Exhibit 3.46
FIRST
AMENDMENT
TO
LIMITED PARTNERSHIP AGREEMENT
OF
W2007 AQUARIUS PROPCO, L.P.
Dated as of June 25, 2009
THIS FIRST AMENDMENT (this “
Amendment ”) TO THE LIMITED PARTNERSHIP AGREEMENT OF
W2007 AQUARIUS PROPCO, L.P. dated February 20, 2008 (the
“ Partnership Agreement ”) is entered into as of
June 25, 2009, by W2007 Aquarius Gen-Par, L.L.C., a Delaware
limited liability company, as the general partner (“
General Partner ”), and W2007 ACEP First Mezzanine B
Borrower, L.P., a Delaware limited partnership, as the limited
partner (“ Limited Partner ”; and together with
General Partner, the “ Partners ”). All
capitalized terms used herein and not otherwise defined shall have
the meanings assigned to them in the Partnership
Agreement.
WHEREAS, W2007 Aquarius Propco, L.P. (the
“ Partnership ”) desires to incur indebtedness
in the original principal amount of three hundred and fifty million
dollars ($350,000,000) (the “ Loan ”) 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, as lender (“
Lender ”), 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,
Stratosphere Gaming LLC, a Nevada limited liability company,
Aquarius Gaming LLC, a Nevada limited liability company, the
Partnership, the Limited Partner, W2007 ACEP First Mezzanine A
Borrower, L.P., a Delaware limited partnership, W2007 Stratosphere
Land Propco, L.P., a Delaware limited partnership, W2007
Stratosphere 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; and
WHEREAS, as a condition to Lender
providing the Loan to the Partnership, Lender has required that the
Partnership amend the Partnership Agreement in the following
manner.
NOW, THEREFORE, the Partners hereby
amend the Partnership Agreement as follows:
1.
Section 2(a) of the Partnership Agreement shall be
deleted in its entirety and replaced by the following:
2. Purpose. (a)
The Partnership is continued solely for the purpose of acquiring,
financing, refinancing, holding, developing, owning, selling,
leasing, transferring, exchanging, managing, maintaining and
operating the Property, entering into and performing its
obligations under the Loan Documents (as defined below),
refinancing the Property in connection with a permitted repayment
of the Loan (as defined below) in accordance with the Loan
Agreement (as defined below) 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 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 may be amended, supplemented or otherwise modified from time
to time in accordance with the terms thereof, the “ Loan
Agreement ”), among Lender, 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, Stratosphere Gaming LLC, a Nevada limited
liability company, Aquarius Gaming LLC, a Nevada limited liability
company, the Partnership, the Limited Partner, W2007 Stratosphere
Land Propco, L.P., a Delaware limited partnership, W2007 ACEP First
Mezzanine A Borrower, L.P., a Delaware limited partnership, W2007
Stratosphere 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
an
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