Exhibit 3.73
LIMITED PARTNERSHIP
AGREEMENT
OF
W2007 STRATOSPHERE LAND PROPCO,
L.P.
This LIMITED PARTNERSHIP AGREEMENT
of W2007 Stratosphere Land Propco, L.P. (the “
Partnership ”), 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 limited partner of the Partnership (the
“ Limited Partner ”); and (ii) W2007
Stratosphere Land 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 Partner 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, W2007 Stratosphere Land
Propco, L.L.C. (the “ LLC ”) was formed by
W2007/ACEP Holdings, LLC, a Delaware limited liability company
(“ ACEP Holdings ”), as its sole equity 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
“ LLC Act ”), by (i) the filing of a
Certificate of Formation of the LLC, dated as of February 7,
2008, in the Office of the Secretary of State of the State of
Delaware on February 7, 2008 and (ii) the execution of
that certain Limited Liability Company Agreement dated as of the
date hereof and effective as of February 7, 2008;
WHEREAS, pursuant to that certain
Omnibus Assignment of Interests (90 Oakey Holdings, LLC &
Equity VII, LLC), dated as of February 19, 2008, by and among
W2007 Finance Sub, LLC, a Delaware limited liability company
(“ Finance Sub ”), Whitehall Parallel Global
Real Estate Limited Partnership 2007, a Delaware limited
partnership (“ Whitehall Parallel ”), and the
LLC, (i) Finance Sub and Whitehall Parallel collectively
assigned, transferred and conveyed 100% of the limited liability
company interests in 90 West Oakey Holdings, LLC, a Delaware
limited liability company (“ 90 West Oakey Holdings
”), to the LLC and the LLC was admitted to 90 West Oakey
Holdings as its sole equity member, (ii) Finance Sub and
Whitehall Parallel collectively assigned, transferred
and conveyed 100% of the limited liability company interests
in Equity VII, LLC, a Delaware limited liability company (“
Equity VII ”), to the LLC and the LLC was admitted to
Equity VII as its sole equity member and (iii) immediately
following such admissions, Finance Sub and Whitehall Parallel each
ceased to be a member of each of 90 West Oakey Holdings and Equity
VII;
WHEREAS, pursuant to that certain
Omnibus Agreement of Merger (90 West Oakey Holdings LLC; 90 West
Oakey, LLC; & Equity VII, LLC), dated as of
February 19, 2008, by and among the LLC, Equity VII, 90 West
Oakey Holdings and 90 West Oakey, LLC, a Delaware limited liability
company (“ 90 West Oakey ”), and pursuant to
Section 18-209 of the LLC Act, (i) 90 West Oakey was
merged with and into 90 West Oakey Holdings, with 90 West Oakey
Holdings continuing as the surviving entity, as evidenced by the
filing with the Office of the Secretary of State of the State of
Delaware of a Certificate of Merger (the “ 90 West Oakey
Merger ”) on February 19, 2008, (ii) upon the
effectiveness of the 90 West Oakey Merger the separate existence of
90 West Oakey ceased, 90 West Oakey Holdings acquired all of the
rights privileges, powers and franchises of 90 West Oakey and all
of the property of 90 West Oakey vested in 90 West Oakey Holdings,
(iii) each of 90 West Oakey Holdings and Equity VII merged
with and into the LLC, with the LLC continuing as the surviving
entity, as evidenced by the filing with the Office of the Secretary
of State of the State of Delaware of Certificates of Merger (the
“ Stratosphere Land Merger ”) on
February 19, 2008 and (iv) upon the effectiveness of the
Stratosphere Land Merger the separate existence of each of 90
West Oakey Holdings and Equity VII ceased, the LLC acquired all of
the rights privileges, powers and franchises of each of 90 West
Oakey Holdings and Equity VII and all of the property of each
of 90 West Oakey Holdings and Equity VII vested in the
LLC.
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 LLC to Stratosphere Land LLC and
Stratosphere Land LLC was admitted to the LLC as a member and,
immediately following such admission, ACEP Holdings ceased to be a
member of the LLC;
WHEREAS, pursuant to that certain
Grant, Bargain, Sale Deed, dated as of the date hereof, by and
between Stratosphere Land LLC and the LLC, Stratosphere LLC
granted, bargained, sold and conveyed the property described on
Exhibit C attached hereto (together with the real
property acquired by the LLC as a result of the 90 West Oakey
Merger and the Stratosphere Land Merger, the “
Property ”) to the LLC;
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 General
Partner, W2007 Stratosphere 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
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W2007 Fresca Gen-Par, L.L.C., a
Delaware limited liability company, among other things, the General
Partner was admitted to the 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 Limited Partner and W2007 ACEP First
Mezzanine B Borrower, L.P., a Delaware limited partnership, among
other things, (i) Stratosphere Land LLC assigned, transferred
and conveyed a 100% limited liability company interest in the
General Partner to the Limited Partner and the Limited Partner was
admitted to the General Partner as its sole equity member,
(ii) Stratosphere Land LLC assigned, transferred and conveyed
a 100% limited liability company interest in the LLC to the Limited
Partner and the Limited Partner was admitted to the LLC as a member
and (iii) immediately following such admissions, Stratosphere
LLC both ceased to be a member of the General Partner and ceased to
be a member of the LLC;
WHEREAS, on the date hereof, the LLC
was converted to a limited partnership 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 LLC Act, 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 (the “ Certificate of
Limited Partnership ” and such conversion, the “
Conversion ”);
WHEREAS, effective as of the time of
the Conversion, (i) the Limited Liability Company Agreement of
the LLC and all other existing organizational documents of the LLC
were replaced and superseded in their entirety by this Agreement
and the Certificate of Limited Partnership, (ii) the General
Partner was admitted as the sole general partner of the
Partnership, and the Limited Partner was admitted as the sole
limited partner of the Partnership and (iii) the General
Partner and the Limited Partner continued the business of the LLC
without dissolution in the form of a Delaware limited partnership
governed by 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:
1.
Name . The name of the Partnership continued hereby is
W2007 Stratosphere Land Propco, L.P.
2.
Purpose . (a) The Partnership was solely formed
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
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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 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 Partnership, W2007 Aquarius Propco, L.P., W2007
Stratosphere 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, 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) 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. Except to the extent permitted
in the Loan Agreement, the Partnership shall not engage in any
business other than the acquisition, financing, refinancing,
holding, development, ownership, sale, leasing, transferring,
exchanging, management, maintenance and operation of the
Property.
(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 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 Limited Partner to
cease to be a limited partner of the Partnership (other than upon
an assignment by the 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
Limited Partner ceasing to be a limited partner of the Partnership,
automatically be admitted to the Partnership as a Special Limited
Partner (as defined below) and shall continue the Partnership
without dissolution. No Special
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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.
5.
Partners . (a) The name of the sole general
partner of the Partnership is W2007 Stratosphere Land Gen-Par,
L.L.C. The name of the sole limited partner of the
Partnership is W2007 ACEP First Mezzanine A Borrower,
L.P.
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(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
associatio
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