Exhibit 3.66
LIMITED PARTNERSHIP
AGREEMENT
OF
W2007 STRATOSPHERE PROPCO,
L.P.
This LIMITED PARTNERSHIP AGREEMENT
of W2007 Stratosphere 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 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 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 (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 Nevada
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 LLC and
Stratosphere 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 LLC and the LLC, Stratosphere LLC granted,
bargained, sold and conveyed the property described on
Exhibit C attached hereto (the “ Property
”) to the LLC;
WHEREAS, pursuant to that certain
Omnibus Assignment of Membership Interests (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 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 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 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 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:
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1.
Name . The name of the
Partnership continued hereby is W2007 Stratosphere 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 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 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, 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.
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(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 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
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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 Gen-Par, L.L.C. The name of the sole limited
partner of the Partnership is W2007 ACEP First Mezzanine A
Borrower, L.P.
(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 Limited 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.
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6.
Management of
the Partnership . The management of the
Partnership shall be vested exclusively in the General
Partner. The Limited Partner 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.
7.
Authority of
the General Partner . (a)
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