Exhibit 3.2
COLONY RESORTS LVH ACQUISITIONS, LLC
LIMITED LIABILITY COMPANY AGREEMENT
This Limited Liability Company Agreement (this "Agreement") is enacted
as of December 22, 2003 between Colony Resorts LVH Holdings, LLC, a Delaware
limited liability company (the "Sole Member") and Colony Resorts LVH
Acquisitions, LLC, a Nevada limited liability company (the "Company"). The Sole
Member and any other Members admitted from time to time in accordance with the
terms hereof are individually referred to herein as a "Member" and collectively
referred to herein as the "Members".
WITNESSETH:
WHEREAS, the Sole Member has decided to form a limited liability
company under Title 7, Chapter 86 (Limited Liability Companies) of the Nevada
Revised Statutes (the "Act");
WHEREAS, the Sole Member wishes to set forth, among other things, how
the business and affairs of the Company shall be managed.
NOW, THEREFORE, the undersigned hereby agree as follows:
1. Formation and Name.
The undersigned do hereby form a limited liability company under the
Act. The name of the limited liability company is Colony Resorts LVH
Acquisitions, LLC. The business of the Company may be conducted under any other
name deemed necessary or desirable by the Members in order to comply with local
law.
The undersigned resolve to form and continue the Company as a limited
liability company pursuant to the provisions of the Act and of this Agreement
and resolve that its rights and liabilities shall be as provided in the Act for
members except as provided herein.
2. Business.
The Company is formed for the object and purpose of, and the Company's
business is, to engage in any and all lawful acts and activities for which
limited liability companies may be organized under the Act and to engage in any
and all activities necessary or incidental to the foregoing.
3. Principal Place of Business.
The principal office of the Company shall be located at 0000 Xxxxxx xx xxx
Xxxxx, Xxxxx 0000, Xxx Xxxxxxx, XX 00000 or such other place as the Sole Member
may designate from time to time.
4. Duration.
The Company shall continue in existence perpetually unless the Company
is dissolved and its affairs wound up in accordance with the Act or this
Agreement. The Members may terminate this Agreement and dissolve the Company at
any time.
5. Fiscal Year.
The fiscal year of the Company shall begin on January 1 of each year
and end on December 31 of that year.
6. Members.
Unless other Members are admitted pursuant to the terms hereof, the
Sole Member shall be the sole member of the Company. The Members hereby resolve
to operate the Company in accordance with the terms of this Agreement.
The Sole Member shall have the power to do any and all acts necessary
or convenient to or for the furtherance of the purposes described herein,
including, without limitation, all powers, statutory or otherwise, possessed by
members of limited liability companies under the laws of the State of Nevada.
7. Management.
(a) Managers.
(i) Election of the Managers. The Managers shall be elected by the
Sole Member of the Company. As of the date hereof and subject to the terms set
forth herein, Xxxxxxxx X. Xxxxx and Xxxxxx X. Xxxxxxx, Xx. shall be the Managers
of the Company.
(ii) Duration of Office. Each of the Managers shall, except as
hereinafter provided, hold office until a successor is elected and qualify by
the Sole Member.
(iii) Removal and Resignation of Sole Manager. Each of the Managers
may be removed, with or without cause, by the written consent of the Sole Member
and the office of the removed Manager shall forthwith become vacant. Each of the
Managers may resign at any time. Such resignation shall take effect at the time
specified therein, or if no time be specified, at the time of its receipt by the
Company.
(iv) Decision of the Managers. All decisions or actions of each of
the Managers relating to the business and affairs of the Company are subject to
approval by the Sole Member of the Company including, without limitation, (A)
decisions or actions requiring the unanimous approval of the Members as provided
by non-waivable provisions of the Act or applicable law, (B) exercising control
over the powers of the Company (C) all decisions and actions for the Company
that are necessary or appropriate to carry out the purposes for which the
Company is being formed under this Agreement and to further the interests of the
Members.
(b) Delegation of Authority and Duties.
-2-
(i) Subject to approval by the Sole Member of the Company as
required by Section 7(a)(iv) hereto, each of the Managers shall have the
authority and duties in the management of the Company as are normally associated
with the chief executive officer of an entity and shall have the power to act,
in the name and on behalf of the Company, to do all things reasonably necessary
for the performance of the Company's day-to-day operations.
(ii) Subject to approval by the Sole Member of the Company as
required by Section 7(a)(iv) hereto, each of the Managers may appoint and elect
(as well as remove or replace with or without cause), as he deems necessary,
Managing Directors, Vice Presidents, a Treasurer or Chief Financial Officer and
a Secretary of the Company (collectively, but excluding the Chief Executive
Officer and the President, the "Officers"). The compensation, if any, of the
Officers shall be determined by the Sole Member. The Officers shall perform such
duties and may exercise such powers as may be assigned to them by the Managers.
(iii) Subject to approval by the Sole Member of the Company as
required by Section 7(a)(iv) hereto, if the title of any person authorized to
act on behalf of the Company under this Section 7(b) is one commonly used for
officers of a business corporation formed under the Nevada Revised Statutes, the
assignment of such title shall constitute the delegation to such person of the
authority and duties that are normally associated with that office, subject to
any specific delegation of, or restriction on, authority and duties made
pursuant to this Section 7(b). Any number of titles may be held by the same
person. Any delegation pursuant to this Section 7(b) may be revoked at any time
by the Sole Member.
(iv) Unless authorized to do so by the Sole Member, no Officer shall
have any power or authority to bind the Company in any way, to pledge its
credit, or to render it liable pecuniarily for any purpose.
8. Capital Contributions.
Capital contributions shall be made in cash or in other assets as may
be agreed by the Sole Member.
9. Allocations of Profits and Losses/Distributions.
All profits and losses of the Company shall be allocated to the Sole
Member. All distributions by the Company shall be allocated in the same
proportion as profits and losses.
10. Tax Status.
It is intended that the Company shall be treated as a partnership for
federal, state, and local income tax purposes, and the Members shall take all
action necessary to qualify for and receive such tax treatment.
11. New Members/Transfers.
New members of the Company may be admitted only with the consent of
the Sole Member. In the event of such admission, this Agreement shall be amended
and/or restated, as
-3-
determined by the Sole Member. No Member may sell, assign, pledge, hypothecate
or otherwise transfer his or her interest in the Company without the consent of
the Sole Member.
12. Withdrawals.
Subject to the requirements of applicable law, the Members may
withdraw all or a portion of their capital from the Company at any time.
Withdrawals may be in cash or in securities or other instruments held by the
Company.
13. Limited Liability of Members.
The Members in their capacity as a Member shall not be liable for any
debts, obligations or liabilities of the Company.
14. Liquidation and Dissolution.
Except as otherwise provided in this Section 14, the Company shall
continue in perpetuity. The Company shall be dissolved and its affairs wound up
upon the first to occur of the following:
(i) The sale, transfer or other disposition of all or substantially
all the assets of the Company;
(ii) The written consent of the Sole Member to dissolve the Company;
or
(iii) The entry of a decree of judicial dissolution under the Act.
15. Winding up Affairs and Distribution of Assets.
(a) Upon a winding up of the Company, the Sole Member shall be the
liquidating Member (the "Liquidating Member") and shall proceed to wind up the
affairs of the Company, liquidate the remaining property and assets of the
Company and wind-up and terminate the business of the Company. The Liquidating
Member shall cause a full accounting of the assets and liabilities of the
Company to be taken and shall cause the assets to be liquidated and the business
to be wound up as promptly as possible by either or both of the following
methods: (1) selling the Company assets and distributing the net proceeds
therefrom (after the payment of Company liabilities) to each Member in
accordance with Section 9 hereof; or (2) distributing the Company assets to the
Members in kind in accordance with Section 9 hereof (after adequate provision
for all liabilities and expenses shall have been made).
(b) If the Company shall employ method (1) as set forth in Section
15(a) in whole or part as a means of liquidation, then the proceeds of such
liquidation shall be applied in the following order of priority: (i) first, to
the expenses of such liquidation; (ii) second, to the debts and liabilities of
the Company to third parties, if any, in the order of priority provided by law;
(iii) third, a reasonable reserve shall be set up to provide for any contingent
or unforeseen liabilities or obligations of the Company to third parties (to be
held and disbursed, at the discretion of the Liquidating Member, by an escrow
agent selected by the Liquidating Member) and at the expiration of such period
as the Liquidating Member may deem advisable, the balance
-4-
remaining in such reserve shall be distributed as provided herein; (iv) fourth,
to debts of the Company to the Members; and (v) fifth, to the Members in
accordance with Section 9.
(c) In connection with the liquidation of the Company, the Members
severally, jointly, or in any combination upon which they may agree, shall have
the first opportunity to make bids or tenders for all or any portion of the
assets of the Company, and such assets shall not be sold to an outsider except
only for a price higher than the highest and best bid of a single Member, the
Members jointly, or a combination of Members. Any bid made by a Member or
Members for all or any portion of the assets shall be made, if at all, within
thirty (30) days after the Liquidating Member or any other Member shall have
requested such bids. A copy of each bid shall be delivered by the Liquidating
Member to each Member. Unless otherwise agreed by all Members, no Member shall
be entitled to raise its bid after submission thereof, whether in response to a
bid received by the Company from any other Member or third party, or otherwise.
16. Amendments.
The Members may amend this Agreement at any time by written instrument
signed by the Members and filed with the books and records of the Company.
Pending any replacement or amendment of this Agreement, it is intended that the
provisions of the Act be controlling as to any matters not set forth in this
Agreement.
17. Miscellaneous.
(a) Severability. If any provision of this Agreement is held to be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
(b) Captions. All captions used in this Agreement are for
convenience only and shall not affect the meaning or construction of any
provision hereof.
(c) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Nevada.
(d) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Members and their respective successors and assigns.
-5-
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
Colony Resorts LVH Holdings, LLC
By: /s/ Xxxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Vice President
Colony Resorts LVH Acquisitions, LLC
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Manager
-6-
