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 10.11.1
AMENDMENT TO HAM GROUND LEASE
A. W. HAM, JR., Trustee under the Wills of A. W. HAM and ALTA M. HAM,
deceased, and M. B. Dalitz, as Lessee (as assignee of the lease) and A. W. HAM,
JR., Trustee under the Wills of A. W. HAM and ALTA M. HAM, Deceased, as ground
Lessor, are parties to a written lease agreement dated March 4, 1976, a copy of
which with amendments and assignments is attached hereto as Exhibit "1" and
incorporated herein by reference. M. B. DALITZ has subleased the property
described in the lease agreement by a written sublease dated April 5, 1979,
amended September 24, 1980, to SUNDANCE HOTEL AND CASINO, INC., a Nevada
corporation (SUNDANCE). SUNDANCE subleased the Premises by a Sublease Agreement
dated October 1, 1981 to SUNDANCE ASSOCIATES, a Nevada limited partnership
("ASSOCIATES"). M. B. Dalitz has assigned his interest in said Ham Ground Lease
to the M. B. DALITZ REVOCABLE TRUST ("TRUST"). The TRUST is sometimes
hereinafter referred to as "the Lessee."
Other portions of the land under the SUNDANCE HOTEL AND CASINO building
have been leased and assigned to TRUST as lessee and ultimately to ASSOCIATES
as sublessee through two other ground leases (and subsequent assignments), one
by ground lessor JULIE LaMOYNE NOLEN, DAVID KRAMER, BETTY BENNETT and RICHARD
JAMES TINKLER ("Kramer Ground Lease"), and the other by ground lessor LAS VEGAS
LODGE NO. 32, FREE AND ACCEPTED MASONS ("Masons Ground Lease"). The ground
lessors under the Kramer Ground Lease, the Ham Ground Lease and the Masons
Ground Lease are hereinafter referred to collectively as "the Ground Lessors."
The Public Employees Retirement System of Nevada ("PERS") is extending
permanent financing with a loan in the sum of $29,050,000.00 to M. B. DALITZ
and the M. B. DALITZ REVOCABLE TRUST for the SUNDANCE HOTEL AND CASINO project
which is built
partially on the premises, which loan is secured by a Deed of Trust and
Assignment of Rents ("PERS Deed of Trust") on the Premises and other property
and by other loan documentation. In consideration for PERS making the loan to
enable the permanent financing of the SUNDANCE HOTEL AND CASINO project
("Sundance Loan") and other valuable consideration, the parties hereto agree
that the Ham Ground Lease is hereby amended as follows:
1. Notices of Default: FIRST INTERSTATE BANK, Trust Department, 300 East
Carson Street, Las Vegas, Nevada, 89101, and PERS shall be given a written
notice of any claimed default under the Ham Ground Lease by any party claiming
the default. PERS shall have the right, but not the duty or obligation, to cure
any default under the Ham Ground Lease, as provided in paragraph 4 below. The
right to cure shall include the right to enter the Premises if necessary to
effect a cure.
(a) Under the Sundance Loan documents, PERS shall require its borrower
to deposit the full amount of all rent payments required under the Ham
Ground Lease with FIRST INTERSTATE BANK of Nevada at least fifteen (15)
days before each such payment is due, and FIRST INTERSTATE BANK of Nevada
shall at all times be under instructions to honor any request from Lessor
for payment under the Ham Ground Lease immediately upon receipt thereof.
Lessor, Lessee and PERS will execute the necessary escrow instructions to
FIRST INTERSTATE BANK to implement the purposes of this paragraph and this
Amendment as they relate to duties of the FIRST INTERSTATE BANK. Said
escrow instructions will provide, without limitation, that FIRST INTERSTATE
BANK shall, on each date upon which rent payments are required to be
deposited with FIRST INTERSTATE BANK under this
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designee, FIRST INTERSTATE BANK of Nevada, pursuant to paragraph 1 hereof
in which to effect such cure in accordance herewith and with the terms of
the Ham Ground Lease, including but not limited to the payment of any
interest or other charges imposed by reason of such default. In the event
PERS fails to effect such cure within said ten (10) business days, Lessor
may exercise any and all remedies available to it under the terms of the
Ham Ground Lease or this Amendment, including, without limitation,
termination of the Ham Ground Lease, provided, however, that the Ham Ground
Lease shall not be terminated until 5 business days after receipt of a
notice mailed to PERS and to PERS' designee FIRST INTERSTATE BANK stating
that the default has not been cured and that in five (5) days after receipt
of this notice the Ham Ground Lease is terminated unless the default is
cured as noticed. A cure made after the ten (10) business days' notice has
expired will be effective to cure the default so long as it has been made
or tendered prior to the expiration of the final five (5) day notice of
termination. No cure made or effected pursuant to this subparagraph (a)
shall be deemed completed unless and until PERS shall have reimbursed
Lessor in full for any and all damages, costs and expenses incurred by
Lessor as a proximate result of such default.
(b) In the event of a default under the Ham Ground Lease by the
Lessee thereunder, which default cannot be fully cured by the payment of
money as provided in subparagraph (a) above, Lessor shall not terminate the
Ham Ground Lease by reason of such default without first
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subparagraph, send to each Ground Lessor a written notice stating whether
and to what extent such payments have in fact been deposited on such date.
Lessee will pay FIRST INTERSTATE BANK for any services required by this
Amendment or any escrow or collection account established as a result of
this Amendment.
2. Amendments: The Ham Ground Lease shall not be amended or modified
except by written agreement signed by all parties to the Ham Ground Lease, with
the prior written approval of PERS, which approval will not be unreasonably
withheld so song as PERS's security for the Sundance Loan is not impaired or
destroyed.
3. PERS Lien-Greater Estate: The lien of the PERS Deed of Trust and
security agreement securing the payment of the Sundance Loan and encumbering the
leasehold estates of the M. B. DALITZ REVOCABLE TRUST, M. B. DALITZ, SUNDANCE,
and ASSOCIATES, will automatically attach and encumber any greater estate that
the M. B. DALITZ REVOCABLE TRUST, M.B. DALITZ, SUNDANCE, or ASSOCIATES, or their
successors or assigns may obtain in the Premises in the future.
4. Default:
(a) In the event of a default under the Ham Ground Lease by the
Lessee thereunder, which default can be fully cured by the payment of
money, including but not limited to the payment of rent, insurance
premiums, taxes, or any other monetary obligations of Lessee under the Ham
Ground Lease, whether to the Lessor or to some other person or entity,
Lessor shall not terminate the Ham Ground Lease by reason of such default
without first affording PERS the opportunity to cure such default. PERS
shall have ten (10) business days after receipt of a notice of such default
mailed to PERS and to PERS's
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affording PERS the opportunity to cure such default. PERS shall have thirty
(30) days after receipt of a notice of such default mailed to PERS pursuant to
paragraph 1 hereof in which to effect such cure if such default can be cured
within said thirty (30) days, or if such default cannot be fully cured within
thirty (30) days, PERS shall have a reasonable time within which to cure such
default (taking into account the effect of any applicable bankruptcy statutes
or proceedings or other operation of law); provided, however, PERS must
commence the curing thereof within said thirty-day period and must thereafter
diligently pursue such cure to completion. In the event PERS is unable to
effect such a cure without first obtaining possession of the Premises, Lessor
shall not terminate the Ham Ground Lease by reason of such default, provided
that immediately after receipt of Lessor's notice of default under paragraph 1
hereof PERS exercises the right to proceed as quickly as allowed by law
(including the effect of any applicable bankruptcy statutes or proceedings or
other operation of law) to foreclose its lien or enforce its rights under the
PERS Deed of Trust, Sundance Loan commitment, and other Sundance Loan documents
and cures such default within thirty (30) days (as set forth above in this
subparagraph (b)) after completion of the foreclosure proceedings, and provided
further that after obtaining possession of the Premises PERS keeps and performs
all of the terms, covenants and conditions of the Ham Ground Lease, including
the payment of rent under the Ham Ground Lease, including the payment of rent
under the Ham Ground Lease, as provided in paragraph 5 below. In the event
PERS fails to effect
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such cure within the times and under the conditions specified in this
subparagraph (b), Lessor may exercise any and all remedies available to it
under the terms of the Ham Ground Lease or this Amendment, including,
without limitation, termination of the Ham Ground Lease, provided,
however, that the Ham Ground Lease shall not be terminated until five (5)
business days after receipt of a notice of default mailed to PERS and to
PERS' designee FIRST INTERSTATE BANK stating that the default has not been
cured and that in five (5) days after receipt of this notice the Ham
Ground Lease is terminated unless the default is cured as noticed. A cure
made or tendered prior to the expiration of the final five (5) day notice
of termination will be effective to cure the default. No cure made or
effected pursuant to this subparagraph (b) shall be deemed completed
unless and until PERS shall have reimbursed Lessor in full for any and all
damages, costs and expenses incurred by Lessor as a proximate result of
such default.
(c) The provisions of this Amendment regarding notices of default
and the time for curing defaults under the Ham Ground Lease shall
supersede any provisions in the Ham Ground Lease regarding notices of
default and the time for curing defaults.
5. PERS Foreclosure, Lease Assumption: PERS agrees that in the event that
it acquires the Ham leasehold estate by foreclosure or transfer in lieu of
foreclosure, or by assignment of the Ham Ground Lease, it shall thereby assume
the Ham Ground Lease and be bound by all of the terms and provisions thereof
and perform all of the covenants to be performed by Lessee
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thereunder, all as though it were the originally named Lessee thereunder;
provided, however, that the assignment provisions of paragraph 1. of the Ham
Ground Lease shall be superseded by the provisions of paragraph 6 below.
6. Assignment of Lease, $1 Million Dollar Trust Fund: From and after the
closing of the Sundance Loan transaction and prior to a foreclosure or transfer
to PERS in lieu of foreclosure under the PERS Deed of Trust, neither the Ham
Ground Lease nor any part thereof or interest therein or thereunder (including,
without limitation, any security interest or sublease interest) shall be
assignable or otherwise transferrable by the Lessee or any sublessee, either
voluntarily or by operation of law; provided that (1) the Ham Ground Lease
shall be assignable to PERS in accordance with the assignment of lease and
assignment of rents contained in the PERS Deed of Trust and to PERS, or any
third party in connection with any foreclosure or transfer to PERS in lieu of
foreclosure under the PERS Deed of Trust, (2) following any such foreclosure or
transfer in lieu of foreclosure, the Ham Ground Lease shall be freely
assignable; and (3) that following the death of H. B. DALITZ, the Lessee may
assign the Ham Ground Lease to a third party with the approval of the Lessor,
which approval will not be unreasonably withheld, subject to any assignment
restrictions contained in the PERS Deed of Trust. In consideration for the
Lessor's agreement to the foregoing, it is agreed that the fund established by
this paragraph shall be preserved at all times during the term of the Ham
Ground Lease and transferred upon assignment as provided herein.
(a) At the time of the funding of the permanent Sundance Loan by PERS, a
One Million Dollar ($1,000,000.00) cash fund (the "fund") shall be transferred
to PERS by the Lessee and shall be held by
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PERS and used to cure any defaults under the Kramer, Ham or Mason Ground Leases
to pay claims of any of the Ground Lessors under the Kramer, Ham, or Masons
Ground Leases against the Lessee or any sublessee and to take such other action
as appears necessary or advisable to cure any defaults under the Kramer, Ham or
Masons Ground Leases and keep the PERS Deed of Trust from being affected by a
threatened termination of any or all of said Ground Leases and keep all of said
Ground Leases in good standing. The fund shall be held in trust by PERS for
the benefit of the Ground Lessors under the purposes stated herein, and said
trust shall be irrevocable.
(b) PERS will invest the cash trust funds as directed by the Lessee,
provided however that the investment is in PERS' sole discretion sufficiently
liquid and negotiable to enable PERS to perform the requirements of the trust
and to obtain the cash from the fund as necessary to satisfy the conditions of
this Amendment. PERS will not be responsible or liable in any way for a loss of
return on the investment or a loss of the principal invested whether the
investment is reasonable or not, the responsibility and risk for which shall be
solely with the Lessee. All income derived from the investment of the trust
funds will be paid to Lessee. All losses to principal suffered as a result of
the investment will be immediately reimbursed by the Lessee, SUNDANCE and/or
ASSOCIATES as required by subparagraph (e) of this paragraph to maintain at all
times a trust principal having a market value of at least $1 Million.
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(c) In the event PERS no longer is the secured lender on the Sundance
Hotel and Casino property, then PERS will appoint the FIRST INTERSTATE BANK as
the Trustee of said trust on the same terms and conditions herein stated, and
transfer the funds then held in trust to the FIRST INTERSTATE BANK.
(d) In the event that PERS makes a payment from the fund, or in the event
the principal has been reduced or depleted because of the investment of the
funds, it shall give notice to SUNDANCE, ASSOCIATES, the Ground Lessors and
Lessee of such payment and the amount, payees and purpose for the claim paid,
or loss of investment. In the event that PERS shall fail to give such notice,
then such notice may be given by any of the Ground Lessors. Within ten (10)
days of receipt of said notice, the fund shall be replenished by the Lessee,
SUNDANCE and/or ASSOCIATES (jointly and severally) in the amount paid out or
investment lost, so that the fund will at all times have a market value of at
least $1 Million. Failure to replenish the fund within said time period shall
constitute a default under the PERS Deed of Trust. Notwithstanding the
foregoing, however, failure to replenish the fund as aforesaid shall not
constitute a default under the Ham Ground Lease unless and until the Sundance
Loan is completely repaid in accordance with its terms (i.e., shall not
constitute a default which PERS is required to cure under paragraph 4 hereof);
provided that, in the event of such failure to replenish, (1) PERS must
commence and diligently prosecute foreclosure proceedings under the PERS Deed
of Trust, and (2) Lessee, SUNDANCE, ASSOCIATES and any
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guarantor of the obligations of Lessee under the Ham Ground Lease shall be
personally and jointly and severally responsible and liable to Lessor to
effect such replenishment, and their liability in this regard shall be
specifically enforceable.
(e) PERS shall give all parties an annual report of the $1 million
trust fund activities, transactions and value written sixty (60) days
after each anniversary date of the establishment of the fund.
(f) In the event PERS forecloses its Deed of Trust and thereafter
assumes the Ham Ground Lease, PERS will be relieved of any and all
liabilities under the Ham Ground Lease when it assigns the Ham Ground Lease
(subject to PERS' obligation to transfer the fund to FIRST INTERSTATE BANK
under subparagraph (c), above), and the new assignee shall be solely
responsible for each and every obligation under the Ham Ground Lease.
In the event that, following the death of M. B. Dalitz, the Lessee shall seek to
assign the Ham Ground Lease to a third party pursuant to clause (3) of the
proviso to the first sentence of this paragraph 6, and, pursuant to said
clause, the Lessor shall refuse to approve such assignment, then the Lessor's
determination to withhold such approval shall be conclusively deemed to have
been reasonable unless, within fifteen (15) days after notice from the Lessor
of the Lessor's determination, the Lessee shall elect to have the matter
submitted for determination by arbitration in accordance with the commercial
rules then obtaining of the American Arbitration Association, which such
submission to arbitration shall be the sole remedy of the Lessee for any such
withholding of approval by the Lessor. In the event of any such submission to
arbitration, the sole issue for arbitration
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shall be the determination as to whether the withholding of approval by the
Lessor shall have been reasonable or unreasonable, and in the event that a
determination shall be made that the withholding of approval by the Lessor was
unreasonable, then the decision shall annul such withholding of approval, such
annulment being the sole remedy of the Lessee, it being the intention of the
parties hereto (as to which they are conclusively bound) that in no event shall
any such withholding of approval by the Lessor, or any decision in arbitration
with respect thereto (1) impose any financial liability upon or result in any
damages being recoverable from the Lessor and/or (2) create any right cognizable
or remedy enforceable against the Lessor in law or equity, or under any special
statutory proceeding, or at all (except by arbitration as aforesaid). The
expenses of any such arbitration (including, without limitation, the reasonable
attorney's fees and expenses of the parties thereto) shall be paid by the
Lessee.
7. No Merger of Interests: There will be no merger of the leasehold and
fee estates if any party acquires both interests, unless PERS consents in
writing to a merger.
8. Casualty Insurance:
(a) At all times from the date of closing of the Sundance Loan
transaction until the termination of the last to expire of the Kramer, Ham and
Masons Ground Leases, whether or not the Sundance Loan has theretofore been
repaid, casualty insurance on the improvements located upon the Premises and on
any improvements located upon any other real property comprising a part of the
hotel, casino, garage, restaurant or other operations of which the improvements
located upon the Premises comprise a part (all of said improvements, whether or
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not located on the Premises, being hereinafter collectively referred to as "the
Hotel") shall be carried by Lessee, SUNDANCE, ASSOCIATES and their respective
successors and assigns on the terms set forth in the PERS Deed of Trust, as set
forth in the copy thereof which is attached hereto as Exhibit "2" and
incorporated herein by reference. All proceeds of such casualty insurance shall
be made payable jointly to the ground Lessors, M. B. DALITZ, Lessee, SUNDANCE,
ASSOCIATES, PERS and their respective successors and assigns. Current
certificates evidencing such insurance, and copies of the insurance policies,
in form and substance acceptable to the Ground Lessors shall be furnished by
Lessee to the Ground Lessors at all times during the terms of the Kramer, Ham
and Masons Ground Leases.
(b) In the event of a partial or total damage to or destruction of the
Hotel, any one of PERS, M. B. DALITZ, Lessee or any ground Lessor or any of
their respective successors or assigns may elect to require the complete
restoration thereof. In the event of such election, any casualty insurance
proceeds which are payable in connection with the damage or destruction shall be
applied to such restoration, and, in the absence or insufficiency of any such
insurance proceeds, M. B. DALITZ, Lessee, SUNDANCE and ASSOCIATES shall be
jointly and severally liable and responsible for contributing the necessary
funds. Prior to the complete repayment of the PERS Deed of Trust, PERS or its
successor or assign shall control the disbursement of all moneys required to be
applied to any such restoration, in
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accordance with the terms and conditions of the PERS Deed of Trust.
After the complete repayment of the PERS Deed of Trust, such moneys
shall be controlled jointly by the Ground Lessors, M. B. DALITZ,
Lessee, SUNDANCE, ASSOCIATES and their respective successors and
assigns. In the event no election to restore is made by any party
under this subparagraph, or in the event that available casualty
insurance proceeds exceed the amount necessary to effect a complete
restoration of the damage or destruction, then any casualty insurance
proceeds not needed for such restoration in accordance with the terms
hereof shall be allocated to PERS to completely satisfy the Sundance
Loan as specified in the PERS Deed of Trust, and then to compensate
the Ground Lessors fully as their interests may appear, and then the
balance to M. B. DALITZ, Lessee, SUNDANCE and ASSOCIATES as their
respective interests may appear.
(c) None of the provisions of the two preceding subparagraphs shall
affect in any manner the provisions of the first sentence of Paragraph XI
of the Ham Ground Lease, and there shall be no reduction, abatement,
adjustment or interruption of rent or any other required payments under the
Ham Ground Lease by reason of or in connection with any damage or
destruction, or any restoration or rebuilding in connection therewith.
9. Liability Insurance: Lessee shall provide at its sole cost and expense
comprehensive General Liability and Broad Form Comprehensive Liability Insurance
coverage in limits of $5 Million aggregate, and Automobile Liability in limits
of $1 Million each occurrence and $1 Million
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aggregate with endorsements to fully protect all of the Ground Lessors. The
insurance shall be re-examined by the parties from time to time but no less
often than every three (3) years from the date of this Amendment for the
purpose of determining that the limits of insurance and the coverage is
adequate and customary for the structures and risks involved in the operation
of the Hotel and to adjust the policies if necessary. Current certificates
evidencing such insurance, and copies of the insurance policies, in form and
substance acceptable to the Ground Lessors shall be furnished by Lessee to the
Ground Lessors at all times during the terms of the Kramer, Ham and Masons
Ground Leases.
10. Notices: Any notice to be given under this Amendment or any payment to
be made to Lessor shall be addressed to the party and sent by certified or
registered mail addressed to:
PERS:
Public Employees Retirement System
of Nevada
693 West Nye Lane
Carson City, Nevada 89701
DALITZ -- Lessee:
M. B. Dalitz or the M. B. Dalitz
Revocable Trust
3111 South Maryland Parkway
Las Vegas, Nevada 89109
SUNDANCE:
Sundance Hotel and Casino, Inc.
301 East Fremont Street
Las Vegas, Nevada 89101
ASSOCIATES:
Sundance Associates
301 East Fremont Street
Las Vegas, Nevada 89101
LESSOR:
A. W. Ham, Jr., Trustee under the Wills
of A. W. Ham and Alta M. Ham, Deceased
801 South Rancho, Suite B-3
Las Vegas, Nevada 89106
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FIRST INTERSTATE BANK:
First Interstate Bank
Trust Department
300 East Carson Avenue
Las Vegas, Nevada 89101
11. Attorney's Fees and Costs: In the event any party to this
Amendment institutes legal proceedings to determine or to enforce its legal
rights arising hereunder, or in connection herewith, the prevailing party shall
be entitled to such reasonable attorney's fees and costs as it may incur in
connection therewith.
12. Lessee Defined: All references to "Lessee" herein shall be deemed
to include any and all assignees or sublessees of the Lessee under the Lease.
13. Limit of Amendment: This Amendment shall become effective upon the
closing of the Sundance Loan transaction. To the extent of any conflict or
inconsistency between the terms of this Amendment and the terms of the Ham
Ground Lease, the terms of this Amendment shall prevail and take precedence.
Subject to the preceding sentence, however, all terms and conditions of the Ham
Ground Lease are hereby ratified and affirmed and shall remain in full force
and effect.
Dated this 20th day of December, 1982.
M.B. DALITZ REVOCABLE TRUST
By: /s/ M.B. Dalitz, Trustee
--------------------------------
M.B. Dalitz, Trustee
/s/ M.B. Dalitz
------------------------------------
M.B. DALITZ
SUNDANCE HOTEL AND CASINO,
INC., a Nevada corporation
By: /s/ Allan D. Sachs
--------------------------------
Allan D. Sachs, President
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SUNDANCE ASSOCIATES, a Nevada
limited partnership
By: /s/ Allan D. Sachs
-------------------------------
Allan D. Sachs
General Partner
By: /s/ Herbert L. Tobman
-------------------------------
Herbert L. Tobman
General Partner
By: /s/ Jay E. Hechtman by
Herbert L. Tobman
Attorney-in-fact
-------------------------------
Jay E. Hechtman
General Partner
By: SUNDANCE HOTEL AND
CASINO, INC., General
Partner
By: /s/ Allan D. Sachs
---------------------------
Allan D. Sachs
President
ATTEST:
By: /s/ Herbert L. Tobman
-------------------------------
Secretary
A.W. HAM, JR., Trustee under
the Wills of A.W. HAM and
ALTA M. HAM, Deceased
By: /s/ A.W. Ham, Jr. Trustee
--------------------------------
A.W. Ham Jr.
PUBLIC EMPLOYEES RETIREMENT
SYSTEM OF NEVADA
By: /s/ Wilbur K. Keating
--------------------------------
Wilbur K. Keating
Executive Officer
-16-
STATE OF NEVADA )
: ss.
COUNTY OF CLARK )
On December 20, 1982, personally appeared before me, a Notary Public, M.B.
Dalitz, individually and M.B. Dalitz, Trustee of the M.B. Dalitz Revocable
Trust dated October 8, 1980, as amended December 20, 1982, who acknowledged
that he executed the above instrument.
[NOTARY SEAL] /s/ Irene S. Albrecht
------------------------------------
Notary Public
STATE OF NEVADA )
: ss.
COUNTY OF CLARK )
On December 20, 1982, personally appeared before me, a Notary Public,
Allan D. Sachs, known to me to be the President of Sundance Hotel and Casino,
Inc., who acknowledged that he executed the above instrument.
[NOTARY SEAL] /s/ Irene S. Albrecht
------------------------------------
Notary Public
STATE OF NEVADA )
: ss.
COUNTY OF CLARK )
On December 20, 1982, personally appeared before me, a Notary Public,
Allan D. Sachs, Herbert L. Tobman, and Herbert L. Tobman, attorney in fact for
Jay E. Hechtman, known to me to be the general partners of Sundance Associates,
who acknowledged that they executed the above instrument.
[NOTARY SEAL] /s/ Irene S. Albrecht
------------------------------------
Notary Public
STATE OF NEVADA )
: ss.
COUNTY OF CLARK )
On December 20, 1982, personally appeared before me, a Notary Public,
Allan D. Sachs, known to me to be the President of Sundance Hotel and Casino,
Inc., a General Partner of Sundance Associates, who acknowledged that he
executed the
-17-
above instrument.
[NOTARY SEAL] /s/ Irene S. Albrecht
------------------------------------
Notary Public
STATE OF NEVADA )
: ss.
COUNTY OF CLARK )
On December 20, 1982, personally appeared before me, a Notary Public, A.W.
Ham, Jr., Trustee under the Wills of A.W. Ham and Alta H. Ham, Deceased, who
acknowledged that he executed the above instrument.
[NOTARY SEAL] /s/ Irene S. Albrecht
------------------------------------
Notary Public
STATE OF NEVADA )
: ss.
COUNTY OF CLARK )
On January 4, 1982, personally appeared before me, a Notary Public, Wilbur
K. Keating, known to me to an Executive Officer of Public Employees Retirement
System of Nevada who acknowledged that he executed the above instrument.
[NOTARY SEAL] /s/ Irene S. Albrecht
------------------------------------
Notary Public
RETURN TO:
LAWYERS TITLE OF LAS VEGAS, INC.
-18-
EXHIBIT "1"
A Lease by and between A. W. HAM, JR., Trustee under the Wills of A. W. HAM and
ALTA M. HAM, deceased, as Lessor, and NEVADA BUILDING COMPANY, a partnership
comprised of FREDRIC N. RICHMAN and ALLAN D. SACHS, under the terms, conditions
and covenants therein provided, recorded March 10, 1976 as Document No. 561142
in Book 602 of Official Records, Clark County, Nevada.
By Assignment of Lease recorded April 18, 1979 as Document No. 1000777 in Book
1041 of Official Records; re-recorded April 26, 1979 as Document No. 1004573 in
Book 1045 of Official Records, Clark County, Nevada, the Lessee's interest in
the above described Lease was assigned to M. B. DALITZ.
By Assignment of Leases recorded September 12, 1980 as Document No. 1239412 in
Book 1280 of Official Records, the Lessee's interest in the above described
Lease was assigned to MOE B. DALITZ, Trustee under "THE M. B. DALITZ REVOCABLE
TRUST" dated January 25, 1980.
AFFECTING THE FOLLOWING DESCRIBED PROPERTY:
Lots Five (5) and Six (6) in Block Thirty (30) of CLARK'S LAS VEGAS TOWNSITE, as
shown by map thereof on file in Book 1 of Plats; page 37, in the Office of the
County Recorder of Clark County, Nevada.
TOGETHER WITH that certain alley vacated by the City of Las Vegas, recorded
April 9, 1979 as Document No. 995695 in Book 1036 of Official Records, Clark
County, Nevada, as follows:
That portion of that certain Northwest-Southwest alley in Block Thirty (30) of
CLARK'S LAS VEGAS TOWNSITE, as shown by map thereof on file in Book 1 of Plats,
page 37, in the Office of the County Recorder of Clark County, Nevada, described
as follows:
COMMENCING at the Southwesterly corner of Lot One (1) in Block Thirty (30) in
said CLARK'S LAS VEGAS TOWNSITE;
THENCE Southeasterly along the Southerly line of Lots One (1) through Four (4)
of said Block Thirty (30) a distance of 100 feet to the TRUE POINT OF BEGINNING;
THENCE containing along the Southerly line of Lots Five (5) and Six (6) a
distance of 40 feet to a point;
THENCE Southwesterly and parallel to the East line of said Lot Six (6) in Block
Thirty (30) a distance of 10 feet to a point;
THENCE Northwesterly and parallel to the Southerly line of Lots Five (5) and Six
(6) a distance of 40 feet to a point;
THENCE North and parallel to the Northwesterly line of Lot Five (5) a distance
of 10 feet to the TRUE POINT OF BEGINNING.
AMENDMENT TO LEASE
THIS AMENDMENT TO LEASE, entered into this 30th day of December, 1982, by
and between A. W. HAM, JR., Trustee under the Wills of A. W. HAM and ALTA N.
HAM, deceased, hereinafter referred to as "Lessor" and M. B. DALITZ, an
unmarried man, and M. B. DALITZ, Trustee of the M. B. DALITZ REVOCABLE TRUST
dated October 8, 1980, as amended December 20, 1982.
W I T N E S S E T H :
WHEREAS, Nevada Building Company, a Partnership comprised of Fredric N.
Richman, and Allan D. Sachs is the Lessee under the terms of that certain Lease
Agreement by and between A. W. Ham, Jr., Trustee under the Wills of A. W. Ham
and Alta N. Ham, deceased, dated the 4th day of March, 1976, under the terms of
which the Lessor has leased unto the Lessee the real property situated in the
City of Las Vegas, Clark County, Nevada described as follows:
Lots Five (5) and Six (6) of Block Thirty (30), Clark's Las Vegas
Townsite.
WHEREAS, Nevada Building Company, a Partnership comprised of Fredric N.
Richman and Allan D. Sachs did assign to M. B. Dalitz, an unmarried man, all the
right, title and interest of Nevada Building Company, a Partnership, in and to
that certain Lease dated the 4th day of March, 1976, as hereinabove described by
document recorded March 10, 1976, as Document Number 561142 in Book 602 of
Official Records, Clark County, Nevada.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties agree as follows:
1. The Demised Premises as set forth on Page 1 of the Lease Agreement
dated the 4th day of March, 1976, by and between A. W. Ham, Jr., Trustee under
the Wills of A. W. Ham and Alta M. Ham, deceased as Lessor and Nevada Building
Company, a Partnership
comprised of Fredric N. Richman and Allan D. Sachs, as Lessee is hereby amended
to include the following described property as part of the Demised Premises:
That portion of that certain Northwest-Southwest alley in Block Thirty
(30) of CLARK'S LAS VEGAS TOWNSITE, as shown by map thereof on file in
Book 1 of Plats, page 37, in the Office of the County Recorder of Clark
County, Nevada, described as follows:
COMMENCING at the Southwesterly corner of Lot One (1) in Block Thirty
(30) in said CLARK'S LAS VEGAS TOWNSITE, thence Southeasterly along the
Southerly line of Lots One (1) thru Four (4) of said Block Thirty (30) a
distance of 100 feet to the TRUE POINT OF BEGINNING; thence continuing
along the Southerly line of Lots Five (5) and Six (6) a distance of 40
feet to a point; thence Southwesterly and parallel to the East line of
said Lot Six (6) in Block thirty (30) a distance of 10 feet to a point;
thence Northwesterly and parallel to the Southerly line of Lots Five (5)
and Six (6) a distance of 50 feet to a point; thence North and parallel
to the Northwesterly line of Lot Five (5) a distance of 10 feet to the
TRUE POINT OF BEGINNING.
The above described property is a portion of an alleyway that has been
vacated by the City of Las Vegas through the efforts of and at the expense of
M. B. Dalitz, Assignee/Lessee and Assignee/Lessee hereby agrees to indemnify and
hold harmless Lessor from any expense, cost or liability that otherwise may
devolve upon Lessor as a result of the vacation of the portion of the alleyway
described above.
2. The above described property shall be included in as part of the
Demised Premises for the term as set forth in the original Lease thereto and
shall be and become subject to all of the terms and conditions of said Lease.
3. It is understood and agreed by and between the parties hereto that the
terms and conditions of this Agreement as well as the original Lease Agreement,
shall extend to and be binding upon successors and assigns of Lessor and also
upon the heirs, executors, successors and assigns of Assignee/Lessee.
4. The parties hereto agree that the instant Amendment to
-2-
Lease may at the option of either party, be duly recorded in the Recorder's
Office of Clark County, Nevada.
IN WITNESS WHEREOF, Lessor acting by and through its duly authorized
Trustee and Assignee/Lessee have executed this Agreement in duplicate, each
copy of which is deemed to be and is an original.
LESSOR:
A. W. HAM, JR., Trustee Under
the Wills of A. W. HAM and
ALTA M. HAM, Deceased.
/s/ A. W. Ham, Jr., Trustee
------------------------------------------
Trustee
ASSIGNEE/LESSEE
/S/ M. B. Dalitz
------------------------------------------
M. B. DALITZ
M. B. DALITZ, TRUSTEE OF THE
M. B. DALITZ REVOCABLE TRUST
DATED OCTOBER 6, 1980, AS
AMENDED DECEMBER 20, 1982.
By: /s/ M. B. Dalitz, Trustee
---------------------------------------
M. B. DALITZ, Trustee
STATE OF NEVADA )
) ss.
COUNTY OF CLARK )
On this 30th day of December, 1982, personally appeared before me, a
Notary Public in and for said County and State, A. W. HAM, JR., Trustee Under
the Wills of A. W. Ham and Alta M. Ham, Deceased, known to me to be the person
described in and who executed the foregoing instrument who acknowledged to me
that he executed the same freely and voluntarily and for the uses and purposes
therein mentioned.
/s/ Irene S. Albrecht
----------------------------------
Notary Public
[CLARK COUNTY
SEAL]
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STATE OF NEVADA )
) ss.
COUNTY OF CLARK )
On this 30th day of December, 1982, personally appeared before me, a
Notary Public in and for said County and State, M. B. DALITZ, an unmarried man,
and M. B. DALITZ, Trustee of the M. B. Dalitz Revocable Trust dated October 6,
1980, as amended December 20, 1982, known to me to be the person described in
and who executed the foregoing instrument who acknowledged to me that he
executed the same freely and voluntarily and for the uses and purposes therein
mentioned.
/s/ Irene S. Albrecht
-----------------------------------
Notary Public
[CLARK COUNTY
SEAL]
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Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘S-4’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
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| Filed on: | | 1/29/02 | | | | | | | None on these Dates |
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