WIMAR OPCO, LLC LIMITED LIABILITY COMPANY OPERATING AGREEMENT
EXHIBIT
3.2
WIMAR OPCO, LLC
THIS LIMITED LIABILITY COMPANY OPERATING AGREEMENT is made and entered into as of June 8, 2006
by and between WIMAR OPCO, LLC, a Delaware limited liability company (the “Company”) and WIMAR OPCO
INTERMEDIATE HOLDINGS, LLC (the “Member”) and WIMAR TAHOE CORPORATION (the “Manager”). The parties
hereto, intending to be legally bound, agree as follows:
1. Formation of Limited Liability Company. On June 8, 2006, the Company was
organized as a limited liability company pursuant to the Delaware Limited Liability Company Act (6
Del. C. §18-101 et seq.) (the “Act”) by the filing of Certificate of Formation of the
Company (the “Certificate”) with the Secretary of State of Delaware as required by the Act. Xxxxxx
X. Xxxxxx, is hereby designated as an “authorized person” within the meaning of the Act, and has
executed, delivered and filed the Certificate with the Secretary of State of the State of Delaware.
Upon the filing of the Certificate with the Secretary of State of the State of Delaware, his
powers as an “authorized person” ceased, and the Manager thereupon became the designated
“authorized person” and shall continue as the designated “authorized person” within the meaning of
the Act. The Manager shall execute, deliver and file any other certificates (and any amendments
and/or restatements thereof). The Manager hereby adopts and ratifies the Certificate, a copy of
which is attached as Exhibit A hereto. In the event of a conflict between the terms of
this Operating Agreement and the terms of the Certificate, the terms of the Certificate shall
prevail.
2. Name. The name of the Company shall be Wimar OpCo, LLC.
3. Statutory Agent. The Company’s initial statutory agent shall be The Corporation
Trust Company, c/o Corporation Trust Center, 0000 Xxxxxx Xxxxxx, xx xxx Xxxx xx Xxxxxxxxxx, Xxxxxx
of Xxx Xxxxxx, Xxxxxxxx 00000. The Manager may, at any time and from time to time, change the
statutory agent of the Company.
4. Purpose. The purpose for which the Company is organized is to transact any and all
lawful business incident thereto for which a Limited Liability Company may be organized under the
Act. The Company shall have all the powers necessary, incidental or convenient to effect any
purpose for which it is formed, including all powers granted by the Act.
5. Fiscal Year. The fiscal year of the Company shall be the calendar year or such
other fiscal year as the Manager shall determine pursuant to the provisions of Code Section
706(b).
6. Term. The Company was formed on the date of filing of the Certificate of Formation
and its period of existence shall be perpetual, until cancellation of the Certificate as provided
for in the Act.
7. Initial Capital Contribution. Upon execution of this Agreement, the Member shall
contribute to the Company cash, property, services rendered, promissory notes or any other binding
obligation to contribute cash or property or to perform
services of the type and in the amount set forth opposite the Member’s name on Schedule
1 attached hereto. In exchange for such capital contribution, the Member shall receive the
number of units of limited liability company interest in the Company (“Units”) set forth opposite
the Member’s name on Schedule 1. The Member hereby acknowledges and agrees that the Units
are being purchased for the Member’s own account and for investment purposes only and not for
resale in connection with the distribution or public offering of the Units within the meaning of
the Securities Act of 1933, the Delaware Securities Act, or any other applicable securities laws
and rules.
8. Limited Liability. Except as otherwise expressly provided by the Act, the debts,
obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall
be the debts, obligations and liabilities solely of the Company, and neither the Member nor the
Manager shall be obligated personally for any such debt, obligation or liability of the Company
solely by reason of being a Member or Manager of the Company.
9. Management and Control in General. The initial number of managers of the Company
shall be one (1) and such Manager designated by Member shall be Wimar Tahoe Corporation, or any
successor by merger. The Manager shall have full and exclusive power to manage and control the
business and affairs of the Company. The Manager is the agent of the Company for the purpose of its
business. Any act of the Manager in apparently carrying on in the usual way the business of the
Company shall bind the Company. The Manager is hereby designated as a “manager” of the Company
within the meaning of Section 18-101(10) of the Act.
10. Officers. The Manager may elect a president, one or more vice presidents,
treasurer, secretary and such other officer or officers as it may deem necessary. Unless the
Manager decides otherwise, if the title is one commonly used for officers of a business corporation
formed under the Delaware General Corporation Law, the assignment of such title shall constitute
the delegation to such person of the authorities and duties that are normally associated with that
office. Any two or more of such offices may be held by the same person. The officers of the
Company (if any) shall hold office until their successors are elected and qualified, or for such
order period as the Manager may provide, but any officer may be removed at any time, with or
without cause, by the Manager without prejudice to the contract rights, if any, of the officers who
were removed. The Manager may fill any vacancy in the office at any time. All of the officers of
the Company shall at all times be and remain subject to the direction or control of the Manager.
The initial officers of the company will be Xxxxxxx X. Xxxx, President, Secretary and Treasurer.
11. Transfer of Units. No transfer of Units shall be made unless in compliance
with such restrictions of transfer as set forth on the Certificate, or any amendment thereto.
12. Unit Journal. The Manager shall maintain a journal of ownership of all of the
outstanding Units containing the name and address of each Member, the number of Units held and
whether such Unit holder is a Member (the “Journal”). The Unit Journal shall be conclusive evidence
of the ownership of the Units and status as a Member absent manifest error.
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13. Dissolution of the Company. The Company shall be dissolved, and its affairs shall
be wound up upon the first to occur of the following: (a) the action of the members holding a
majority of the Units held by all the members, (b) at any time there are no members of the Company
unless the Company is continued in accordance with the Act, or (c) the entry of a decree of
judicial dissolution under Section 18-802 of the Act.
14. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware (without regard to conflict of law principles), all rights
and remedies being governed by said laws.
15. Entire
Agreement; Amendment of Agreement. This Agreement constitutes
the entire understanding of the parties hereto with respect to the subject matter hereof and
supersedes any and all prior negotiations, understandings and agreements in regard hereto. This
Agreement may be amended only by a written amendment signed by the Member.
16. No Third Party Rights. This Agreement and the covenants and agreements
contained herein are solely for the benefit of the parties hereto. No other person shall be
entitled to enforce or make any claims, or have any right pursuant to the provisions of this
Agreement.
17. Severability of Provisions. Each provision of this Agreement shall be
considered severable and if for any reason any provision or provisions herein are determined to be
invalid, unenforceable or illegal under any existing or future law, such invalidity,
unenforceability or illegality shall not impair the operation of or affect those portions of this
Agreement which are valid, enforceable and legal.
18. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original of this Agreement and all of which together shall
constitute one and the same instrument.
REMAINDER OF PAGE LEFT BLANK.
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The undersigned have signed this Agreement as of the date set forth above.
| WIMAR OPCO, LLC | MEMBER: | |||||||
| WIMAR TAHOE CORPORATION, Its Manager |
WIMAR OPCO INTERMEDIATE HOLDINGS, LLC |
|||||||
| By: | Wimar Tahoe Corporation | |||||||
| Its: | Manager | |||||||
By:
|
/s/ Xxxxxxx X. Xxxx | By: | /s/ Xxxxxxx X. Xxxx | |||||
Name:
|
Xxxxxxx X. Xxxx | Name: | Xxxxxxx X. Xxxx | |||||
Title:
|
President | Title: | President | |||||
