Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Registration Statement 181 972K
2: EX-1.1 Purchase Agreement 93 331K
3: EX-3.1 Certificate of Formation 1 22K
12: EX-3.10 Amended and Restated Operating Agreement 11 53K
13: EX-3.11 Articles of Organization 3 27K
14: EX-3.12 Certificate of Amendment of the Art. of Org. 2 25K
15: EX-3.13 Operating Agreement 14 59K
4: EX-3.2 Limited Liability Company Agreement 5 40K
5: EX-3.3 Certificate of Incorporation 2 25K
6: EX-3.4 By-Laws 15 81K
7: EX-3.5 Amended and Restated Articles of Organization 3 28K
8: EX-3.6 Operating Agreement 14 68K
9: EX-3.7 Certificate of Formation 3 27K
10: EX-3.8 Certificate of Amendment to Certif. of Formation 3 25K
11: EX-3.9 Certificate of Amendment to Certif. of Formation 4 27K
16: EX-4.1 Indenture 106 405K
25: EX-4.10 Deed of Trust 44 160K
26: EX-4.11 Intercreditor Agreement 15 75K
27: EX-4.12 Loan and Security Agreement 98 386K
28: EX-4.13 General Continuing Guaranty 11 57K
29: EX-4.14 Guarantor Security Agreement 17 76K
30: EX-4.15 First Preferred Vessel Mortgage 16 79K
31: EX-4.16 Deed of Trust 51 193K
32: EX-4.17 Deed of Trust 56 214K
33: EX-4.18 Deed of Trust 51 181K
34: EX-4.19 Stock Pledge Agreement 15 67K
17: EX-4.2 Registration Rights Agreement 37 126K
35: EX-4.20 Guarantor Trademark Security Agreement 12 54K
36: EX-4.21 Subordination of First Referred Vessel Mortgage 2 27K
37: EX-4.22 Subordination Agreement 7 38K
38: EX-4.23 Subordination Agreement 7 38K
39: EX-4.24 Subordination Agreement 8 38K
18: EX-4.3 Guarantee 2 25K
19: EX-4.4 Pledge and Security Agreement 48 186K
20: EX-4.5 Pledge Agreement 23 110K
21: EX-4.6 Trademark Security Agreement 4 31K
22: EX-4.7 First Preferred Vessel Mortgage 22 97K
23: EX-4.8 Deed of Trust 47 165K
24: EX-4.9 Deed of Trust 50 175K
40: EX-5.1 Opinion of Latham & Watkins 3 30K
41: EX-5.2 Opinion of Schreck Brignone Godfrey 2 27K
42: EX-5.3 Opinion of Watkins Ludlam Winter & Stennis, P.A. 3 30K
43: EX-5.4 Opinion of Robinson Waters & O'Dorisio 2 27K
44: EX-10.1 Employment Agreement 1 24K
58: EX-10.10 Lease Agreement 17 60K
59: EX-10.10.1 Amendment to Lease Agreement 7 39K
68: EX-10.10.10 Second Amendment to Masonic Ground Lease 7 38K
69: EX-10.10.11 Lease Agreement and Estoppel Certificate 17 65K
70: EX-10.10.12 Assignment of Ground Lease 10 45K
60: EX-10.10.2 Assignment 7 36K
61: EX-10.10.3 Supplemental Agreement 3 28K
62: EX-10.10.4 Assignment 7 36K
63: EX-10.10.5 Assignment 4 32K
64: EX-10.10.6 Articles of Amendment 11 47K
65: EX-10.10.7 Assignment 5 30K
66: EX-10.10.8 Amendment to Masonic Lodge Ground Lease 21 73K
67: EX-10.10.9 Lease Agreement 11 49K
71: EX-10.11 Lease 16 52K
72: EX-10.11.1 Amendments to Ham Ground Lease 23 77K
73: EX-10.11.2 Lease Agreement 6 39K
74: EX-10.11.3 Second Amendment to Ham Ground Lease 12 49K
75: EX-10.11.4 Assignment of Ground Lease 10 43K
76: EX-10.12 Agreement Regarding Ground Leases 8 36K
77: EX-10.13 Agreement Regarding Ground Leases 6 34K
45: EX-10.2 Employment Agreement 8 51K
46: EX-10.3 Amended and Restated Management Agreement 6 38K
47: EX-10.4 Expense Reimbursement Agreement 3 28K
48: EX-10.5 Member Agreement 7 42K
49: EX-10.6 Assignment of Membership 1 23K
50: EX-10.7 Contribution and Assignment Agreement 3 28K
51: EX-10.8 Lease Agreement 37 90K
52: EX-10.8.1 Assigment of Ground Lease 7 35K
53: EX-10.9 Lease Agreement 27 75K
54: EX-10.9.1 Amendment to Kramer Ground Lease 20 66K
55: EX-10.9.2 Lease Amendment 10 47K
56: EX-10.9.3 Second Amendment to the Kramer Ground Lease 6 37K
57: EX-10.9.4 Assignment of Ground Lease 11 43K
78: EX-12.1 Computation of Ratio of Earnings to Fixed Charges 1 22K
79: EX-21.1 List of Subsidiaries 1 21K
80: EX-23.5 Consent of Pricewaterhousecoopers LLP 1 22K
81: EX-23.6 Consent of Deloitte & Touche LLP 1 23K
82: EX-25.1 Statement of Eligibility 6 36K
83: EX-99.1 Form of Letter of Transmittal 11 76K
84: EX-99.2 Form of Notice of Guaranteed Delivery 5 37K
85: EX-99.3 Form of Letter to Dtc Participants 2 25K
86: EX-99.4 Form of Letter to Beneficial Owners 4 30K
87: EX-99.5 Guidelines for Cert. of Taxpayer Id Number 4± 32K
88: EX-99.6 Form of Exchange Agent Agreement 10 47K
EXHIBIT 10.11.2
XXXing Requested by and )
XXX Recorded Mail to: )
Public Employees' Retirement System )
of Nevada )
693 West Nye Lane )
Carson City, Nevada 89701 )
_______________________________________________________________________________
(Space above this line for Recorder's Use)
LEASE AMENDMENT, ESTOPPEL CERTIFICATE AND CONSENT TO ASSIGNMENT
(HAM LEASE)
TO: Public Employees' Retirement System of Nevada ("PERS"); Fremont and Third
Limited Partnership, a Nevada limited partnership ("Fremont"); Sundance
Hotel Group Limited Partnership, a Nevada limited partnership ("Sundance");
and Lincoln Management Company South, a Nevada corporation ("Lincoln"), as
general partner of Fremont and Sundance.
RE: Lease dated March 4, 1976, by and between M. B. Dalitz Revocable Trust, as
successor in interest to M. B. Dalitz, who, in turn, was successor in
interest to Nevada Building Company, as lessee (said M. B. Dalitz Revocable
Trust being hereinafter referred to as "Lessee"), and A. W. Ham, Jr., as
Trustee Under the Wills of A. W. Ham and Alta M. Ham, Deceased, as lessor
(hereinafter referred to as "Lessor"), for a term of sixty-two (62) years
and seven (7) months, which Lease (with an Addendum thereto dated as of the
date thereof), Lessee hereby represents to Lessor, was recorded on March
10, 1976, in Book 602 as Document No. 561142; said Lease having been
amended by that certain Amendment to Ham Ground Lease dated December 20,
1982, which Amendment, Lessee hereby represents to Lessor, was recorded on
January 5, 1983 in Book 1669 as Document No. 1628018, and that certain
Amendment to Lease dated December 30, 1982, which Amendment, Lessee hereby
represents to Lessor, was recorded on December 30, 1982 in Book 1667 as
Document No. 1626307, said Lease, as amended by said Amendments, being
hereinafter referred to as the "Lease"; said Lease covering the premises
located in Las Vegas, Clark County, Nevada more particularly described in
Exhibit A, attached hereto and incorporated herein by this reference (the
"Premises").
Gentlemen:
The undersigned certifies and represents unto PERS, Fremont, Sundance, and
Lincoln, in respect of the Lease, as follows:
(i) The undersigned is owner of record of the Premises, and certifies such
that he is duly authorized to execute and deliver this Lease Amendment,
Estoppel Certificate and Consent to Assignment.
(ii) The undersigned is the current Lessor under the Lease, and certifies
that he has not assigned or agreed to assign his interest as Lessor under the
Lease in whole or in part. The current address for notices, demands, and
communications to the Lessor under the Lease is as follows:
A.W. Ham, Jr., as Trustee
Under the Wills of A.W. Ham
and Alta M. Ham, Deceased
P.O. Box 790
Las Vegas, Nevada 89125
(iii) To the best knowledge of the undersigned, the M. B. Dalitz Revocable
Trust is the current Lessee under the Lease and is entitled to all rights and
benefits of the Lessee under the Lease.
(iv) The Leased Property is the Premises as set forth above.
(v) Attached hereto as Exhibit "B", and incorporated herein by this
reference, is a true, correct and complete copy of the Lease, as in affect as
of the date hereof; and the Lease constitutes the entire agreement between
Lessor and Lessee and has not been in any respect modified, altered or amended,
except as set forth above.
(vi) The Lease is in full force and effect, and, to the best of Lessor's
knowledge and belief, the Lessee is not in any respect in default under the
terms and provisions of the Lease (nor is Lessor aware of any fact or condition
which, with notice or the passage of time or both, will become such a default);
provided, however, that Lessor does not waive its right to assert a default
under the terms and provisions of the Lease for any default occurring after the
date hereof. In the event that, unbeknownst to Lessor, Lessee is in fact in
default under the Lease as of the date hereof, Lessor's remedies with respect
to any such existing default shall be limited to an action for damages and/or
specific performance against Lessee and/or Fremont, and Lessor shall not
terminate the Lease on account of any such existing default.
(vii) Lessee has accepted possession of the Premises and is paying rent on
a current basis.
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(viii) The term of the Lease commenced on June 1, 1976, XXX subject to the
terms and conditions of the Lease, will end on December 31, 2038.
(ix) The rent under the Lease is currently $14,927.84 XXX month, subject
from time to time to adjustment as provided in XXX Lease and as provided for
below. Such amount is to be paid to XXX party and at the place set forth in (ii)
above, subject to XXX of such party and place as provided in the Lease. Without
limitation of any other payment or other obligations of Lessee under the Lease,
Lessee also must pay all real property taxes assessed against the Premises.
(x) To the best of Lessor's knowledge and belief, Lessor has no present
set-offs, claims or defenses to the enforcement of the Lease and no present
reason, claim, or grounds to terminate the Lease or declare a default
thereunder. In the event that, unbeknownst to Lessor, Lessor in fact has a
present set-off, claim or defense to the enforcement of the Lease or a present
reason, claim, or ground to terminate the Lease or declare a default thereunder
as of the date hereof, Lessor's remedies with respect to the enforcement of any
same shall be limited to an action for damages and/or specific performance
against Lessee and/or Fremont, and Lessor shall not terminate the Lease on
account thereof.
(xi) The sum of $14,927.84, as and for rent, and the sum of $0, as and for
other charges, have been paid by Lessee in advance for the period from August 1,
1987 to August 31, 1987.
(xii) No portion of any security deposit has been applied to cure any
default under the Lease.
(xiii) To the best of Lessor's knowledge and belief, (a) there are no
uncured defaults by Lessee under the Lease, and (b) the insurance presently
maintained by the Lessee complies with all requirements of the Lease.
(xiv) Lessor hereby approves and consents to the assignment of Lessee's
interest in the Premises and Lessee's interest in the Lease by Lessee to
Fremont; provided, however, that such approval and consent shall not release any
obligation of Lessee or any other person or entity under the Lease, that,
notwithstanding such approval and consent, Lessee and any other persons and
entities liable under the Lease shall remain fully liable for the obligations of
the Lessee under the Lease during the remaining term of the Lease, and that
Fremont shall assume the obligations of the Lease as hereinafter provided for
from and after the effective date of Lessee's assignment to Fremont to and until
such time as Fremont shall properly assign (after obtaining any consent or
approval from Lessor that may then be required under the Lease) its interest in
the Premises and the Lease, at
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which time Fremont shall be released and discharged from any and all obligations
of the Lease that may thereafter accrue and any further obligation to Lessor
that may thereafter arise; and provided further that no such release and
discharge of Fremont from said Lease obligations and no such consent and
approval by Lessor to such an assignment by Fremont of its interest in the
Premises and the Lease shall release any obligation of Lessee under the Lease.
(xv) Lessor's consent to and approval of said assignment shall in no manner
be construed to constitute a subordination of or agreement to subordinate
Lessor's reversionary interest in the Premises or a waiver or modification of
any rights of Lessor under the Lease and, in particular, and without limitation
of the foregoing, shall not be deemed a waiver of (a) the provisions of the
Lease that generally prohibit assignments, subleases and other transfers of
interests under the Lease or of the applicability of said provisions to any
other or future transaction, or (b) the provisions of the hereinabove-mentioned
Amendment to Ham Ground Lease that provide, inter alia, for PERS to maintain at
all times a $1,000,000.00 cash fund as security for the performance of Lessee's
obligations under the Kramer, Ham and Masons Ground Leases (as defined in said
Amendment to Ham Ground Lease), it being expressly understood and agreed that
said $1,000,000.00 cash fund shall remain in existence, in accordance with the
requirements of said Amendment to Ham Ground Lease, at all times during the
remaining term of the Lease.
(xvi) Lessor has been advised that Lessee intends to sell and assign
Lessee's right, title and interest in and to, among other things, that complex
commonly known as the Sundance Hotel and Casino, Las Vegas, Nevada (the
"Sundance Property") (including, without limitation, all of Lessee's right,
title and interest in the leasehold estate in the Premises pursuant to the
Lease, except that Lessee shall continue to remain liable to Lessor under the
Lease) to Fremont pursuant to a certain Purchase Agreement (hereinafter, "the
Purchase Agreement") a copy of which Purchase Agreement, as amended, has been
furnished to Lessor, and Lessor has been further advised that PERS and Fremont
have required the delivery of this Lease Amendment, Estoppel Certificate and
Consent to Assignment by the Lessor in connection with such acquisition.
However, it is understood and agreed that, notwithstanding anything to the
contrary in Section 3 of the Purchase Agreement, as amended, or otherwise,
Lessor's execution of this Lease Amendment, Estoppel Certificate and Consent to
Assignment shall not constitute an agreement on the part of Lessor to consent to
any further amendment to or assignment, sublease or other transfer of the Lease,
any refinancing of any indebtedness relating to the Premises or any other
transaction other than Lessee's assignment of the Lease to Fremont as
contemplated herein and the amendment to the Lease hereunder to increase the
basic monthly rental under the lease, as provided for below, and Lessee,
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Fremont and all other signatories hereto and persons and entities mentioned
herein, by signing or accepting the benefits of this document, acknowledge and
agree that Lessor is undertaking no obligation to agree to any such thing.
(xvii) So long as the same may be lawful, Lessor approves of the
nature and the use, as a hotel and gambling casino with related restaurant and
bar facilities, of all improvements placed on the Premises and related
property, including the contiguous nature of the Sundance Hotel and Casino and
the parking structure, and the Pioneer Citizen's Bank of Nevada building, and
their use in conjunction with adjacent properties.
In consideration for Lessor's consenting hereunder to the assignment
of Lessee's interest in the Premises and the Lease to Fremont, it is agreed by
Lessor, Lessee and Fremont that, effective on the date as of which said
assignment becomes effective:
(a) The basic monthly rental under the Lease shall be increased from
$14,927.84 to $15,301.04, subject to further increase or decrease as and when
provided for in paragraph 1 of the Addendum dated March 4, 1976 (hereinafter
referred to as "the Addendum") that constitutes part of the Lease;
(b) For purposes of applying, from and after the date as of which
said assignment becomes effective, the provisions of paragraph 1 of the
Addendum (pertaining to cost-of-living increases in the basic monthly rental
under the lease), the base rental for the period commencing June 1, 1979 that
is referred to in the Addendum shall be deemed to be $7,687.50 per month (but
the base Consumer Price Index of 166.3 referenced in the Addendum shall not be
adjusted or otherwise affected by reason thereof); and
(c) For purposes of applying, from and after the date as of which
said assignment becomes effective, the provisions of paragraph 1 of the
Addendum pertaining to the minimum basic monthly rental under the Lease, the
minimum base rent under the Lease shall be deemed to be $7,687.50 per month.
In the event that Lessee's assignment to Fremont shall become effective on
other than the first day of a calendar month, then the increase in the basic
monthly rental provided for in subparagraph (a) of this paragraph shall be
prorated for that month based on the number of days in that month occurring on
or after the date on which such assignment becomes effective. Except as amended
by this paragraph, the Lease shall remain in full force and effect in
accordance with its terms.
As required by Sections 3 and 12 of the Purchase Agreement by and
between Fremont as "Buyer" and Lessee as "Seller"
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for the purchase and sale of the Sundance Property, the increase in the basic
monthly rental under the Lease from $14,927.84 to $15,301.04, or $373.20, and
any increase or decrease allocable to the amount of said increase in the basic
monthly rental as and when provided for in paragraph 1 of the Addendum, shall be
off-set monthly by Fremont against monthly rent due and payable to Lessee
pursuant to Section 12.02.5 of the Purchase Agreement and the Parking Lot Lease,
which off-set shall be provided for by Amendment to Section 12.02.5 of the
Purchase Agreement and by the terms of the Parking Lot Lease for corresponding
reductions of the monthly rental payment by Fremont as "Buyer" to Lessee as
"Seller" pursuant to the Parking Lot Lease. The provisions of the preceding
sentence are matters between Lessee and Fremont that shall be of no concern to
Lessor and shall not affect either Lessee's or Fremont's liability (as elsewhere
provided for herein) for the payment of the full rental that may be payable from
time to time under the Lease, as amended hereby.
Lessor makes the above statements for the benefit and protection of
Fremont, Sundance and Lincoln, knowing that they will rely on the same in
acquiring the right, title, and interest of Lessee in and to the leasehold
estate upon the Premises pursuant to the Lease and that PERS will rely on the
same in approving Fremont's acquisition of the Sundance Property under the
Purchase Agreement subject to certain indebtedness to PERS on the Premises.
However, this Lease Amendment, Estoppel Certificate and Consent to Assignment
shall be effective upon, and only upon, the delivery to Lessor of an original
or counterparts hereof duly executed by all persons and entities whose
signatures are provided for below. This document may be executed in one or more
counterparts, each of which shall be deemed an original hereof, and all of
which together shall constitute one and the same document.
DATED as of September 23, 1987.
LESSOR:
/s/ A.W. Ham, Jr., as Trustee
------------------------------------
A.W. Ham, Jr., as Trustee
Under the Wills of A.W. Ham
and Alta M. Ham, Deceased
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