) pay, collect, compromise,
litigate, arbitrate or otherwise adjust or settle any and all other
claims or demands of or against the Company or hold such proceeds
against the payment of contingent liabilities;
(m) apply for, obtain and
maintain any licenses, permits, approvals, exemptions and waivers
from any Gaming Authority as may be necessary under applicable
Gaming Laws for the conduct of its business and operations;
and
(n) make
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