EXHIBIT 10.11.4
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
▇▇▇▇▇▇▇▇ Love, Esq.
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ASSIGNMENT OF GROUND LEASE
This Assignment of Ground Lease (this "Assignment") made this 6th day of
December, 2001 by and between Fitzgeralds Las Vegas, Inc., a Nevada corporation
("Assignor"), and ▇▇▇▇▇▇ Nevada Gaming, LLC, a Nevada limited liability company
("Assignee" and, together with Assignor, the "Parties" and each, a "Party").
PRELIMINARY STATEMENTS
A. On March 4, 1976, ▇.▇. ▇▇▇, ▇▇., trustee under the ▇▇▇▇▇ of ▇.▇. ▇▇▇
and ▇▇▇▇ ▇▇▇, deceased ("Landlord"), and Nevada Building Company, as lessee
("Nevada Building"), entered into a written lease (the "Lease") in which
Landlord leased to Nevada Building and Nevada Building leased from Landlord the
land described in Exhibit "A" attached hereto (the "Premises"). The Lease was
subsequently assigned to several different lessees, and lessee's interest was
ultimately assigned to Assignor. A complete list of assignments and amendments
is attached hereto as Exhibit "B".
B. The Parties hereto are parties to that certain Purchase and Sale
Agreement dated as of November 22, 2000, by and among Majestic Investor
Holdings, LLC, Fitzgeralds Las Vegas, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Limited Liability
Company, Fitzgeralds Mississippi, Inc., Fitzgeralds Gaming Corporation, and
certain other affiliates of the foregoing parties, as amended by that certain
First Amendment to Purchase and Sale Agreement dated as of December 4, 2000 and
as amended by that certain Second Amendment to Purchase and Sale Agreement
dated as of November 1, 2001, as assigned (as amended and assigned, the
"Purchase and Sale Agreement"), pursuant to which Assignor has agreed to assign
and transfer all Real Property Leases (as defined in the Purchase and Sale
Agreement) to Assignee.
B. The United States Bankruptcy Court for the District of Nevada,
Northern Division entered an order dated March 19, 2001 and an Amendment to
that order dated October 4, 2001, which approved the assumption and assignment
of certain executory contracts and unexpired leases, including this Lease,
pursuant to Section 365 of the Bankruptcy Code.
C. Assignor now wishes to assign all of its right, title and interest
in the Lease to Assignee and Assignee wishes to accept the assignment from
Assignor and assume all of Assignor's obligations under the Lease.
1
AGREEMENT
1. Effective Date of Assignment. The assignment in this Assignment shall
take effect on December 6th, 2001 at 11:59 p.m. Pacific Standard Time (the
"Effective Date"). Assignor shall deliver possession of the Premises to
Assignee on the Effective Date.
2. Assignment and Assumption. Assignor assigns and transfers to
Assignee all of its right, title and interest in the Lease as well as all
appurtenances, easements, licenses, permits, operating agreements and all other
real property interests and agreements relating to Assignor's use of the
Premises, and Assignee accepts the assignment and assumes and agrees to
perform, from the Effective Date, as a direct obligation to Landlord, all of
the provisions in the Lease.
3. Ground Lessor's Fund. The Parties acknowledge that a One Million
Dollar ($1,000,000) trust fund (the "Fund") is maintained at ▇▇▇▇▇ Fargo Bank,
N.A. by Assignor for the benefit of Landlord and other ground lessors presently
leasing property to Assignor. At or close in time to the Effective Date, the
Fund will be transferred to Assignee, who shall continue to maintain the Fund
for the benefit of the Landlord and other ground lessors, pursuant to the terms
of the Lease. Upon transfer of the Fund, Assignee shall be responsible for all
trust administration costs and Assignor shall have no further obligations with
respect to the Fund.
4. Hold Harmless. If Assignee defaults under the Lease, Assignee shall
indemnify and hold Assignor harmless from all damages resulting from the
default. If Assignee defaults in its obligations under the Lease and Assignor
pays rent to Landlord; and/or fulfills any of the Assignee's other obligations
in order to prevent Assignee from being in default, Assignee shall immediately
reimburse Assignor for the amount of the rent or cost expended by Assignor,
together with interest on those sums at a rate of twelve percent (12%) per
annum. If Assignor defaults under the Lease at any time prior to Closing, as
defined in the Purchase and Sale Agreement, Assignor shall indemnify and hold
harmless Assignee from all damages resulting from the default. Notwithstanding
the foregoing, the covenants contained in this Assignment shall not supercede
those representations and warranties set forth in the Purchase and Sale
Agreement.
5. Miscellaneous. This Assignment is the entire agreement and supercedes
all prior agreements or representations, except as otherwise indicated in this
Assignment. This Assignment is binding on the Parties hereto, their successors
and assigns, and shall not confer any rights or remedies to any third person.
No waiver of any provision of this Assignment shall be valid unless the same is
in writing and signed by the Party against whom such waiver is sought to be
enforced. No valid waiver of any provision of this Assignment at any time shall
be deemed a waiver of any other provision of this Assignment. The Parties
warrant and represent that the individuals signing below are authorized and
empowered to enter into and execute this Assignment on behalf of each Party
respectively. This Assignment shall be governed by the laws of the State of
Nevada without giving effect to any choice or conflict of law provision and the
sole jurisdiction and venue shall be ▇▇▇▇▇ County, Nevada. All notices and
other communication shall be in writing and sent by registered or certified
mail to the addresses listed in the Purchase and Sale Agreement or such other
addresses provided by the Parties.
2
IN WITNESS WHEREOF, the Parties have set their hands as of the date and
year first written above.
ASSIGNOR:
Fitzgeralds Las Vegas, Inc.,
a Nevada corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Title: President/CEO
ASSIGNEE:
▇▇▇▇▇▇ Nevada Gaming, LLC,
a Nevada limited liability company
By:
--------------------------------
Name:
-------------------------------
Title:
------------------------------
3
IN WITNESS WHEREOF, the parties hereto have set their hands as of the date
and year first above written.
ASSIGNOR
FITZGERALDS LAS VEGAS, INC.,
a Nevada corporation
By:
-----------------------------------
Name:
----------------------------
Title:
----------------------------
ASSIGNEE
▇▇▇▇▇▇ NEVADA GAMING, LLC,
a Nevada limited-liability company
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
STATE OF NEVADA )
) ss.
COUNTY OF ▇▇▇▇▇ )
On December 4th, 2001, personally appeared before me, a Notary Public,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as President/CEO of the ▇▇▇▇▇▇▇▇▇▇'▇ Las Vegas, Inc., a
Nevada corporation, who acknowledged that he executed the above instrument.
[NOTARY PUBLIC SEAL]
▇▇▇▇▇▇▇ ▇. FREMONT /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Notary Public - Nevada --------------------------------------
No. ▇▇-▇▇▇▇▇-▇ Notary Public
My appt. exp. Jan. 17, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ )
) ss.
COUNTY OF ▇▇▇▇ )
On December 6, 2001, personally appeared before me, a Notary Public, ▇▇▇ ▇▇▇▇▇▇
as President of the ▇▇▇▇▇▇ Nevada Gaming, LLC, a Nevada, LLC, who acknowledged
that he executed the above instrument.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Notary Public
[NOTARY PUBLIC SEAL]
"OFFICIAL SEAL"
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES 7/29/2005
4
EXHIBIT A
DESCRIPTION OF THE PREMISES
Parcel Two (2):
Lots Five (5) and Six (6) in Block 30 of ▇▇▇▇▇'▇ 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 ▇▇▇▇▇ County, Nevada.
Together with that portion of vacated alley as provided for in that certain
Order of Vacation recorded April 9, 1979 as Document No. 995695 of Official
Records of ▇▇▇▇▇ County, Nevada, as follows:
That portion of that certain Northwest-Southwest alley in Block Thirty (30)
of said ▇▇▇▇▇'▇ Las Vegas Townsite described as follows:
Commencing at the Southwesterly corner of said lot One (1) described above;
thence Southeasterly along the Southerly line of lots One (1) through Four (4)
of said Block Thirty (30) a distance of 100.00 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 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.
Together with those portions of vacated alleys that lies adjacent to said lots
as provided for in that certain Order of Vacation recorded August 27, 1999 in
Book 990827 as Instrument/File No. 00495 of Official Records, ▇▇▇▇▇ County,
Nevada.
EXHIBIT B
ASSIGNMENTS AND AMENDMENTS
Parcel Two (2):
A leasehold as created by that certain lease dated March 4, 1976, executed by
▇. ▇. ▇▇▇, ▇▇., Trustee under the ▇▇▇▇▇ of ▇. ▇. ▇▇▇ and ▇▇▇▇ ▇▇▇, deceased, as
lessor, and Nevada Building Company, a partnership comprised of ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇, as lessee, a General form of said lease recorded
March 10, 1976, Instrument No. 561142, Book 602 of Official Records; as amended
and assigned by the following:
Assignment dated April 18, 1979, executed by Nevada Building Company, the
interest of Assignor in and to the above leasehold estate was assigned to
M.B. Dalitz, as assignee, recorded April 18, 1979, Instrument No. 1000777 Book
1041, and rerecorded April 26, 1979, Instrument No. 1004573, Book 1045 of
Official Records;
Assignment dated June 13, 1980, executed by M.B. Dalitz, the interest of
Assignor in and to the above leasehold estate was assigned to ▇▇▇ ▇. ▇▇▇▇▇▇,
Trustee of "The M. B. Dalitz Revocable Trust" dated January 25, 1980, as
assignee, recorded September 12, 1980, Instrument No. 1239412, Book 1280;
Amendment dated December 30, 1982, executed by ▇. ▇. ▇▇▇, ▇▇., Trustee under the
▇▇▇▇▇ of ▇. ▇. ▇▇▇ and ▇▇▇▇ ▇▇▇, deceased as lessor, and M.B. Dalitz, Trustee of
the M. B. Dalitz Revocable Trust dated October 8, 1980, as amended December 20,
1982 as lessee, recorded December 30, 1982, Instrument No. 1626307, Book 1667,
of Official Records,
Memorandum of Lease dated December 30, 1982, executed by M. B. Dalitz, the M. B.
Dalitz Revocable Trust and Sundance Hotel & Casino, Inc. wherein an Amended and
Restated Lease dated September 24, 1980 was subleased to Sundance Associates,
recorded December 30, 1982, Instrument No. 1626309, Book 1667;
Assignment dated December 30, 1982, executed by M.B. Dalitz a/k/a ▇▇▇ ▇. ▇▇▇▇▇▇
and ▇▇▇ ▇. ▇▇▇▇▇▇ as Trustee under the Revocable Trusts dated January 4, 1980;
October 8, 1980 (as amended December 20, 1982) and May 27, 1982, as assignors,
to the M. B. Dalitz Revocable Trust dated October 8, 1980 (as amended December
20, 1982), as assignee trust, recorded December 30, 1982, Instrument No.
1626310, Book 1667.
Amendment dated December 20, 1982, executed by ▇. ▇. ▇▇▇, ▇▇., Trustee under the
▇▇▇▇▇ of ▇. ▇. ▇▇▇ and ▇▇▇▇ ▇▇▇, deceased as lessor, and M.B. Dalitz, Trustee of
the M. B. Dalitz Revocable Trust, as lessee, Sundance Hotel and Casino, Inc.,
Sundance Associates, Inc. and Public Employees Retirement System of Nevada,
recorded January 5, 1983, Instrument No. 1628018, Book 1669, of Official
Records,
Amendment dated January 5, 1983, executed by M. B. Dalitz, the M. B. Dalitz
Revocable Trust, Pioneer Citizens Bank of Nevada, Sundance Hotel and Casino,
Inc. and Sundance Associates, recorded January 5, 1983, Instrument No. 1628023,
Book 1669, of Official Records;
A Termination of the leasehold interest held by the Sundance Hotel and Casino,
Inc., a Nevada corporation, was recorded November 2, 1987, in Book 871102, as
Instrument No. 00191; Deed to Fremont and Third Limited Partnership, a Nevada
limited partnership recorded November 2, 1987, in Book 871102, as Instrument No.
00197; Deed to Fitzgeralds Las Vegas Limited Partnership, recorded March 25,
1994, in Book 940325, as Instrument No. 02224;
Assignment dated November 1, 1987, executed by M.B. Dalitz, Trustee of The
M.B. Dalitz Revocable Trust, the interest of Assignor in and to the above
leasehold estate was assigned to Fremont and Third Limited Partnership, a Nevada
limited partnership, as assignee, recorded November 2, 1987, Instrument
No. 00198, Book 871102;
Trustee's Deed dated June 15, 1990, executed by ▇. ▇. ▇▇▇, ▇▇., Trustee of the
▇▇▇▇▇ of ▇. ▇. ▇▇▇ and ▇▇▇▇ ▇▇▇, deceased, in favor of ▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, recorded June 18,
1990, Instrument No. 03421, Book 900618.
Assignment dated December 31, 1994, executed by Fitzgeralds Las Vegas Limited
Partnership (formerly Fremont and Third Limited Partnership), a Nevada limited
partnership, the interest of Assignor in and to the above leasehold estate was
assigned to Fitzgeralds Las Vegas Inc., a Nevada corporation, as assignee,
recorded February 17, 1995, Instrument No. 00134, Book 950217,
Unrecorded Second Amendment dated as of November 22, 1998, executed by
Fitzgeralds Las Vegas, Inc. and ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.