By-Laws - THCR Atlantic City Funding Inc.
THCR ATLANTIC CITY FUNDING, INC.
Incorporated Under the Laws of
the State of Delaware
BY-LAWS
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ARTICLE I
OFFICES
The registered office of THCR Atlantic City Funding, Inc. (the "Corporation") in
Delaware shall be at 1209 Orange Street in the City of Wilmington, County of New
Castle, in the State of Delaware, and The Corporation Trust Company shall be the
resident agent of this Corporation in charge thereof. The Corporation may also
have such other offices at such other places, within or without the State of
Delaware, as the Board of Directors of the Corporation (the "Board of
Directors") may from time to time designate or the business of the Corporation
may require.
ARTICLE II
STOCKHOLDERS
Section 1. Annual Meeting: The annual meeting of stockholders for the election
of directors and the transaction of any other business shall be held on such
date, in such city and state and at such time and place as may be designated by
the Board of Directors, and set forth in the notice of such meeting. If said
day be a legal holiday, said meeting shall be held on the next succeeding
business day. At the annual meeting any business may be transacted and any
corporate action may be taken, whether stated in the notice of meeting or not,
except as otherwise expressly provided by statute or the Certificate of
Incorporation of the Corporation (the "Certificate of Incorporation").
Section 2. Special Meetings: Special meetings of the stockholders for any
purpose may be called at any time by the Board of Directors, or by the
President, and shall be called by the President at the request of the holders of
a majority of the outstanding shares of capital stock entitled to vote. Special
meetings shall be held at such place or places within or without the State of
Delaware as shall from time to time be designated by the Board of Directors and
stated in the notice of such meeting. At a special meeting, no business shall
be transacted and no corporate action shall be taken other than that stated in
the notice of the meeting.
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Section 3. Notice of Meetings: Written notice of the time and place of any
meeting of stockholders, whether annual or special, shall be given to each
stockholder entitled to vote thereat, by personal delivery or by mailing the
same to him at his address as the same appears upon the records of the
Corporation at least ten (10) days but not more than sixty (60) days before the
day of the meeting. Notice of any adjourned meeting need not be given except by
announcement at the meeting so adjourned, unless otherwise ordered in connection
with such adjournment. Such further notice, if any, shall be given as may be
required by law.
Section 4. Quorum: Any number of stockholders, together holding at least a
majority of the capital stock of the Corporation issued and outstanding and
entitled to vote, who shall be present in person or represented by proxy at any
meeting duly called, shall constitute a quorum for the transaction of all
business, except as otherwise provided by law, by the Certificate of
Incorporation or by these By-laws.
Section 5. Adjournment of Meetings: If less than a quorum shall attend at the
time for which a meeting shall have been called, the meeting may be adjourned
from time to time by a majority vote of the stockholders present or represented
by proxy and entitled to vote without notice other than by announcement at the
meeting until a quorum shall attend. Any meeting at which a quorum is present
may also be adjourned in like manner and for such time or upon such call as may
be determined by a majority vote of the stockholders present or represented by
proxy and entitled to vote. At any adjourned meeting at which a quorum shall be
present, any business may be transacted and any corporate action may be taken
which might have been transacted at the meeting as originally called.
Section 6. Voting List: The Secretary shall prepare and make, at least ten
(10) days before every election of directors, a complete list of the
stockholders entitled to vote, arranged in alphabetical order and showing the
address of each stockholder and the number of shares of each stockholder. Such
list shall be open at the place where the election is to be held for said ten
(10) days, to the examination of any stockholder, and shall be produced and kept
at the time and place of election during the whole time thereof, and subject to
the inspection of any stockholder who may be present.
Section 7. Voting: Each stockholder entitled to vote at any meeting may vote
either in person or by proxy, but no proxy shall be voted on or after eleven
(11) months from its date, unless said proxy provides for a longer period. Each
stockholder entitled to vote shall at every meeting of the stockholders be
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entitled to one vote for each share of stock registered in his name on the
record of stockholders. At all meetings of stockholders, all matters, except as
otherwise provided by statute or the Certificate of Incorporation, shall be
determined by the affirmative vote of the majority of shares present in person
or by proxy and entitled to vote on the subject matter. Voting at meetings of
stockholders need not be by written ballot.
Section 8. Record Date of Stockholders: The Board of Directors is authorized
to fix in advance of any meeting of stockholders a date not exceeding sixty (60)
days nor less than ten (10) days preceding the date of any meeting of
stockholders, or the date for the payment of any dividend, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
capital stock shall go into effect, or a date in connection with obtaining the
consent of stockholders for any purposes, as a record date for the determination
of the stockholders entitled to notice of, and to vote at, any such meeting, and
any adjournment thereof, or entitled to receive payment of any such dividend, or
to any such allotment of rights, or to exercise the rights in respect of any
such change, conversion or exchange of capital stock, or to give such consent,
and, in such case, such stockholders and only such stockholders as shall be
stockholders of record on the date so fixed shall be entitled to such notice of,
and to vote at, such meeting, and any adjournment thereof, or to receive payment
of such dividend, or to receive such allotment of rights, or to exercise such
rights, or to give such consent, as the case may be, notwithstanding any
transfer of any stock on the books of the Corporation after such record date
fixed as aforesaid.
Section 9. Conduct of Meetings: The Chairman of the Board of Directors or, in
his absence, the President, shall preside at all regular or special meetings of
stockholders. To the maximum extent permitted by law, such presiding person
shall have the power to set procedural rules governing all aspects of the
conduct of such meetings, including but not limited to, rules respecting the
time allotted to stockholders to speak. The Secretary of the Corporation shall
act as secretary of every meeting, but if the Secretary is not present, the
presiding officer of the meeting shall appoint any person present to act as
secretary of the meeting.
Section 10. Action Without Meeting: Any action required or permitted to be
taken at any annual or special meeting of stockholders may be taken without a
meeting, without prior notice and without a vote, if a consent or consents in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at
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a meeting at which all shares entitled to vote thereon were present and voted
and shall be delivered to the Corporation by delivery to its registered office
in the State of Delaware, its principal place of business, or an officer or
agent of the Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Delivery made to the Corporation's
registered office shall be by hand or by certified or registered mail, return
receipt requested. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. Number and Qualifications: The Board of Directors shall consist
initially of three (3) directors, and thereafter shall consist of such number as
may be fixed from time to time by resolution of the Board of Directors. The
directors need not be stockholders.
Section 2. Election of Directors: The directors shall be elected by the
stockholders at the annual meeting of stockholders.
Section 3. Duration of Office: The directors chosen at any annual meeting
shall, except as hereinafter provided, hold office until the next annual
election and until their successors are elected and qualify.
Section 4. Removal and Resignation of Directors: Any director may be removed
from the Board of Directors, with or without cause, by the holders of a majority
of the shares of capital stock entitled to vote, either by written consent or
consents or at any special meeting of the stockholders called for that purpose,
and the office of such director shall forthwith become vacant.
Any director may resign at any time. Such resignation shall take effect at the
time specified therein, and if no time be specified, at the time of its receipt
by the President or Secretary. The acceptance of a resignation shall not be
necessary to make it effective, unless so specified therein.
Section 5. Filling of Vacancies: Any vacancy among the directors, occurring
from any cause whatsoever, may be filled by a majority of the remaining
directors, though less than a quorum, provided however, that the stockholders
removing any director may at the same meeting fill the vacancy caused by such
removal, and provided further, that if the directors fail to fill any such
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vacancy, the stockholders may at any special meeting called for that purpose
fill such vacancy. In case of any increase in the number of directors, the
additional directors may be elected by the directors in office before such
increase.
Any person elected to fill a vacancy shall hold office, subject to the right of
removal as hereinbefore provided, until the next annual election and until his
successor is elected and qualified.
Section 6. Regular Meetings: The Board of Directors shall hold an annual
meeting for the purpose of organization and the transaction of any business
immediately after the annual meeting of the stockholders, provided a quorum of
directors is present. Other regular meetings may be held at such times as may
be determined from time to time by resolution of the Board of Directors.
Section 7. Special Meetings: Special meetings of the Board of Directors may be
called by the Chairman of the Board of Directors or by the President.
Section 8. Notice and Place of Meetings: Meetings of the Board of Directors
may be held at the principal office of the Corporation, or at such other place
as shall be stated in the notice of such meeting. Notice of any special
meeting, and, except as the Board of Directors may otherwise determine by
resolution, notice of any regular meeting, shall be mailed to each director
addressed to him at his residence or usual place of business at least five (5)
days before the day on which the meeting is to be held, or if sent to him at
such place by telegraph or cable, or delivered personally or by telephone, not
later than four (4) days before the day on which the meeting is to be held.
Section 9. Business Transacted at Meetings: Any business may be transacted and
any corporate action may be taken at any regular or special meeting of the Board
of Directors at which a quorum shall be present, whether such business or
proposed action be stated in the notice of such meeting or not, unless special
notice of such business or proposed action shall be required by statute.
Section 10. Quorum: A majority of the Board of Directors at any time in office
shall constitute a quorum. At any meeting at which a quorum is present, the
vote of a majority of the members present shall be the act of the Board of
Directors unless the act of a greater number is specifically required by law or
by the Certificate of Incorporation or these By-laws. The members of the Board
of Directors shall act only as the Board of
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Directors and the individual members thereof shall not have any powers as such.
Section 11. Compensation: The directors shall not receive any stated salary
for their services as directors. Nothing herein contained shall preclude any
director from serving the Corporation in any other capacity, as an officer,
agent or otherwise, and receiving compensation therefor.
Section 12. Action Without a Meeting: Any action required or permitted to be
taken at any meeting of the Board of Directors, or of any committee thereof, may
be taken without a meeting if all members of the Board of Directors or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of the proceedings of the Board of Directors
or committee.
Section 13. Meetings Through Use of Communications Equipment: Members of the
Board of Directors, or any committee designated by the Board of Directors,
shall, except as otherwise provided by law, the Certificate of Incorporation or
these By-laws, have the power to participate in a meeting of the Board of
Directors, or any committee, by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation shall constitute presence in
person at the meeting.
ARTICLE IV
COMMITTEES
Section 1. Executive Committee: The Board of Directors may, by resolution
passed by a majority of the entire Board of Directors, designate two or more of
their number to constitute an Executive Committee to hold office at the pleasure
of the Board of Directors, which Committee shall, during the intervals between
meetings of the Board of Directors, have and exercise all of the powers of the
Board of Directors in the management of the business and affairs of the
Corporation, subject only to such restrictions or limitations as the Board of
Directors may from time to time specify, or as limited by the General
Corporation Law of the State of Delaware, and shall have power to authorize the
seal of the Corporation to be affixed to all papers which may require it.
Any member of the Executive Committee may be removed at any time, with or
without cause, by a resolution of a majority of the whole Board of Directors.
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Any person ceasing to be a director shall ipso facto cease to be a member of the
Executive Committee.
Any vacancy in the Executive Committee occurring from any cause whatsoever may
be filled from among the directors by a resolution of a majority of the entire
Board of Directors.
Section 2. Other Committees: Other committees, whose members need not be
directors, may be appointed by the Board of Directors or the Executive
Committee, which committees shall hold office for such time and have such powers
and perform such duties as may from time to time be assigned to them by the
Board of Directors or the Executive Committee.
Any member of such a committee may be removed at any time, with or without
cause, by the Board of Directors or the Executive Committee. Any vacancy in a
committee occurring from any cause whatsoever may be filled by the Board of
Directors or the Executive Committee.
Section 3. Resignation: Any member of a committee may resign at any time.
Such resignation shall be made in writing and shall take effect at the time
specified therein, or, if no time be specified, at the time of its receipt by
the President or Secretary. The acceptance of a resignation shall not be
necessary to make it effective unless so specified therein.
Section 4. Quorum: A majority of the members of a committee shall constitute a
quorum. The act of a majority of the members of a committee present at any
meeting at which a quorum is present shall be the act of such committee. The
members of a committee shall act only as a committee, and the individual members
thereof shall not have any powers as such.
Section 5. Record of Proceedings: Each committee shall keep a record of its
acts and proceedings, and shall report the same to the Board of Directors when
and as required by the Board of Directors.
Section 6. Organization, Meetings, Notices: A committee may hold its meetings
at the principal office of the Corporation, or at any other place which a
majority of the committee may at any time agree upon. Each committee may make
such rules as it may deem expedient for the regulation and carrying on of its
meetings and proceedings. Unless otherwise ordered by the Executive Committee,
any notice of a meeting of such committee may be given by the Secretary of the
Corporation or by the chairman of the committee and shall be sufficiently given
if mailed to each member at his residence or usual place of business at least
five (5) days before the day on which the meeting is to
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be held, or if sent to him at such place by telegraph or cable, or delivered
personally or by telephone not later than four (4) days before the day on which
the meeting is to be held.
Section 7. Compensation: The members of any committee shall be entitled to
such compensation as may be allowed them by resolution of the Board of
Directors.
ARTICLE V
OFFICERS
Section 1. Number: The officers of the Corporation shall be a President, a
Secretary, a Treasurer, and such other officers as may be appointed in
accordance with the provisions of Section 3 of this Article V. The Board of
Directors in its discretion may also elect a Chairman of the Board of Directors.
Section 2. Election, Term of Office and Qualifications:
The officers, except as provided in Section 3 of this Article V, shall be chosen
annually by the Board of Directors. Each such officer shall, except as herein
otherwise provided, hold office until his successor shall have been chosen and
shall qualify. Except as otherwise provided by law, any number of offices may
be held by the same person.
Section 3. Other Officers: Other officers, including one or more vice-
presidents, assistant secretaries or assistant treasurers, may from time to time
be appointed by the Board of Directors, which other officers shall have such
powers and perform such duties as may be assigned to them by the Board of
Directors or the officer or committee appointing them.
Section 4. Removal of Officers: Subject to the provisions of the Certificate
of Incorporation, any officer of the Corporation may be removed from office,
with or without cause, by a vote of a majority of the entire Board of Directors.
Section 5. Resignation: Any officer of the Corporation may resign at any time.
Such resignation shall be in writing and shall take effect at the time specified
therein, and if no time be specified, at the time of its receipt by the
President or Secretary. The acceptance of a resignation shall not be necessary
in order to make it effective, unless so specified therein.
Section 6. Filling of Vacancies: Subject to the provisions of the Certificate
of Incorporation, a vacancy in any office shall be filled by the Board of
Directors or by the authority appointing the predecessor in such office.
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Section 7. Compensation: The compensation of officers shall be fixed by the
Board of Directors, or by any committee upon whom power in that regard may be
conferred by the Board of Directors.
Section 8. Chairman of the Board of Directors: The Chairman of the Board of
Directors shall be a director and shall preside at all meetings of the Board of
Directors at which he shall be present, and shall have such power and perform
such duties as may from time to time be assigned to him by the Board of
Directors.
Section 9. President: The President shall, when present, preside at all
meetings of the stockholders, and, in the absence of the Chairman of the Board
of Directors, at meetings of the Board of Directors. The President shall have
power to call special meetings of the stockholders or of the Board of Directors
or of the Executive Committee at any time. The President shall be the chief
executive officer of the Corporation, and shall control the general direction of
the business, affairs and property of the Corporation, and of its several
officers, and shall have and exercise all such powers and discharge such duties
as usually pertain to the office of President.
Section 10. Secretary: The Secretary shall perform such duties as are incident
to the office of Secretary, or as may from time to time be assigned to him by
the Board of Directors, or as are prescribed by these By-laws.
Section 11. Treasurer: The Treasurer shall perform such duties and have powers
as are incident to the office of Treasurer or which may be assigned to him by
the Board of Directors.
ARTICLE VI
CAPITAL STOCK
Section 1. Issue of Certificates of Stock: Certificates of capital stock shall
be in such form as shall be approved by the Board of Directors. They shall be
numbered in the order of their issue and shall be signed by the Chairman of the
Board of Directors, the President, and the Secretary or the Treasurer, and the
seal of the Corporation or a facsimile thereof shall be impressed or affixed or
reproduced thereon; provided, however, that where such certificates are signed
by a transfer agent or an assistant transfer agent or by a transfer clerk acting
on behalf of the Corporation and a registrar, the signature of any such Chairman
of the Board of Directors, President, Secretary or Treasurer may be facsimile.
In case any officer or officers who shall have signed, or whose facsimile
signature or signatures
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shall have been used on any such certificate or certificates shall cease to be
such officer or officers of the Corporation, whether because of death,
resignation or otherwise, before such certificate or certificates shall have
been delivered by the Corporation, such certificate or certificates may
nevertheless be adopted by the Corporation and be issued and delivered as though
the person or persons who signed such certificate or certificates, or whose
facsimile signature or signatures shall have been used thereon have not ceased
to be such officer or officers of the Corporation.
Section 2. Registration and Transfer of Shares: The name of each person owning
a share of the capital stock of the Corporation shall be entered on the books of
the Corporation together with the number of shares held, the numbers of the
certificates covering such shares and the dates of issue of such certificates.
The shares of stock of the Corporation shall be transferable on the books of the
Corporation by the holders thereof in person, or by their duly authorized
attorneys or legal representatives, on surrender and cancellation of
certificates for a like number of shares, accompanied by an assignment or power
of transfer endorsed thereon or attached thereto, duly executed, and with such
proof of the authenticity of the signature as the Corporation or its agents may
reasonably require. A record shall be made of each transfer.
The Board of Directors may make other and further rules and regulations
concerning the transfer and registration of certificates for stock and may
appoint a transfer agent or registrar or both and may require all certificates
of stock to bear the signature of either or both.
Section 3. Lost, Destroyed and Mutilated Certificates: The holder of any stock
of the Corporation shall immediately notify the Corporation of any loss, theft,
destruction or mutilation of the certificates therefor. The Corporation may
issue a new certificate of stock in the place of any certificate theretofore
issued by it alleged to have been lost, stolen or destroyed, and the Board of
Directors may, in its discretion, require the owner of the lost, stolen or
destroyed certificate, or his legal representatives, to give the Corporation a
bond, in such sum not exceeding two times the value of the stock and with such
surety or sureties as they may require, to indemnify it against any claim that
may be made against it by reason of the issue of such new certificate and
against all other liability in the premises, or may remit such owner to such
remedy or remedies as he may have under the laws of the State of Delaware.
ARTICLE VII
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DIVIDENDS, SURPLUS, ETC.
Section 1. General Discretion of Directors: The Board of Directors shall have
power to fix and vary the amount to be set aside or reserved as working capital
of the Corporation, or as reserves, or for other proper purposes of the
Corporation, and, subject to the requirements of the Certificate of
Incorporation, to determine whether any, if any, part of the surplus or net
profits of the Corporation shall be declared as dividends and paid to the
stockholders, and to fix the date or dates for the payment of dividends.
ARTICLE VIII
CASINO CONTROL ACT
Notwithstanding anything contained herein to the contrary, if the Corporation
holds a casino license or is deemed a holding company, intermediary company or
otherwise a qualifier, under the New Jersey Casino Control Act, N.J.S.A. 5:12-1
et seq. and the regulations promulgated thereunder as from time to time amended
(the "Casino Control Act"), then the Corporation shall take all action necessary
to comply with the Casino Control Act, including, but not limited to the
following:
Section 1. Notices. To the extent notice to and/or approval of any actions of
the Corporation is required by the New Jersey Casino Control Commission (the
"Commission") under the Casino Control Act, then it shall be the duty of the
Secretary of the Corporation to so comply. No action of the Corporation for
which notice to and/or approval of the Commission is required shall be valid
without the aforesaid notice and/or approval.
Section 2. Stockholder Qualification. (a) If any record holder or beneficial
owner of securities of the Corporation is found to be "disqualified" by the
Commission pursuant to the provisions of the Casino Control Act, such holder or
owner thereof shall dispose of such interest in the Corporation.
(b) In order to avoid disciplinary action for the payment of any dividend,
interest or remuneration, or for recognition of any voting right, the
Corporation shall use its best efforts to terminate all relationships with any
persons determined to be "disqualified." If the Corporation is unable, after
the exercise of its best efforts, to terminate such relationship by acquisition
of the securities or otherwise, it shall suspend payment of dividends or
interest upon any such securities and shall not permit the exercise of any
right, voting or otherwise, conferred by such securities, or pay or otherwise
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grant or deliver any remuneration in any form whatsoever for services rendered
or for any other purpose.
ARTICLE IX
INDEMNIFICATION
The Corporation may indemnify any director, officer, employee or agent of the
Corporation, or other person, to the fullest extent permitted by Section 145 of
the General Corporation Law of the State of Delaware.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 1. Fiscal Year: The fiscal year of the Corporation shall commence on
the first day of January and end on the last day of December.
Section 2. Corporate Seal: The corporate seal shall be in such form as
approved by the Board of Directors and may be
altered at their pleasure. The corporate seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
Section 3. Notices: Except as otherwise expressly provided, any notice
required by these By-laws to be given shall be sufficient if given by depositing
the same in a post office or letter box in a sealed postpaid wrapper addressed
to the person entitled thereto at his address, as the same appears upon the
books of the Corporation, or by telegraphing or cabling the same to such person
at such addresses; and such notice shall be deemed to be given at the time it is
mailed, telegraphed or cabled.
Section 4. Waiver of Notice: Any stockholder or director may at any time, by
writing or by telegraph or by cable, waive any notice required to be given under
these By-laws, and if any stockholder or director shall be present at any
meeting his presence shall constitute a waiver of such notice.
Section 5. Checks, Drafts, etc.: All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the Corporation shall be signed by such officer or officers, agent or agents of
the Corporation, and in such manner, as shall from time to time be designated by
resolution of the Board of Directors.
Section 6. Deposits: All funds of the Corporation shall be deposited from time
to time to the credit of the Corporation in such bank or banks, trust companies
or other depositories as the Board of Directors may select, and, for the
purpose of such
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deposit, checks, drafts, warrants and other orders for the payment of money
which are payable to the order of the Corporation, may be endorsed for deposit,
assigned and delivered by any officer of the Corporation, or by such agents of
the Corporation as the Board of Directors or the President may authorize for
that purpose.
Section 7. Voting Stock of Other Corporations: Except as otherwise ordered by
the Board of Directors or the Executive Committee, the President or the
Treasurer shall have full power and authority on behalf of the Corporation to
attend and to act and to vote at any meeting of the stockholders of any
corporation of which the Corporation is a stockholder or at any meeting of the
partners of a partnership of which the Corporation is a partner and to execute a
proxy to any other person to represent the Corporation at any such meeting, and
at any such meeting the President or the Treasurer or the holder of any such
proxy, as the case may be, shall possess and may exercise any and all rights and
powers incident to ownership of such stock or partnership interest and which, as
owner thereof, the Corporation might have possessed and exercised if present.
The Board of Directors or the Executive Committee may from time to time confer
like powers upon any other person or persons.
ARTICLE XI
AMENDMENTS
The Board of Directors shall have the power to make, rescind, alter, amend and
repeal these By-laws, provided, however, that the stockholders shall have power
to rescind, alter, amend or repeal any by-laws made by the Board of Directors,
and to enact by-laws which if so expressed shall not be rescinded, altered,
amended or repealed by the Board of Directors. No change of the time or place
for the annual meeting of the stockholders for the election of directors shall
be made except in accordance with the laws of the State of Delaware.
Dated : January 30, 1996
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End of By-laws
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