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
EX-10.10.11 — Lease Agreement and Estoppel Certificate
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EXHIBIT 10.10.11
LEASE AMENDMENT AND ESTOPPEL CERTIFICATE
This LEASE AMENDMENT AND ESTOPPEL CERTIFICATE ("Amendment") is entered
into on the 6th day of December, 2001, by and among LAS VEGAS LODGE NO. 32,
FREE AND ACCEPTED MASONS, of Las Vegas, Clark County, Nevada ("Lessor"),
FITZGERALDS LAS VEGAS, INC., a Nevada corporation ("Lessee"), and BARDEN NEVADA
GAMING, LLC, a Nevada limited liability company ("Successor Lessee").
WHEREAS, Lessor and Lessee (as assignee) are parties to that certain Lease
Agreement, dated July 21, 1954, by and between Lessor and H. John Gluskin (the
Lease Agreement, together with all amendments, assignments and other
modifications thereto, collectively, the "Lease");
WHEREAS, Lessor and Lessee's predecessor in interest under the Lease
entered into that certain Amendment to Masonic Lodge Ground Lease, dated
December 20, 1982 (the "PERS Amendment") in connection with a loan made by The
Public Employees Retirement System of Nevada to M.B. Dalitz and the M.B. Dalitz
Revocable Trust (the "Sundance Loan"), which loan was secured by a Deed of Trust
and Assignment of Rents, dated as of December 20, 1983, as recorded in Clark
County, Nevada on January 5, 1983, in Book 1669 as Instrument 1628020 (the "PERS
Deed of Trust"), and which Sundance Loan has been paid in full and which PERS
Deed of Trust has been fully reconveyed and released of record;
WHEREAS, the PERS Amendment contains (i) a requirement for the maintenance
of a $1,000,000 trust fund (the "Fund") for the benefit of Lessor and certain
other ground lessors, and (ii) a restriction on the assignment or transfer of
Lessee's rights under the Lease or the grant of a security interest therein
which was to remain operative until a foreclosure or transfer in lieu of
foreclosure under the PERS Deed of Trust (the "Assignment Restriction");
WHEREAS, Lessee has transferred its interest under the Lease to Successor
Lessee;
WHEREAS, pursuant to that certain Loan and Security Agreement dated on or
about the date hereof (as supplemented and otherwise amended from time to time,
the "Loan Agreement"), by and among Successor Tenant, Barden Colorado Gaming,
LLC, a Colorado limited liability company ("BCG"), Barden Mississippi Gaming,
LLC, a Mississippi limited liability company ("BMG"), Majestic Investor
Holdings, LLC, a Delaware limited liability company ("Majestic") and Foothill
Capital Corporation, a California corporation ("Lender"), Lender will provide to
Successor Tenant, BCG and BMG a $15,000,000 revolving line of credit (the
"Loan");
WHEREAS, pursuant to the Loan Agreement, the Loan is secured by, among
other things, a Deed of Trust, Security Agreement and Fixture Filing with
Assignment of Rents ("Deed of Trust") dated on or about the date hereof,
executed by Successor Tenant, as Trustor, for the benefit of Lender, as
Beneficiary, encumbering the leasehold interest of Successor Tenant created by
the Lease, and the buildings and improvements now or hereafter located thereon
(collectively, the "Property"); and
WHEREAS, Lender would not enter into or consummate the transactions
contemplated by the Loan Agreement in the absence of this Amendment and,
therefore, will be relying on this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. No Assignment Restriction. Lessor hereby agrees that as of the date hereof
the Assignment Restriction is void and of no force or effect.
2. Fund. Lessor hereby agrees that Lessee may substitute the Fund with a letter
of credit in the face amount of $1,000,000 from a creditworthy financial
institution and otherwise reasonably acceptable to Lessor, or with another form
of security reasonably acceptable to Lessor, as security for the performance of
Lessee's and Successor Lessee's obligations under the Lease.
3. Lessor Consent. Lessor acknowledges that Lessee has transferred its interest
under the Lease to Successor Lessee. Lessor consents to the Deed of Trust and to
the encumbrance of Successor Lessee's leasehold interest in the Property
pursuant to the Deed of Trust and the other collateral described in the Deed of
Trust by Successor Lessee pursuant to the execution, delivery and recordation
(in the Official County Records of Clark County, Nevada) of the Deed of Trust
and the other Security Documents.
4. Mortgagee Protection. Lessor agrees that so long as the Deed of Trust
remains unsatisfied of record or until written notice of satisfaction is given
by Lender to Lessor, the following provisions shall apply:
(a) Notice to Lender. Lender shall be given a written notice of any
claimed default under the Lease by any party claiming the default. Lender shall
have the right, but not the duty or obligation, to cure any default under the
Lease, as provided in Section 4(c) below. The right to cure shall include the
right to enter the leased premises demised under the Lease (the "Premises") if
necessary to effect a cure. Lender's address for notification is as follows:
Foothill Capital Corporation
One Boston Place, 18th floor
Boston, MA 02108
(b) Amendments. The Lease shall not be amended or modified without the
prior written approval of Lender, which approval will not be unreasonably
withheld so long as Lender's security for the Loan. Notwithstanding anything
contained in this Amendment, Lender shall not be bound by any agreement
amending, modifying or terminating the Lease made without Lender's prior written
approval.
(c) Default.
(i) In the event of a default under the Lease by Successor 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 Successor
Lessee under the Lease, whether to Lessor or to some other person or entity,
Lessor shall not terminate the Lease by reason of such default without first
affording Lender the opportunity to cure such default. Lender shall have ten
(10) business days after receipt of written notice of such default mailed to
Lender pursuant to Section 4(a) hereof in which to effect such cure in
accordance herewith and with the terms of the Lease. In the event that Lender
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 Lease or
this Amendment, including, without limitation, termination of the Lease;
provided, however, that the Lease shall not be terminated until five (5)
business days after Lender's receipt of written notice mailed to Lender in
accordance with Section 4(a) hereof stating that the default has not been cured
and that in five (5) business days after receipt of this notice the 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) business day notice of termination. No cure made or effected pursuant to
this Section 4(c)(i) shall be deemed completed unless and until Lender shall
have reimbursed Lessor in full for any and all damages, costs and expenses
incurred by Lessor as a proximate result of such default.
(ii) In the event of a default under the Lease by Successor Lessee, which
default cannot be fully cured by the payment of money as provided in Section
4(c)(i) above, Lessor shall not terminate the Lease by reason of such default
without first affording Lender the opportunity to cure such default. Lender
shall have thirty (30) days after receipt of a notice of such default mailed to
Lender pursuant to Section 4(a) above 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, Lender 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, that Lender must commence the curing thereof within said thirty (30)
day period and must thereafter diligently pursue such cure to completion. In the
event Lender is unable to effect such a cure without first obtaining possession
of the Premises, Lessor shall not terminate the Lease by reason of such default,
provided that immediately after receipt of Lessor's notice of default under
Section 4(a) above, Lender 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 Deed of Trust and cures such default within thirty (30) days
(as set forth in this Section 4(c)(ii)) after completion of the foreclosure
proceedings, or if such default cannot be fully cured within thirty (30) days,
Lender 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, that Lender must commence the curing
thereof within said thirty (30) day period and must thereafter diligently pursue
such cure to completion, and provided further that after obtaining possession of
the Premises Lender keeps and performs all of the terms, covenants and
conditions of the Lease, including the payment of rent under the Lease, as
provided in Section 4(d) below. In the event Lender fails to effect such cure
within the times and under the conditions specified in this Section 4(c)(ii),
Lessor may exercise any and all remedies available to it under the terms of the
Lease or this Amendment, including, without limitation, termination of the
Lease, provided, however, that the Lease shall not be terminated until five (5)
business days after Lender's receipt of written notice mailed to Lender stating
that the default has not been cured and that in five (5) business days after
receipt of this notice the Lease is terminated unless the
default is cured as noticed. A cure made after the thirty (30) 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) business day
notice of termination. No cure made or effected pursuant to this
Section 4(c)(ii) shall be deemed completed unless and until Lender shall have
reimbursed Lessor in full for any and all damages, costs and expenses incurred
by Lessor as a proximate result of such default.
(iii) The provisions of this Amendment regarding notices of default
and the time for curing defaults under the Lease shall supercede any provisions
in the Lease regarding notices of default and the time for curing defaults.
(d) No Merger of Interests. There will be no merger of the leasehold and
fee estates if any party acquired both interests, unless Lender consents in
writing to a merger.
(e) Insurance.
(i) Insurance shall be carried by Successor Lessee on the terms set
forth in the Loan Agreement and the Deed of Trust. All proceeds of casualty
insurance shall be made payable jointly to Lessor, Successor Lessee, Lender and
their respective successors and assigns. Current certificates evidencing such
insurance, and copies of the insurance policies, in form and substance
acceptable to Lessor shall be furnished by Successor Lessee to Lessor at all
times during the term of the Lease.
(ii) None of the provisions of Section 4(f)(i) above shall affect in
any manner the provisions of the first sentence of paragraph XI of the Lease,
and there shall be no reduction, abatement, adjustment or interruption of rent
or any other required payments under the Lease by reason of or in connection
with any damage or destruction, or any restoration or rebuilding in connection
therewith.
5. 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.
6. Successor Lessee Defined. All references to "Successor Lessee" herein
shall be deemed to include any and all assignees or sublessees of Successor
Lessee under the Lease.
7. Limit of Amendment. This Amendment shall become effective upon the closing
of the Loan. To the extent of any conflict or inconsistency between the terms
of this Amendment and the terms of the Lease, the terms of this Amendment shall
prevail and take precedence. Subject to the preceding sentence, however, all
terms and conditions of the Lease are hereby ratified and affirmed and shall
remain in full force and effect.
8. Lessor Certification. As of the date hereof, Lessor certifies to Trustee
as follows:
(a) A complete, true and accurate copy of the Lease and all amendments and
modifications thereto is attached hereto as Exhibit A, and the Lease has not
been amended or modified other than as shown on Exhibit A.
(b) Lessee is the current "lessee" under the Lease.
(c) The term of the Lease commenced on July 21, 1954 and will terminate
on July 31, 2038, subject to the following options, if any: ________________.
(d) All rent and other sums now due and payable by Lessee pursuant to the
Lease have been paid and are current through. Currently annual minimum rent
under the Lease is $195,480.00. Lessee's security deposit is $-0- $1,000,000
Trust Account.
(e) The Lease is in full force and effect and, to the best of Lessor's
knowledge, there are no defaults by Lessor, or events which, with the giving of
notice or the passage of time, or both, would constitute a default by Lessee of
any of its obligations under the Lease.
(f) Lessor has not received any notice from Lessee of any default by
Lessor of any of its obligations under the Lease.
(g) Lessor has not received any notice from any governmental agency
regarding (i) any pending or threatened condemnation of any portion of the
Premises, or (ii) any noncompliance by the Premises with any law, rule or
regulation.
(h) Lessor has received no notice of any prior sale, assignment, pledge
or other transfer of the Lease or of the rents received therein, except
_______________________________________________________________________________.
(i) Lessor has not assigned the Premises or the Lease or any portion
thereof, except _______________________________________________________________.
(j) All work required of Lessee by the Lease has been completed in
accordance with the terms of the Lease, and Lessee has no further obligations
under the Lease to make any alterations or improvements to the Premises.
(k) Lessor has given no notice to Lessee of Lessor's intention to
terminate the Lease prior to the end of the term of the Lease except ___________
_______________________________________________________________________________.
9. Successors and Assigns; Reliance. The agreements contained herein shall be
binding upon and shall inure to the benefit of Lessor and Successor Lessee and
their respective successors and assigns, and shall inure to the benefit of
Trustee and its successors and assigns. Lessor agrees that Successor Lessee and
Trustee shall be entitled to rely on the truth and accuracy of the matters set
forth herein in their decision to proceed with the above-referenced transfer
and financing transactions, and hereby agrees that any successors or assigns of
Trust may also so rely. Notice of acceptance of this Amendment by Trustee is
waived.
SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF, the parties hereto have executed this Lease Amendment
and Estoppel Certificate as of the day and year first written above.
LAS VEGAS LODGE NO. 32,
/s/ P.M. Haslenburg FREE & ACCEPTED MASONS,
Trustee as Lessor
/s/ James G. Kelly
Trustee By: /s/ Clarence C. Van Horn
------------------------------------
Name: Clarence C. Van Horn
Title: Trustee
FITZGERALDS LAS VEGAS,
INC., as Lessee
By: /s/ P.D. Griffith
------------------------------------
Name:
Title:
BARDEN NEVADA GAMING,
LLC, as Successor Lessee
By:
------------------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have executed this Lease Amendment
and Estoppel Certificate as of the day and year first written above.
LAS VEGAS LODGE NO. 32,
/s/ P.M. Haslenburg FREE & ACCEPTED MASONS,
Trustee as Lessor
/s/ James G. Kelly
Trustee By: /s/ Clarence C. Van Horn
------------------------------------
Name: Clarence C. Van Horn
Title: Trustee
FITZGERALDS LAS VEGAS,
INC., as Lessee
By: /s/ Philip D. Griffith
------------------------------------
Name: Philip D. Griffith
Title: President and Chief Executive
Officer
BARDEN NEVADA GAMING,
LLC, as Successor Lessee
By:
------------------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have executed this Lease Amendment
and Estoppel Certificate as of the day and year first written above.
LAS VEGAS LODGE NO. 32,
FREE & ACCEPTED MASONS,
as Lessor
By:
------------------------------------
Name:
Title:
FITZGERALDS LAS VEGAS,
INC., as Lessee
By:
------------------------------------
Name:
Title:
BARDEN NEVADA GAMING,
LLC, as Successor Lessee
By: /s/ Don H. Barden
------------------------------------
Name: Don H. Barden
Title: President
LEASE AMENDMENT AND ESTOPPEL CERTIFICATE
This LEASE AMENDMENT AND ESTOPPEL CERTIFICATE ("Amendment") is entered into
on the 6th day of December, 2001, by and among LAS VEGAS LODGE NO. 32, FREE &
ACCEPTED MASONS, of Las Vegas, Clark County, Nevada ("Lessor"), FITZGERALDS LAS
VEGAS, INC., a Nevada corporation ("Lessee"), and BARDEN NEVADA GAMING, LLC, a
Nevada limited liability company ("Successor Lessee").
WHEREAS, Lessor and Lessee (as assignee) are parties to that certain Lease
Agreement, dated July 21, 1954, by and between Lessor and H. John Gluskin (the
Lease Agreement, together with all amendments, assignments and other
modifications thereto, collectively, the "Lease");
WHEREAS, Lessor and Lessee's predecessor in interest under the Lease
entered into that certain Amendment to Masonic Lodge Ground Lease, dated
December 20, 1982 (the "PERS Amendment") in connection with a loan made by The
Public Employees Retirement System of Nevada to M.B. Dalitz and the M.B. Dalitz
Revocable Trust (the "Sundance Loan"), which loan was secured by a Deed of
Trust and Assignment of Rents, dated as of December 20, 1983, as recorded in
Clark County, Nevada on January 5, 1983, in Book 1669 as Instrument 1628020
(the "PERS Deed of Trust"), and which Sundance Loan has been paid in full and
which PERS Deed of Trust has been fully reconveyed and released of record;
WHEREAS, the PERS Amendment contains (i) a requirement for the maintenance
of a $1,000,000 trust fund (the "Fund") for the benefit of Lessor and certain
other ground lessors, and (ii) a restriction on the assignment or transfer of
Lessee's rights under the Lease or the grant of a security interest therein
which was to remain operative until a foreclosure or transfer in lieu of
foreclosure under the PERS Deed of Trust (the "Assignment Restriction");
WHEREAS, Lessee has transferred its interest under the Lease to Successor
Lessee;
WHEREAS, pursuant to that certain Indenture dated on or about the date
hereof (as supplemented and otherwise amended from time to time, the
"Indenture"), by and among Majestic Investor Holdings, LLC ("Holdings"),
Majestic Investor Capital Corp. ("Capital"), the Guarantors (defined therein),
and The Bank of New York, as trustee thereunder (in such capacity, "Trustee"),
Holdings and Capital will issue 11.653% Senior Secured Notes in an aggregate
maximum principal amount of $152,632,000 (collectively, the "Notes"). Unless the
context otherwise requires, all capitalized terms used and not otherwise defined
herein shall have the meanings ascribed thereto in the Indenture;
WHEREAS, pursuant to a guarantee included in the Indenture (as amended
from time to time, the "Subsidiary Guarantee"), Successor Lessee is
guaranteeing the obligations of Holdings and Capital under the Notes, the
Indenture and the other Security Documents to which Holdings and/or Capital is
a party;
WHEREAS, pursuant to the Indenture, the Subsidiary Guarantee is secured
by, among other things, a Deed of Trust, Security Agreement and Fixture Filing
with Assignment of Rents
("Deed of Trust") dated on or about there date hereof, executed by Successor
Lessee, as Trustor, for the benefit of Trustee, as Beneficiary, encumbering the
leasehold interest of Successor Lessee created by the Lease, and the buildings
and improvements now or hereafter located thereon (collectively, the
"Property"); and
WHEREAS, Trustee and the Holders would not enter into or consummate the
transactions contemplated by the Indenture in the absence of this Amendment
and, therefore, will be relying on this Amendment in acquiring the Notes.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. No Assignment Restriction. Lessor hereby agrees that as of the date hereof
the Assignment Restriction is void and of no force or effect.
2. Fund. Lessor hereby agrees that Lessee may substitute the Fund with a
letter of credit in the face amount of $1,000,000 from a creditworthy financial
institution and otherwise reasonably acceptable to Lessor, or with another form
of security reasonably acceptable to Lessor, as security for the performance of
Lessee's and Successor Lessee's obligations under the Lease.
3. Lessor Consent. Lessor acknowledges that Lessee has transferred its
interest under the Lease to Successor Lessee. Lessor consents to the Deed of
Trust and to the encumbrance of Successor Lessee's leasehold interest in the
Property pursuant to the Deed of Trust and the other collateral described in
the Deed of Trust by Successor Lessee pursuant to the execution, delivery and
recordation (in the Official County Records of Clark County, Nevada) of the
Deed of Trust and the other Security Documents.
4. Mortgagee Protection. Lessor agrees that so long as the Deed of Trust
remains unsatisfied of record or until written notice of satisfaction is given
by Trustee to Lessor, the following provisions shall apply:
(a) Notice to Trustee. Trustee shall be given a written notice of any
claimed default under the Lease by any party claiming the default. Trustee
shall have the right, but not the duty or obligation, to cure any default under
the Lease, as provided in Section 4(c) below. The right to cure shall include
the right to enter the leased premises demised under the Lease (the "Premises")
if necessary to effect a cure. Trustee's address for notification is as follows:
THE BANK OF NEW YORK
101 Barclay Street -- 21W
New York, New York 10286
Attention: Corporate Trust Administration
(b) Amendments. The Lease shall not be amended or modified without the
prior written approval of Trustee, which approval will not be unreasonably
withheld so long as Trustee's security for the loan evidenced by the Notes is
not impaired or destroyed.
(c) Default.
(i) In the event of a default under the Lease by Successor 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 Successor Lessee under the Lease, whether to Lessor or
to some other person or entity, Lessor shall not terminate the Lease by reason
of such default without first affording Trustee the opportunity to cure such
default. Trustee shall have ten (10) business days after receipt of a notice of
such default mailed to Trustee pursuant to Section 4(a) hereof in which to
effect such cure in accordance herewith and with the terms of the Lease,
including but not limited to the payment of any interest or other charges
imposed by reason of such default. In the event that Trustee 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 Lease or this Amendment,
including, without limitation, termination of the Lease; provided, however,
that the Lease shall not be terminated until five (5) business days after
Trustee's receipt of a notice mailed to Trustee in accordance with Section 4(a)
hereof stating that the default has not been cured and that in five (5) days
after receipt of this notice the 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 Section 4(c)(i) shall be
deemed completed unless and until Trustee shall have reimbursed Lessor in full
for any and all damages, costs and expenses incurred by Lessor as a proximate
result of such default.
(ii) In the event of a default under the Lease by Successor Lessee,
which default cannot be fully cured by the payment of money as provided in
Section 4(c)(i) above, Lessor shall not terminate the Lease by reason of such
default without first affording Trustee the opportunity to cure such default.
Trustee shall have thirty (30) days after receipt of a notice of such default
mailed to Trustee pursuant to Section 4(a) above 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, Trustee 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, that Trustee must commence the curing thereof within said
thirty (30) day period and must thereafter diligently pursue such cure to
completion. In the event Trustee is unable to effect such a cure without first
obtaining possession of the Premises, Lessor shall not terminate the Lease by
reason of such default, provided that immediately after receipt of Lessor's
notice of default under Section 4(a) above, Trustee 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 Deed of Trust and cures such default within
thirty (30) days (as set forth in this Section 4(c)(ii)) after completion of the
foreclosure proceedings, and provided further that after obtaining possession of
the Premises Trustee keeps and performs all of the terms, covenants and
conditions of the Lease, including the payment of rent under the Lease, as
provided in Section 4(d) below. In the event Trustee fails to effect such cure
within the times and under the conditions specified in this Section 4(c)(ii),
Lessor may exercise any and all remedies available to it under the terms of the
Lease or this Amendment, including, without limitation, termination of the
Lease, provided, however, that the Lease shall not be terminated until five (5)
business days after Trustee's receipt of a notice mailed to Trustee stating that
the default has not been cured and that in five (5) days after receipt
of this notice the 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 Section 4(c)(ii) shall be deemed completed unless and
until Trustee shall have reimbursed Lessor in full for any and all damages,
costs and expenses incurred by Lessor as a proximate result of such default.
(iii) The provisions of this Amendment regarding notices of default
and the time for curing defaults under the Lease shall supercede any provisions
in the Lease regarding notices of default and the time for curing defaults.
(d) Trustee Foreclosure; Lease Assumption. Trustee agrees that in the
event that it acquires Successor Lessee's leasehold estate by foreclosure or
other transfer in lieu of foreclosure, or by assignment of the Lease, it shall
thereby assume the Lease and be bound by all of the terms and provisions thereof
and perform all of the covenants to be performed by Successor Lessee thereunder,
all as though it were the originally named "lessee" thereunder.
(e) No Merger of Interests. There will be no merger of the leasehold and
fee estates if any party acquires both interests, unless Trustee consents in
writing to a merger.
(f) Insurance.
(i) Insurance shall be carried by Successor Lessee on the terms set
forth in the Indenture and the Deed of Trust. All proceeds of casualty insurance
shall be made payable jointly to Lessor, Successor Lessee, Trustee and their
respective successors and assigns. Current certificates evidencing such
insurance, and copies of the insurance policies, in form and substance
acceptable to Lessor shall be furnished by Successor Lessee to Lessor at all
times during the term of the Lease.
(ii) None of the provisions of Section 4(f)(i) above shall affect in
any manner the provisions of the first sentence of Paragraph XI of the Lease,
and there shall be no reduction, abatement, adjustment or interruption of rent
or any other required payments under the Lease by reason of or in connection
with any damage or destruction, or any restoration or rebuilding in connection
therewith.
5. 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.
6. Successor Lessee Defined. All references to "Successor Lessee" herein shall
be deemed to include any and all assignees or sublessees of Successor Lessee
under the Lease.
7. Limit of Amendment. This Amendment shall become effective upon the closing
of the loan evidencing the Notes. To the extent of any conflict or inconsistency
between the terms of this Amendment and the terms of the Lease, the terms of
this Amendment shall prevail and take
precedence. Subject to the preceding sentence, however, all terms and conditions
of the Lease are hereby ratified and affirmed and shall remain in full force and
effect.
8. Lessor Certification. As of the date hereof, Lessor certifies to Trustee
as follows:
(a) A complete, true and accurate copy of the Lease and all amendments and
modifications thereto is attached hereto as Exhibit A, and the Lease has not
been amended or modified other than as shown on Exhibit A.
(b) Lessee is the current "lessee" under the Lease.
(c) The term of the Lease commenced on July 21, 1954 and will terminate on
July 31, 2038, subject to the following options, if any: ________________
(d) All rent and other sums now due and payable by Lessee pursuant to the
Lease have been paid and are current through. Currently annual minimum rent
under the Lease is $195,480.00. Lessee's security deposit is $1,000,000 Trust
Account.
(e) The Lease is in full force and effect and, to the best of Lessor's
knowledge, there are no defaults by Lessor, or events which, with the giving of
notice or the passage of time, or both, would constitute a default by Lessee of
any of its obligations under the Lease.
(f) Lessor has not received any notice from Lessee of any default by
Lessor of any of its obligations under the Lease.
(g) Lessor has not received any notice from any governmental agency
regarding (i) any pending or threatened condemnation of any portion of the
Premises, or (ii) any noncompliance by the Premises with any law, rule or
regulation.
(h) Lessor has received no notice of any prior sale, assignment, pledge or
other transfer of the Lease or of the rents received therein, except __________
_______________________________________________.
(i) Lessor has not assigned the Premises or the Lease or any portion
thereof, except _______________________________________________________
________________________.
(j) All work required of Lessee by the Lease has been completed in
accordance with the terms of the Lease, and Lessee has no further obligations
under the Lease to make any alterations or improvements to the Premises.
(k) Lessor has given no notice to Lessee of Lessor's intention to
terminate the Lease prior to the end of the term of the Lease except __________
__________________________________________________.
9. Successors and Assigns; Reliance. The agreements contained herein shall be
binding upon and shall inure to the benefit of Lessor and Successor Lessee and
their respective successors and assigns, and shall inure to the benefit of
Trustee and its successors and assigns.
Lessor agrees that Successor Lessee and Trustee shall be entitled to rely on the
truth and accuracy of the matters set forth herein in their decision to proceed
with the above-referenced transfer and financing transactions, and hereby agrees
that any successors or assigns of Trust may also so rely. Notice of acceptance
of this Amendment by Trustee is waived.
SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF, the parties hereto have executed this Lease Amendment
and Estoppel Certificate as of the day and year first written above.
LAS VEGAS LODGE NO. 32,
/s/ P.M. Haslenburg FREE & ACCEPTED MASONS,
Trustee as Lessor
/s/ James G. Kelly
Trustee By: /s/ Clarence C. Van Horn
--------------------------
Name: Clarence C. Van Horn
Title: Trustee
FITZGERALDS LAS VEGAS,
INC., as Lessee
By:
--------------------------
Name:
Title:
BARDEN NEVADA GAMING,
LLC, as Successor Lessee
By:
--------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have executed this Lease Amendment
and Estoppel Certificate as of the day and year first written above.
LAS VEGAS LODGE NO. 32,
/s/ P.M. Haslenburg FREE & ACCEPTED MASONS,
Trustee as Lessor
/s/ James G. Kelly
Trustee By: /s/ Clarence C. Van Horn
--------------------------
Name: Clarence C. Van Horn
Title: Trustee
FITZGERALDS LAS VEGAS,
INC., as Lessee
By: /s/ XXX
--------------------------
Name:
Title:
BARDEN NEVADA GAMING,
LLC, as Successor Lessee
By:
--------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have executed this Lease Amendment
and Estoppel Certificate as of the day and year first written above.
LAS VEGAS LODGE NO. 32,
FREE & ACCEPTED MASONS,
as Lessor
By:
--------------------------
Name:
Title:
FITZGERALDS LAS VEGAS,
INC., as Lessee
By:
--------------------------
Name:
Title:
BARDEN NEVADA GAMING,
LLC, as Successor Lessee
By: /s/ Don H. Barden
--------------------------
Name: Don H. Barden
Title:
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