Exhibit 3.42
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
W2007 AQUARIUS GEN-PAR, L.L.C.
This AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT of W2007 Aquarius 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 B 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, 2008
(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 Aquarius LLC and
Aquarius 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 Gen-Par, L.L.C., a Delaware limited liability company,
W2007 Stratosphere Land 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 Aquarius 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) Aquarius 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) Aquarius 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, Aquarius 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 Aquarius 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 Aquarius 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 Stratosphere 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 B 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
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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
and performing on b
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