FIRST AMENDMENT TO AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF AMERICAN CASINO & ENTERTAINMENT PROPERTIES LLC
FIRST
AMENDMENT TO
AMENDED
AND RESTATED
OF
AMERICAN
CASINO & ENTERTAINMENT PROPERTIES LLC
This First Amendment to the Amended and
Restated Limited Liability Company Agreement of American Casino &
Entertainment Properties LLC (this “Amendment”) is
entered into and effective on the date last set forth below, by and among
W2007/ACEP Managers Voteco, LLC, a Delaware limited liability company (“Voteco”), and
W2007/ACEP Holdings, LLC, a Delaware limited liability company (“Holdings”). Capitalized
terms used and not otherwise defined herein have the meanings set forth on in
the Company Agreement (as defined below).
WITNESSETH:
WHEREAS, Voteco and Holdings are
parties to that certain Amended and Restated Limited Liability Company Agreement
of American Casino & Entertainment Properties LLC, dated as of February 20,
2008 (the “Company
Agreement”), which is the current operating agreement for American Casino
& Entertainment Properties LLC, a Delaware limited liability company (the
“Company”);
and
WHEREAS, The Members desire to further
amend the Company Agreement as hereinafter set forth, which amendment shall be
effective upon execution.
NOW, THEREFORE, in consideration of the
covenants, conditions and agreements contained herein, the Members hereby
determine and agree as follows:
Section
1. Amendments.
(a) Article II of the
Company Agreement is hereby amended by inserting the following definition
therein in alphabetical order:
“‘Goldman
Board Member’ means any Board Member that is also an employee, officer or
managing director of Xxxxxxx, Sachs & Co.”
(b) The
last sentence of Section 6.1(d) is hereby deleted in its entirety and replaced
with the following:
“Wherever
approval by the Board is required by this Agreement, such approval shall, except
as otherwise set forth herein, consist of the affirmative vote of a majority of
a quorum of the Board Members, which shall include the affirmative vote of at
least one Goldman Board Member.”
Section
2. Miscellaneous.
(a) Governing Law;
Severability. THIS AMENDMENT IS GOVERNED BY AND SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE, EXCLUDING ANY
CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE
CONSTRUCTION OF THIS AMENDMENT TO THE LAW OF ANOTHER JURISDICTION. If
any provision of this Amendment or its application to any Person or circumstance
is held invalid or unenforceable to any extent, the remainder of this Amendment
and the application of such provision to other Persons or circumstances is not
affected and such provision shall be enforced to the greatest extent permitted
by law.
(b) Terms of Company Agreement
Ratified and Confirmed. Except as expressly modified, amended
or supplemented by this Amendment, all terms, covenants and conditions of the
Company Agreement remain unchanged and in full force and effect. The
parties hereto hereby acknowledge that all of the terms, covenants and
conditions of the Company Agreement, as hereby modified, amended or supplemented
by this Amendment, are hereby ratified and confirmed and shall continue to be
and remain in full force and effect throughout the remainder of the term of the
Company Agreement, and that the Company Agreement and this Amendment shall be
read and interpreted as if it was one agreement.
(c) Conflict. In
the event of a conflict between the terms and conditions of this Amendment and
the terms and conditions of the Company Agreement, such conflict shall be
resolved in favor of the terms and conditions of this Amendment and the Company
Agreement shall be construed accordingly.
(d) Binding Effect and
Counterparts. It is understood and agreed that this Amendment
shall be binding upon all of the parties hereto once all of the Members shall
have executed and delivered the same. This Amendment may be executed
by facsimile or by original signature in any number of counterparts, each of
which, when executed and delivered, will be deemed an original and all of which
taken together, will be deemed one and the same agreement.
[REMAINDER
OF PAGE INTENTIONALLY BLANK]
2
EXECUTED
by the undersigned as of this 11th day of June, 2010, to be effective upon
execution.
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W2007/ACEP
MANAGERS VOTECO, LLC,
a
Delaware limited liability company
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By:
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/s/ Xxxxx
Xxxxxxx
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Name:
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Xxxxx
Xxxxxxx
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Title:
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Manager
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W2007/ACEP
HOLDINGS, LLC, a Delaware
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limited
liability company
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By:
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W2007
Finance Sub, LLC, a Delaware
limited
liability company, its managing
member
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By:
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Whitehall
Street Global Real Estate Limited
Partnership
2007, a Delaware limited
liability
company, its managing member
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By:
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WH
Advisors, L.L.C. 2007, a Delaware
limited
liability company, its general partner
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By:
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/s/ Xxxxx
Xxxxxxx
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Name:
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Xxxxx
Xxxxxxx
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Title:
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Manager
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