EXHIBIT 3.2
LIMITED LIABILITY COMPANY AGREEMENT
OF
AMERICAN CASINO & ENTERTAINMENT PROPERTIES LLC,
A LIMITED LIABILITY COMPANY ORGANIZED UNDER THE LAWS OF THE STATE OF DELAWARE
Dated as of December 29, 2003
TABLE OF CONTENTS
PAGE
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I. DEFINITIONS ............................................................ 1
1.1. Certain Definitions ........................................... 1
II. FORMATION ............................................................. 1
2.1. Formation ..................................................... 1
2.2. Name .......................................................... 2
2.3. Purposes ...................................................... 2
2.4. Term .......................................................... 2
2.5. Amendments to the Certificate, Qualification in Other States .. 2
2.6. Principal Office .............................................. 2
2.7. Registered Agent and Office ................................... 2
III. CAPITAL CONTRIBUTIONS AND LIABILITY .................................. 3
3.1. Member Capital Contributions .................................. 3
3.2. Member's Liability ............................................ 3
IV. TITLE TO PROPERTY ..................................................... 3
4.1. Title to Property ............................................. 3
V. MANAGEMENT OF COMPANY .................................................. 3
5.1. Management .................................................... 3
5.2. Officers ...................................................... 3
VI. PROFITS AND LOSSES AND DISTRIBUTIONS .................................. 6
6.1. Profits and Losses ............................................ 6
VII. GOVERNING LAW ........................................................ 6
7.1. Governing Law ................................................. 6
VIII. miscellaneous ....................................................... 6
8.1. Gaming Restrictions ........................................... 6
8.2. Amendments .................................................... 6
8.3. Captions, Exhibits ............................................ 6
8.4. Severability .................................................. 6
THIS LIMITED LIABILITY COMPANY AGREEMENT OF AMERICAN CASINO &
ENTERTAINMENT PROPERTIES LLC (the "Company"), is made effective for all purposes
as of December 29, 2003 (the "Operating Agreement"), by American Entertainment
Properties Corp., a Delaware corporation, as the sole member and manager of the
Company ("Member").
W I T N E S S E T H:
WHEREAS, the Company was formed on December 29, 2003 under the Delaware
Limited Liability Company Act (the "Act"), pursuant to a Certificate of
Formation filed with the Secretary of State of the State of Delaware on December
29, 2003, and the Member hereby adopts and ratifies the Certificate of Formation
and all acts taken by the sole organizer in connection therewith;
NOW, THEREFORE, for and in consideration of the premises and the
agreements herein contained, the Member agrees as follows:
I. DEFINITIONS
1.1. Certain Definitions. Capitalized words and phrases used and not
otherwise defined shall have the following meanings:
"Delaware Act" shall mean the Delaware Limited Liability Company Act, 6
Del.C.Section 18-101 et seq., as amended and as may be amended , and any
successor to such statute.
"Gaming and Entertainment Properties" shall mean the properties owned by
the entities which are the subject of the Membership Interest Purchase
Agreement and the Contribution Agreement.
"Membership Interest Purchase Agreement" shall mean the Membership
Interest Purchase Agreement, dated as of January 5, 2004, by and among
American Casino & Entertainment Properties LLC, a Delaware limited
liability company, Starfire Holding Corporation, a Delaware corporation,
and Carl C. Icahn, an individual.
"Contribution Agreement" shall mean the Contribution Agreement, dated as
of January 5, 2004, by and among American Real Estate Holdings Limited
Partnership, a Delaware limited partnership, American Entertainment
Properties, Corp., a Delaware corporation, American Casino & Entertainment
Properties LLC, a Delaware limited liability company, and Stratosphere
Corporation, a Delaware corporation.
II. FORMATION
2.1. Formation: The Member has formed the Company as a limited liability
company under the Delaware Act, upon the terms of and subject to the conditions
set forth in this Agreement, as amended from time to time, and further agrees
that the rights, duties and liabilities of the Member shall be set forth in the
Delaware Act, except as otherwise provided herein.
2.2. Name. The name of the Company is "American Casino & Entertainment
Properties LLC." All business and affairs of the Company shall be conducted
solely under such name and all assets of the Company shall be held solely by the
Company in such name.
2.3. Purposes. The Company was formed for the object and purpose of
acquiring, owning and operating the Gaming and Entertainment Properties and
engaging in any and all activities necessary, advisable, convenient or
incidental thereto, including the establishment, acquisition and operation of
other gaming and entertainment properties.
2.4. Term. The term of the Company commenced as of the date the
Certificate of Formation was filed with the Secretary of State of the State of
Delaware and shall thereafter exist in perpetuity, unless earlier dissolved in
accordance with the Delaware Act or this Agreement.
2.5. Amendments to the Certificate, Qualification in Other States. The
Member, or anyone designated by the Member is hereby authorized to execute any
amendments and/or restatements of the Certificate in accordance with the
Delaware Act and cause the same to be filed in the office of the Secretary of
State of the State of Delaware. The Member shall promptly execute and duly file
with the proper offices in each state in which the Company may conduct the
activities hereinafter authorized, one or more certificates as required by the
laws of each state in order that the Company may lawfully conduct the business,
purposes and activities herein authorized in each state and take any other
action or measures necessary in such state or states for the Company to conduct
such activities.
2.6. Principal Office. The principal office of the Company shall be at
2000 Las Vegas Boulevard South, Las Vegas, Nevada 89104 or at such other place
or places as may be designated by the Member.
2.7. Registered Agent and Office. The name and address of the registered
agent of the Company for service of process on the Company in the State of the
Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, City
of Wilmington, County of New Castle, Delaware 19808. The registered agent and
the registered office of the Company may be changed from time to time by the
Member.
III. CAPITAL CONTRIBUTIONS AND LIABILITY
3.1. Member Capital Contributions. The Member shall contribute $1.00 in
exchange for 100 membership interests in the Company at a price of $.01 per
membership interest. The Member shall not be required to make any additional
capital contributions to the Company.
3.2. Member's Liability. The liability of the Member, as such, shall be
limited to the amount of capital contributions that it has made. The provisions
of this Agreement are not intended to be for the benefit of any creditor or
other person to whom any debts, liabilities, or obligations are owed by (or who
otherwise has any claim against) the Company or the Member; and no such creditor
or other person shall obtain any benefit from such provisions or shall, by
reason of any such foregoing provision, make any claim in respect of any debt,
liability, or obligation against the company or the Member.
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IV. TITLE TO PROPERTY
4.1. Title to Property. Title to any property, real or personal or
tangible or intangible, owned by or leased to the Company shall be held in the
name of the Company, or in the name of any nominee the Member may in its
discretion designate.
V. MANAGEMENT OF COMPANY
5.1. Management. The business and affairs of the Company shall be
conducted and managed solely by the Member. The Member has delegated its
authority to manage the day-to-day business affairs of the Company to the
officers and key employees of the Company as provided in Section 5.2 hereof.
5.2. Officers.
(a) The officers of the Company shall be chosen by the Member. There
shall be a President and Chief Executive Officer, one or more Vice Presidents, a
Secretary and a Treasurer, and there may be one or more Assistant Secretaries,
and one or more Assistant Treasurers, as the may elect. Any number of offices
may be held by the same person. Each officer of the Company shall hold office
until his or her successor is chosen and qualified, or until his or her earlier
resignation or removal. Any officer may be removed at any time with or without
cause by the Member. The officers of the Company shall have the powers, duties
and responsibilities set forth below, and may have such other powers, duties and
responsibilities as may be set forth from time to time in one or more
resolutions of the Member:
(i) President and Chief Executive Officer. The President and
Chief Executive Officer (the "President") of the Company shall have all
the duties of governing the Company. He or she shall, subject to the
direction of the Member, have general charge and supervision of the
business of the Company and shall perform such other duties as are
incident to the office. Without limiting the generality of the foregoing,
the President may sign and execute in the name of the Company all
contracts, instruments, consents and other documents authorized by the
Member.
(ii) Vice Presidents. Any Vice President shall perform such
duties and possess such powers as the Member or the President may from
time to time prescribe. In the event of the absence, inability or refusal
to act of the President, the Vice President (or if there shall be more
than one, the Vice Presidents in the order determined by the Member) shall
perform the duties of the President and when so performing shall have all
the powers of and be subject to all the restrictions upon the President.
The Member may assign to any Vice President the title of Executive Vice
President, Senior Vice President, Assistant Vice President or any other
title selected by the Member. Without limiting the generality of the
foregoing, any Vice President may sign and execute in the name of the
Company all contracts, instruments, consents and other documents
authorized by the Member.
(iii) Chief Financial Officer and Treasurer. The Chief
Financial Officer and Treasurer (the "Treasurer") of the Company shall
take care and custody of the funds
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and securities of the Company; keep the books and accounts of the Company;
render statements of the condition of the financing of the Company; and in
general perform all the duties incident to the office of Treasurer, and
such other duties as from time to time may be assigned by the Member.
Unless such authority is limited by resolution of the Member, the
Treasurer shall have the authority to sign and execute in the name of the
Company all contracts, instruments, consents and other documents
authorized by the Member.
(iv) Secretary. The Secretary shall give notice of all
meetings of Members; keep true records of all actions taken and of all
other proceedings; attest to such records after every meeting by his or
her signature; and perform all duties incident to the office of Secretary,
and such other duties as from time to time may be assigned to him or her
by the Member.
The Member may also, by vote taken at a meeting or in a written consent in lieu
of a meeting, designate and authorize any other employee or agent of the Company
to sign and execute in the name of the Company any contracts, instruments,
consents or other documents authorized by the Member.
The initial officers of the Company shall be as follows:
Richard P. Brown President and Chie Executive Officer
Denise Barton Senior Vive President, Chief Financial
Officer, Treasurer and Secretary
The initial key employees of the Company shall be as follows:
Ronald Lurie General Manager - Arizona Charlie's Decatur
Bobby Ray Harris General Manager - Stratosphere Operations
Mark Majetich General Manager - Arizona Charlie's Boulder
(b) The Company shall indemnify the Member (and each of its
officers, directors, stockholders, employees and agents), each officer and any
other employee or agent designated pursuant to the last sentence of Section
5.2(e), whether or not then in office (and his or her executor, administrator,
and heirs), against all reasonable expenses actually and necessarily incurred,
including but not limited to judgments, costs, and counsel fees, in connection
with the defense of any civil, criminal, or administrative action, suit, or
proceeding to which it, he or she may have been or become a party because it, he
or she is or was a Member or an officer of the Company or designated to action
on behalf of the Company pursuant to Section 5.2(a). It, he or she shall have no
right to reimbursement, however, in relation to matters as to which it, he or
she is adjudicated to have engaged in willful misconduct, bad faith or gross
negligence. The right to indemnity for expenses shall also apply to expenses of
actions that are compromised or settled. The foregoing right of indemnification
shall be in addition to, and not exclusive of, all other rights to which the
Member, an officer or designated employee or agent may be entitled.
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(c) Every agreement, instrument, certificate or other document
executed by an officer or employee or agent designated pursuant to Section
5.2(a) of the Company on behalf of the Company shall be conclusive evidence in
favor of every person relying thereon or claiming thereunder that, at the time
of delivery thereof, (i) the Company was in existence, (ii) this Agreement had
not been terminated or canceled or amended in any manner so as to restrict such
authority, and (iii) the execution and delivery of such agreement, instrument,
certificate or other document were duly authorized under this Agreement. Any
person dealing with the Company may rely conclusively on the power and authority
of the officers of the Company as set forth in this Agreement or in any
designation made pursuant to Section 5.2(a). Any person dealing with the Company
may rely conclusively on a certificate signed by any officer of the Company as
to:
(i) who are the Members and officers of the Company;
(ii) the existence or nonexistence of any fact or facts which
constitute conditions precedent to acts by the Member or in any other
manner germane to the affairs of the Company;
(iii) who is authorized to execute and deliver any instrument
or document on behalf of the Company;
(iv) the authenticity of any copy of this Agreement and
amendments hereto; and/or
(v) any act or failure to act by the Company or as to any
other matter whatsoever involving the Company or its assets and
properties.
VI. PROFITS AND LOSSES AND DISTRIBUTIONS
6.1. Profits and Losses. All profits and losses of the Company shall
be allocated to the Member and all cash which the Member, in its sole and
absolute discretion, determines is available for distribution shall be
distributed to the Member.
VII. GOVERNING LAW.
7.1. Governing Law. This Agreement and the rights of the parties
hereto shall be interpreted in accordance with the laws of the State of Delaware
without giving effect to principles of conflict of laws.
VIII. MISCELLANEOUS.
8.1. Gaming Restrictions. The provisions of this Agreement are
subject to applicable gaming laws and regulations. No membership interest in the
Company may be issued or transferred, or person appointed or retained as a
manager or officer of the Company, except in compliance with all applicable
gaming laws and regulations. The Member shall not take any action, nor permit
any manager or officer of the Company to take any action, under this
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Agreement which would require the prior approval of or notice to any gaming
authorities without obtaining such approval or giving such notice.
8.2. Amendments. Any amendment or supplement to this Agreement or
the Certificate shall only be effective if in writing and signed by the Member.
8.3. Captions, Exhibits. Article, section and other titles or
captions contained in this Agreement are inserted only as a matter of
convenience and for reference, and shall not be construed in any way to define,
limit, extend or describe the scope of this Agreement or the intention of the
provisions thereof. All exhibits annexed hereto are herewith expressly made a
part of this Agreement, as fully as though completely set forth herein.
8.4. Severability. Any provision of this Agreement which is invalid,
illegal or unenforceable in any respect in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality, or
unenforceability without in any way affecting the validity, legality, or
enforceability of the remaining provisions hereof, and any such invalidity,
illegality or unenforceability in any jurisdiction shall not invalidate or in
any way affect the validity, legality, or enforceability of such provisions in
any other jurisdiction.
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IN WITNESS WHEREOF, the undersigned has executed Limited Liability
Company Agreement of AMERICAN CASINO & ENTERTAINMENT PROPERTIES LLC as of the
date and year first above written:
THE MEMBER:
AMERICAN ENTERTAINMENT
PROPERTIES CORP.
By: /s/ Richard P. Brown
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Name: Richard P. Brown
Title: President and Chief
Executive Officer
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