Exhibit 3.63
AMENDED AND
RESTATED
LIMITED LIABILITY COMPANY
AGREEMENT
OF
W2007 STRATOSPHERE GEN-PAR,
L.L.C.
This AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT of W2007 Stratosphere Gen-Par, L.L.C.
(the “ Company ”), dated and effective as of
February 20, 2008 (as amended from time to time, this “
Agreement ”), by and between (i) W2007 ACEP First
Mezzanine A Borrower, L.P., a Delaware limited partnership, in its
capacity as the sole economic member of the Company (the “
Economic Member ”); and (ii) Dennis E. Howarth and
Carolyn Danielsson individually in their capacity as the
non-economic members of the Company (the “ Non-Economic
Members ”) (the Economic Member and the Non-Economic
Members, and any additional or substitute members of the Company
are hereinafter each referred to as a “ Member ”
and collectively referred to as the “ Members ”
of the Company).
R E C I
T A L
S
WHEREAS, the Company was formed by
W2007/ACEP Holdings, LLC, a Delaware limited liability company
(“ ACEP Holdings ”), as its sole economic
member, pursuant to the statutes and laws of the State of Delaware
relating to limited liability companies, including, without
limitation, the Delaware Limited Liability Company Act (6 Del. C.
Section 18-101, et seq.), as amended from time to time (the “
DLLCA ”), by (i) the filing of a Certificate of
Formation of the Company, dated as of February 7, 2008, in the
Office of the Secretary of State of the State of Delaware on
February 7, 2008 (the “ Certificate of Formation
”) and (ii) the execution of that certain Limited Liability
Company Agreement dated as of the date hereof and effective as of
February 7 (the “ Original Agreement
”);
WHEREAS, pursuant to that certain
Omnibus Assignment of Interests (Propcos, Propco Gen-Pars, Ninth
Mezz Co-Borrowers & Ninth Mezz Gen-Pars), dated as of the date
hereof, by and among ACEP Holdings, Stratosphere LLC, a Delaware
limited liability company (“ Stratosphere LLC
”), Stratosphere Land LLC, a Delaware limited liability
company (“ Stratosphere Land LLC ”), Aquarius
Gaming LLC, a Nevada limited liability company (“ Aquarius
LLC ”), Arizona Charlie’s, LLC, a Nevada limited
liability company (“ Arizona Charlie’s LLC
”), and Fresca, LLC, a Nevada limited liability company
(“ Fresca LLC ”), among other things, ACEP
Holdings assigned, transferred and conveyed a 100% limited
liability company interest in the Company to Stratosphere LLC and
Stratosphere LLC was admitted to the Company as a member and,
immediately following such admission, ACEP Holdings ceased to be a
member of the Company;
WHEREAS, pursuant to that certain
Omnibus Admission of Non-Economic Members (Propco), dated as of the
date hereof, by and among Stratosphere
LLC, Stratosphere Land LLC, Aquarius
LLC, Arizona Charlie’s LLC, Fresca, LLC, the Company, W2007
Stratosphere Land Gen-Par, L.L.C., a Delaware limited liability
company, W2007 Aquarius Gen-Par, L.L.C., a Delaware limited
liability company, W2007 Arizona Charlie’s Gen-Par, L.L.C., a
Delaware limited liability company, and W2007 Fresca Gen-Par,
L.L.C., a Delaware limited liability company, among other things,
the Company was admitted to W2007 Stratosphere Propco, L.L.C., a
Delaware limited liability company (“ Property Owner
LLC ”), as a non-economic member;
WHEREAS, pursuant to that certain
Omnibus Assignment of Interests (Propcos & Propco Gen-Pars),
dated as of the date hereof, by and among Stratosphere LLC,
Stratosphere Land LLC, Aquarius LLC, Arizona Charlie’s LLC,
Fresca, LLC, the Economic Member and W2007 ACEP First Mezzanine B
Borrower, L.P., a Delaware limited partnership, among other things,
(i) Stratosphere LLC assigned, transferred and conveyed a 100%
limited liability company interest in the Company to the Economic
Member and the Economic Member was admitted to the Company as its
sole equity member, (ii) Stratosphere LLC assigned, transferred and
conveyed a 100% limited liability company interest in the Property
Owner LLC to the Economic Member and the Economic Member was
admitted to the Property Owner LLC as a member and (iii)
immediately following such admissions, Stratosphere LLC both ceased
to be a member of the Company and ceased to be a member of the
Property Owner LLC;
WHEREAS, on the date hereof, the
Property Owner LLC was converted to a limited partnership named
W2007 Stratosphere Propco, L.P. (as so converted, the “
Property Owner ”), pursuant to Section 17-217 of the
Delaware Revised Uniform Limited Partnership Act (6 Del. C.
§ 17-101, et seq .), as amended from time
to time (the “ Act ”), and Section 18-216 of the
DLLCA, by causing the filing with the office of the Secretary of
State of the State of Delaware of a Certificate of Conversion to
Limited Partnership and a Certificate of Limited Partnership (such
conversion, the “ Conversion ”);
WHEREAS, effective as of the time of
the Conversion, (i) the Company was admitted as the sole general
partner of the Property Owner, and the Economic Member was admitted
as the sole limited partner of the Property Owner and (ii) the
Company and the Economic Member continued the business of the
Property Owner LLC without dissolution in the form of a Delaware
limited partnership; and
WHEREAS, the parties hereto now
desire to amend and restate the Original Agreement in its entirety
to reflect that the Economic Member, rather than ACEP Holdings, is
now the Company’s sole economic member and to continue the
Company as a limited liability company for the purposes and on the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, in order to carry
out their intent as expressed above and in consideration of the
mutual agreements hereinafter contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby covenant and agree as
follows:
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1.
Name . The name of the
Company continued hereby is W2007 Stratosphere Gen-Par,
L.L.C.
2.
Company
Purpose . (a) The Company
was formed solely for the purpose of acquiring, financing,
refinancing, holding, owning, selling, transferring, exchanging,
managing and maintaining all of the general partner interests (the
“ General Partner Interests ”) in the Property
Owner, acting as the general partner of the Property Owner,
executing and performing the obligations of the general partner
under the Limited Partnership Agreement of the Property Owner,
dated as of the date hereof (as amended from time to time, the
“ Partnership Agreement ”), and transacting any
and all lawful business that is incident, necessary and appropriate
to accomplish the foregoing. Notwithstanding anything
contained herein to the contrary, unless and until that certain
loan in the original principal amount of one billion one hundred
seven million nine hundred ninety nine thousand nine hundred ten
dollars ($1,107,999,910) (the “ Loan ”) and
evidenced by that certain Loan Agreement, dated as of the date
hereof (as the same may be amended, supplemented or otherwise
modified from time to time in accordance with the terms thereof,
the “ Loan Agreement ”), among Goldman Sachs
Commercial Mortgage Capital, L.P., a Delaware limited partnership
(together with its successors and assigns, “ Lender
”), the Property Owner, W2007 Aquarius Propco, L.P., W2007
Stratosphere Land Propco, L.P., W2007 Arizona Charlie’s
Propco, L.P. and W2007 Fresca Propco, L.P. is no longer
outstanding, or unless otherwise approved by Lender in writing, the
Company shall not engage in any business, and it shall have no
purpose, unrelated to that described in the first sentence of this
Section 2(a) and shall not acquire any real property or own assets
other than such assets and interests as are necessary or desirable
and are not prohibited by the terms of the Loan Agreement for the
Company to own in conjunction with carrying out the purposes of the
Company. Except to the extent permitted in the Loan
Agreement, the Company shall not engage in any business other than
the acquisition, financing, refinancing, holding, ownership, sale,
transferring, exchanging, management and maintenance of the General
Partner Interest.
(b)
The Company, and
the Economic Member or any Officer (as defined herein) on behalf of
the Company, are hereby authorized to execute, deliver and perform
its obligations under all the organizational documents of the
Property Owner (any such actions taken prior to the date hereof are
hereby ratified and confirmed in all respects) and to cause the
Property Owner to enter into, execute, deliver and perform its
obligations under the agreements set forth in Exhibit A attached to
the Partnership Agreement and any and all other documents,
instruments, contracts, papers, certificates, guaranties,
indemnities or agreements necessary, appropriate or desirable to
effect, consummate or facilitate the transactions and arrangements
contemplated by the Loan Agreement (including, without limitation,
financing statements) (the “ Loan Documents ”)
without any further act, vote or approval of any Person (as defined
herein), notwithstanding any other provision of this Agreement to
the contrary. The foregoing authorization shall not be deemed
a restriction on the power of the Economic Member or an Officer to
enter into other agreements on behalf of the Company in accordance
with the terms of this Agreement and the Loan
Agreement.
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(c)
Authorized
Persons . Alan Kava, was an
“authorized person” within the meaning of the Act, for
the purposes of delivering and filing the Certificate of Formation
with the Secretary of State of the State of Delaware. Each of
the Economic Member, Steven Angel, Adam Brooks, Elizabeth Burban,
Anthony Cacioppo, Lacxon Chan, Brahm Cramer, Andrea Gift, David
Gutstadt, Stephen Iorio, Jerome Karr, Alan Kava, Jonathan Langer,
Roy Lapidus, Alexandra Ortved, Stuart Rothenberg, Josephine
Scesney, Lauren Wainwright, Peter Weidman, Jennifer Wong and Lauren
Zucker is hereby designated as an “authorized person”
within the meaning of the Act and any one of such authorized
persons is hereby authorized and shall execute, deliver and file
any other certificates or documents (and any amendments and/or
restatements thereof) on behalf of the Company, including, but not
limited to, those that are necessary for the appointment and
engagement of the individuals acting as the initial Non-Economic
Members. The existence of the Company as a separate legal
entity shall continue until cancellation of the Certificate of
Formation of the Company as provided in this Agreement and under
the Act.
3.
Registered
Office; Registered Agent . The address of the
registered office of the Company in the State of Delaware is c/o
The Corporation Trust Company, Corporation Trust Center, 1209
Orange Street, Wilmington, New Castle County, Delaware 19801.
The name and address of the registered agent of the Company for
service of process on the Company in the State of Delaware is The
Corporation Trust Company, Corporation Trust Center, 1209 Orange
Street, Wilmington, New Castle County, Delaware 19801.
4.
Principal
Place of Business . The principal place
of business of the Company is 85 Broad Street, 10
th
Floor, New
York, New York 10004.
5.
Members
. (a)
The name of the sole Economic Member of the Company is W2007
ACEP First Mezzanine A Borrower, L.P. The names of the
initial Non-Economic Members of the Company are Dennis E. Howarth
and Carolyn Danielsson. The Non-Economic Members shall be
appointed by the Economic Member and shall fulfill the independence
requirements set forth in Section 5(d) hereof. The Economic
Member shall at all times cause there to be at least two
non-economic members who fulfill the independence requirements set
forth in Section 5(d) hereof, who, to the fullest extent permitted
by law, including Section 18-1101(c) of the Act, shall consider
only the interests of the Company in acting or otherwise voting on
matters referred to in Section 11 and who is bound by this
Agreement.
(b)
Upon the
occurrence of any event that causes a Non-Economic Member to cease
to be a member of the Company, unless and until the Loan is no
longer outstanding, a new Non-Economic Member, who shall fulfill
the independence requirements set forth in Section 5(d) hereof,
shall be automatically appointed and admitted to the Company
forthwith and no decision requiring the consent of a Non-Economic
Member shall be taken in the interim period before a new
Non-Economic Member is appointed and admitted. No resignation
or removal of a Non-Economic
4
Member, and no appointment
and admission of a successor Non-Economic Member, shall be
effective until such successor shall have accepted his or her
appointment and admission as a Non-Economic Member by a written
instrument in which he or she agrees to be bound by all of the
terms and conditions of this Agreement applicable to a Non-Economic
Member. All right, power and authority of a Non-Economic
Member shall be limited to the extent necessary to exercise those
rights and perform those duties specifically set forth in this
Agreement. In exercising its rights and performing its duties
under this Agreement, each Non-Economic Member shall have a
fiduciary duty of loyalty similar to that of a director of a
business corporation organized under the General Corporation Law of
the State of Delaware. No Non-Economic Member shall at any
time serve as trustee in bankruptcy for any Affiliate (as defined
herein) of the Company.
(c)
For the purposes
of this Agreement, “ Affiliate ” shall mean, as
to any Person (as defined herein), any other Person that, directly
or indirectly, is in control of, is controlled by or is under
common control with, such Person. As used in this definition,
the term “control” means the ownership, directly or
indirectly, of at least 51% of the equity interests in, and the
right to at least 51% of distributions from such Person and/or the
possession, directly or indirectly, of the power to direct or cause
the direction of management, policies or activities of a Person,
whether through ownership of voting securities, by contract or
otherwise.
(d)
Each Non-Economic
Member shall be an individual who is duly appointed as a member of
the Company and who is not, and has not been at any time during the
five (5) years preceding such appointment, and will not while
serving as a Non-Economic Member, be any of the
following:
(i)
a member,
partner, equityholder, manager, director, officer or employee of
the Property Owner, the Company (other than as a Non-Economic
Member), the Economic Member or any of their respective
equityholders or Affiliates (other than as an independent director,
manager or member of an Affiliate of the Company or the Economic
Member that is required by a creditor to be a single purpose
bankruptcy remote entity, provided that such independent director,
manager or member is employed by a company that routinely provides
professional independent directors, managers or
members);
(ii)
a creditor,
supplier or service provider (including provider of professional
services) to the Property Owner, the Company, the Economic Member
or any of their respective equityholders or Affiliates (other than
a company that routinely provides professional independent
managers, directors or members and which also provides lien search
and other similar services to the Property Owner, the Company, the
Economic Member or any of their respective equityholders or
Affiliates in the ordinary course of business);
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(iii)
a member of the
immediate family by blood, marriage or adoption of any such member,
partner, equityholder, manager, director, officer, employee,
creditor, supplier or service provider; or
(iv)
a Person that
controls (whether directly, indirectly or otherwise) any of (i),
(ii) or (iii) above.
Notwithstanding anything herein to
the contrary, a Non-Economic Member may not simultaneously serve as
a Non-Economic Member of the Company and a non-economic member or
independent director of a special purpose entity that owns a direct
or indirect equity interest in any other Borrower (as defined in
the Loan Agreement); provided, however, that one Non-Economic
Member of the Company (but not both Non-Economic Members
simultaneously) may serve as an independent director of the
Single-Purpose Equityholders (as defined in the Loan Agreement) of
each Mezzanine Borrower (as defined in the Loan
Agreement).
(e)
For the purposes
of this Agreement, “ Person ” shall mean any
individual, corporation, partnership, joint venture, limited
liability company, estate, trust, unincorporated association, any
federal, state, county or municipal government or any bureau,
department or agency thereof and any fiduciary acting in such
capacity on behalf of any of the foregoing.
(f)
Subject to the
express terms of this Agreement, which shall take precedence, the
Members shall have all of the rights and powers granted to the
Members pursuant to the Act.
(g)
To the fullest
extent permitted by law, each Member waives any and all rights that
it may have to maintain an action for partition of the
Company’s property.
(h)
No Member shall
have the right, privilege, or power to perform any act on behalf of
the Company, including, without limitation, executing or delivering
any contracts, agreements, assignments, leases, mortgages and other
security instruments and deeds and all other documents and
instruments, except to the extent expressly provided in this
Agreement.
(i)
Each of the
Non-Economic Members agrees to remain independent from the Economic
Member and perform its obligations under this Agreement, agrees to
be a member of the Company for the limited purposes provided herein
and to perform its obligations as a Non-Economic Member hereunder,
and the Company and the Economic Members agree that the
Non-Economic Members will be members of the Company for such
limited purposes. The Company, the Economic Member and the
Non-Economic Members agree that the Non-Economic Members: (i)
will not make, and will not be obligated to make, a contribution to
the Company; (ii) will not own, and will not be obligated to
acquire an interest in the Company; and (iii) will have no
management, approval, voting, consent or veto rights in the
Company, other than to the extent that their
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affirmative vote, approval
or consent is required for the Company or the Economic Member to
perform certain acts or take certain actions as expressly provided
in this Agreement. The Non-Economic Members may not bind the
Company.
6.
Management and
Control . The Company shall be
managed by the Economic Member, which shall have the right, power,
authority and discretion acting alone to conduct the business and
affairs of the Company, subject to Section 21, to take any and all
actions (including, without limitation, executing, delivering
an
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