Exhibit 3.39
AMENDED AND RESTATED LIMITED
PARTNERSHIP AGREEMENT
OF
W2007 ACEP FIRST MEZZANINE B
BORROWER, L.P.
This AMENDED AND RESTATED LIMITED
PARTNERSHIP AGREEMENT of W2007 ACEP First Mezzanine B Borrower,
L.P. (the “ Partnership ”), dated as of
June 25, 2009 and effective as of June 25, 2009 (as
amended from time to time, this “ Agreement ”),
by and among Aquarius Gaming LLC, a Nevada Limited Liability
Company, Arizona Charlie’s, LLC, a Nevada limited liability
company and Fresca, LLC, a Nevada limited liability company,
individually in their capacity as the limited partners of the
Partnership (each a “ Limited Partner ” and
collectively, the “ Limited Partners ”); and
(ii) W2007 ACEP First Mezzanine B Gen-Par, L.L.C., a Delaware
limited liability company, in its capacity as the sole general
partner of the Partnership (the “ General Partner
”) (the Limited Partners and the General Partner, and each
substitute or additional partner of the Partnership, are
hereinafter each referred to as a “ Partner ”
and collectively referred to as the “ Partners
”).
R E C I T A L S
WHEREAS, the General Partner and
W2007 ACEP Second Mezzanine B Borrower, L.P. (the “
Original Limited Partner ”) executed a limited
partnership agreement, dated as of February 20, 2008 (the
“ Original Agreement ”), and caused a
Certificate of Limited Partnership of the Partnership, dated as of
February 7, 2008, to be filed in the Office of the Secretary
of State of the State of Delaware on February 7, 2008, which
formed a limited partnership pursuant to and in accordance with the
statutes and laws of the State of Delaware relating to limited
partnerships, including, without limitation, the Delaware Revised
Uniform Limited Partnership Act (6 Del. C. Section 17-101, et
seq.), as amended from time to time (the “ Act
”), and pursuant to the terms and provisions of the Original
Agreement.
WHEREAS, pursuant to that certain
Agreement and Plan of Merger dated as of the date hereof, between
W2007 ACEP Ninth Mezzanine B Borrower, L.P., a Delaware limited
partnership, W2007 ACEP Eighth Mezzanine B Borrower, L.P., a
Delaware limited partnership, W2007 ACEP Seventh Mezzanine B
Borrower, L.P., a Delaware limited partnership, W2007 ACEP Sixth
Mezzanine B Borrower, L.P., a Delaware limited partnership, W2007
ACEP Fifth Mezzanine B Borrower, L.P., a Delaware limited
partnership, W2007 ACEP Fourth Mezzanine B Borrower, L.P., a
Delaware limited partnership, W2007 ACEP Third Mezzanine B
Borrower, L.P., a Delaware limited partnership, W2007 ACEP Second
Mezzanine B Borrower, L.P., a Delaware limited partnership, and the
Partnership (the “ Merger Agreement ”), among
other things, the parties to the Merger Agreement merged with and
into the Partnership;
WHEREAS, pursuant to the Merger
Agreement the Original Limited Partner assigned, transferred and
conveyed its entire interest in the Partnership to the Limited
Partners and the Limited Partners were admitted to the Partnership
as limited partners and, immediately following such admissions, the
Original Limited Partner ceased to be a limited partner of the
Partnership; and
WHEREAS, the parties hereto now
desire to amend and restate the Original Agreement in its entirety
to reflect that the Limited Partners, rather than Original Limited
Partner, are now the limited partners of the Partnership and to
continue the Partnership as a limited liability partnership for the
purposes and on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, the Partners, by
execution of this Agreement, do hereby continue the Partnership as
a limited partnership pursuant to the Act upon the following terms
and conditions:
1.
Name . The name of the
Partnership continued hereby is W2007 ACEP First Mezzanine B
Borrower, L.P.
2.
Purpose.
(a)
The Partnership is continued solely for the purpose of acquiring,
financing, refinancing, holding, owning, selling, leasing,
transferring, exchanging, managing, and maintaining (A) all of
the limited liability company interests in W2007 Aquarius Gen-Par,
L.L.C., a Delaware limited liability company (“ Aquarius
Gen-Par ”), W2007 Arizona Charlie’s Gen-Par,
L.L.C., a Delaware limited liability company (“ Arizona
Charlie’s Gen-Par ”), and W2007 Fresca Gen-Par,
L.L.C., a Delaware limited liability company (“ Fresca
Gen-Par ”) (the “ Economic Interests
”) and (B) a limited partner interest in W2007 Aquarius
Propco L.P., a Delaware limited partnership (“ Aquarius
Propco ”), W2007 Arizona Charlie’s Propco, L.P., a
Delaware limited partnership (“ Arizona Charlie’s
Propco ”), and W2007 Fresca Propco, L.P., a Delaware
limited partnership (“ Fresca Propco ”) (the
“ Limited Partner Interests ” and, together with
the Economic Interests, the “ Collateral ”),
(ii) acting as the limited partner of each of Aquarius Propco,
Arizona Charlie’s Propco and Fresca Propco, (iii) acting
as the economic member of each of Aquarius Gen-Par, Arizona
Charlie’s Gen-Par, and Fresca Gen-Par, (iv) executing
and performing the obligations under the Limited Liability Company
Agreement of each of Aquarius Gen-Par, Arizona Charlie’s
Gen-Par, and Fresca Gen-Par, each effective as of February 20,
2008, and as amended as of the date hereof (as amended from time to
time, the “ Limited Liability Company Agreements
”), (v) executing and performing the obligations under
the Limited Partnership Agreement of each of Aquarius Propco,
Arizona Charlie’s Propco and Fresca Propco, each effective as
of February 20, 2008, and as amended as of the date hereof (as
amended from time to time, the “ Partnership
Agreements ”), and (vi) 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 three hundred and fifty million
dollars ($350,000,000) (the “ Loan ”) and
evidenced by that certain Loan Agreement, dated as of the date
hereof (as the same
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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 ”), Wells Archon Group, L.P., as administrative
agent, Wells Fargo Bank, N.A., as collateral agent, and American
Casino & Entertainment Properties LLC, a Delaware limited
liability company, Arizona Charlie’s, LLC, a Nevada limited
liability company, Fresca, LLC, a Nevada limited liability company,
Aquarius Gaming LLC, a Nevada limited liability company,
Stratosphere Gaming LLC, a Nevada limited liability company, the
Partnership, W2007 ACEP First Mezzanine A Borrower, L.P., a
Delaware limited partnership, W2007 Aquarius Propco, L.P., a
Delaware limited partnership, W2007 Stratosphere Land Propco, L.P.,
a Delaware limited partnership, W2007 Arizona Charlie’s
Propco, L.P., a Delaware limited partnership, and W2007 Fresca
Propco, L.P., a Delaware limited partnership, as borrowers, is no
longer outstanding, or unless otherwise approved by Lender or
Administrative Agent (as directed by the Required Lenders), the
Partnership 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) (except to the extent expressly permitted in
the Loan Agreement) 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 Partnership to own in conjunction with carrying out the
purposes of the Partnership.
(b)
The Partnership,
and the General Partner on behalf of the Partnership, are hereby
authorized to enter into, execute, deliver and perform the
agreements set forth in Exhibit A attached hereto, to
which the Partnership is a party, 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 General Partner to enter into
other agreements on behalf of the Partnership in accordance with
the terms of this Agreement and the Loan Agreement
(c)
The existence of
the Partnership as a separate legal entity shall continue until
cancellation of the Certificate of Limited Partnership of the
Partnership as provided in this Agreement and under the
Act.
(d)
Upon the
occurrence of any event that causes the last remaining Limited
Partner to cease to be a limited partner of the Partnership (other
than upon an assignment by a Limited Partner of all of its limited
partner interest in the Partnership and the admission of the
transferee as a limited partner pursuant to Sections 14 and 15),
the person acting as a Springing Limited Partner (as defined below)
shall, without any action of any Person and simultaneously with the
last remaining Limited Partner ceasing to be a limited partner of
the Partnership, automatically be admitted to the Partnership as
a
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Special Limited Partner (as
defined below) and shall continue the Partnership without
dissolution. No Special Limited Partner may resign from the
Partnership or transfer its rights as Special Limited Partner
unless a successor Special Limited Partner has been admitted to the
Partnership as Special Limited Partner by executing a counterpart
to this Agreement; provided , however , the Special
Limited Partner shall automatically cease to be a limited partner
of the Partnership upon the admission to the Partnership of a
substitute Limited Partner. The Special Limited Partner shall
be a limited partner of the Partnership that has no interest in the
profits, losses and capital of the Partnership and has no right to
receive any distributions of Partnership assets. A Special
Limited Partner shall not be required to make any capital
contributions to the Partnership and shall not receive a limited
partner interest in the Partnership. A Special Limited
Partner, in its capacity as Special Limited Partner, may not bind
the Partnership. Except as required by any mandatory
provision of the Act or this Agreement, the Special Limited
Partner, in its capacity as Special Limited Partner, shall have no
right to vote on, approve or otherwise consent to any action by, or
matter relating to, the Partnership, including, without limitation,
the merger, consolidation or conversion of the Partnership.
In order to implement the admission to the Partnership of the
Special Limited Partner, the person acting as a Springing Limited
Partner shall execute a counterpart to this Agreement. Prior
to its admission to the Partnership as Special Limited Partner, the
person acting as a Springing Limited Partner shall not be a limited
partner of the Partnership.
“ Special Limited
Partner ” means, upon such Person’s admission to
the Partnership as a limited partner of the Partnership pursuant to
this Section 2(d), a person acting as a Springing Limited
Partner, in such person’s capacity as a limited partner of
the Partnership. A Special Limited Partner shall only have
the rights and duties expressly set forth in this
Agreement.
“ Springing Limited
Partner ” means a Person who is not a limited partner,
but who has executed a counterpart of this Agreement in order that,
upon the occurrence of the conditions set forth in this
Section 2(d), such Person can become the Special Limited
Partner in order that the Partnership at all times shall have at
least one limited partner.
3.
Registered
Office; Registered Agent . The address of the
registered office of the Partnership 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
Partnership for service of process on the Partnership 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 Partnership is 85 Broad Street, 10
th
Floor, New
York, New York 10004.
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5.
Partners
. (a)
The name of the sole general partner of the Partnership is W2007
ACEP First Mezzanine B Gen-Par, L.L.C. The names of the
limited partners of the Partnership are Aquarius Gaming LLC,
Arizona Charlie’s, LLC and Fresca, LLC.
(b)
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
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.
(c)
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.
(d)
Subject to the
express terms of this Agreement, which shall take precedence, the
Partners shall have all of the rights and powers granted to the
Partners pursuant to the Act.
(e)
To the fullest
extent permitted by law, each Partner waives any and all rights
that it may have to maintain an action for partition of the
Partnership’s property.
(f)
No Limited
Partner shall have the right, privilege, or power to perform any
act on behalf of the Partnership, including, without limitation,
executing or delivering any contracts, agreements, assignments,
leases, mortgages and other security instruments and deeds and all
other documents and instruments.
(g)
Notwithstanding
anything to the contrary, so long as the Loan is outstanding,
(i) the Partnership shall have one general partner which, to
the fullest extent permitted by law, including
Section 17-1101(d) of the Act, shall consider only the
interests of the Partnership and (ii) the General Partner
shall at all times have at least two Non-Economic Members (as
defined in the Amended and Restated Liability Company Agreement of
the General Partner, dated as of the date hereof (the “
Limited Liability Company Agreement of the General Partner
”).
(h)
Subject to
Section 18, a Partner may act by written consent.
6.
Management of
the Partnership . The management of the
Partnership shall be vested exclusively in the General
Partner. The Limited Partners shall have no part in the
management of the Partnership and shall have no authority or right
to act on behalf of the Partnership in connection with any
matter.
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7.
Authority of
the General Partner . (a) Subject to
Section 18, the General Partner shall have the power on behalf
and in the name of the Partnership to carry out any and all of the
objects and purposes of the Partnership set forth in Section 2
and to perform all acts which it may deem necessary or advisable
except to the extent otherwise provided in this Agreement
(including in Section 18).
(b)
The Limited
Partners agree that all determinations, decisions and actions made
or taken by the General Partner shall be conclusive and absolutely
binding upon the Partnership, the Limited Partners and their
respective successors, assigns and personal
representatives.
(c)
No Partner shall
have the authority to take any action that will cause the
Partnership to violate this Agreement.
8.
Organizational
Expenses . The General Partner
shall be solely responsible for the expenses of organizing the
Partnership.
9.
Bank
Account . All funds of the
Partnership shall be deposited in a bank account or accounts opened
in the name of the Partnership. The General Partner shall
determine the institution or institutions at which such accounts
will be opened and maintained, the types of accounts, and the
Persons who will have authority with respect to the accounts and
the funds maintained therein.
10.
Dissolution
. Subject
to Section 18 of this Agreement, the Partnership shall
dissolve, and its affairs shall be wound up upon the first to occur
of the following: (a) unless the Loan is still
outstanding, the sale or disposition of all of the
Partnership’s assets and receipt of the final payment of any
installment obligation received as a result of any such sale or
disposition, (b) unless the Loan is still outstanding, the
written consent of the General Partner, which consent of the
General Partner shall require, in turn, the prior unanimous written
consent of its members (including both of its Non-Economic Members
(as defined in the Limited Liability Company Agreement of the
General Partner)) and managers, if any, (c) the occurrence of
an event of withdrawal (as defined in the Act) with respect to a
General Partner, other than an event of withdrawal set forth in
Section 17-402(a)(4) or (5) of the Act;
provided , the Partnership shall not be dissolved and
required to be wound up in con
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