EXHIBIT 10.11.3
SECOND AMENDMENT TO HAM GROUND LEASE
This SECOND AMENDMENT is made, and is effective, as of the 22nd day of
November, 1998, by and between FITZGERALDS LAS VEGAS, INC. ("Lessee") and XXXX
X. XXXXXX, XXXXXXXXXX XXXXXX-XXXXX, XXXXXXX XXXXXXXX and XXXXXXX XXXXXXXX
(collectively the "Ham Lessors"), and further amend that certain lease dated
March 4, 1976, as amended (the "Ham Lease"), by and between the Nevada Building
Company, as lessee, and X.X. Xxx, Xx., as Trustee Under the Xxxxx of X.X. Xxx
and Xxxx X. Xxx, Deceased, as lessor.
RECITALS
A. WHEREAS, Lessee owns and operates a casino and hotel known as
Fitzgeralds Casino/Hotel Las Vegas (the "Casino/hotel").
B. WHEREAS, Lessee leases from the Ham Lessors a portion of the land on
which the Casino/hotel is situated.
C. WHEREAS, when Lessee purchased the hotel/casino, it assumed a loan (the
"Sundance loan") made by Public Employees Retirement System ("PERS") in favor
of Lessee's predecessor-in-interest to the Casino/hotel, M.B. Dalitz Revocable
Trust (the "Dalitz Trust"). As part of the collateral for the Sundance loan,
the Dalitz Trust was required to assign its interest in the Ham Lease to PERS.
The Ham Lessors agreed to the assignment on the condition that the Dalitz Trust
establish a $1,000,000 cash fund (the "Fund") to cure any default under the Ham
Lease and certain other ground leases (collectively the "Ground Leases"), to
pay any claims with respect to the Ground Leases, and to keep all of said
Ground Leases in good standing. Said Fund was to be held in trust by PERS.
D. WHEREAS, in December 1995, Lessee paid off the Sundance loan. Pursuant
to the Sundance loan documents, in the event PERS is no longer the secured
lender under the Sundance loan, PERS shall appoint the First Interstate Bank
("FIB") as the trustee of the Fund on the same terms and conditions under which
PERS served as trustee, and transfer the Fund to FIB.
E. WHEREAS, FIB no longer exists and its successor by merger, Xxxxx Fargo
Bank N.A., has agreed to act as successor trustee with respect to the Fund.
F. WHEREAS, the parties desire to amend the Ham Lease to interpret the
provisions therein related to the Fund in view of the fact that PERS is no
longer the trustee.
NOW THEREFORE, IN CONSIDERATION of the mutual promises and covenants set
forth herein and in the Ham Lease, and for other good and valuable
consideration, the receipt and sufficiency of which the parties acknowledge,
the parties agree as follows:
1. Article 6(a) of the 1982 Amendment to Ham Lease is hereby amended to read
as follows:
(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 PERS, or any
successor trustee, and used to cure any defaults under the Xxxxxx, Ham or
Masonic Ground Leases (collectively the "Ground Leases"), to pay claims of
any of the Xxxxxx, Ham or Masonic ground lessors (collectively the "Ground
Lessors") under the Ground Leases against the Lessee or any sub-lessee and
to take such other action as appears necessary or advisable to cure any
defaults under the Ground Leases and keep all of the Ground Leases in good
standing. The Fund shall be held in trust by PERS, or any successor
trustee, for the benefit of the Ground Lessors under the purposes stated
herein, and said trust shall be irrevocable. Said obligation to use the
Fund as permitted in this paragraph shall not arise until the Trustee has
been provided written notice of the circumstances requiring such use.
2. Article 6(d) of the 1982 Amendment to Ham Lease shall be amended to read
as follows:
In the event that PERS, or a successor trustee, makes a payment from the
Fund, or in the event the principal has been reduced or depleted because of
the investment of the Fund, it shall give notice to the Lessee and the
Ground Lessors of such payment and the amount, payee and purpose for the
claim paid, or loss of investment. In the event that PERS, or any successor
trustee, 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 in the amount paid out or
investment lost, so that the Fund will at all times have a market value of
at least One Million Dollars ($1,000,000.00). In that the Sundance Loan has
been completely repaid in accordance with its terms, failure to replenish
the Fund within said time period shall constitute a default under the
Ground Leases. In the event of such failure to replenish, Lessee and any
guarantor of the obligations of Lessee under the Ham Ground Lease shall be
personally, jointly and severally responsible and liable for Lessor to
effect such replenishment and their liability in this regard shall be
specifically enforceable.
OTHER THAN THE MODIFICATIONS SET FORTH ABOVE, ALL OF THE OTHER TERMS AND
CONDITIONS OF THE HAM LEASE AND DULY EXECUTED AMENDMENTS THERETO SHALL REMAIN
UNCHANGED.
THIS AMENDMENT MAY BE EXECUTED IN ONE OR MORE COUNTERPARTS, AND SHALL BE OF
FULL FORCE AND EFFECT WHEN THE SIGNED AND NOTARIZED COUNTERPARTS HAVE BEEN
EXCHANGED BETWEEN THE PARTIES, INCLUDING THE EXCHANGE OF FACSIMILE COPIES.
REGARDLESS OF THE NUMBER OF COUNTERPARTS, ALL COUNTERPARTS SHALL CONSTITUTE A
SINGLE AGREEMENT.
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THE UNDERSIGNED HEREBY REPRESENT THAT THEY HAVE THE AUTHORITY TO EXECUTE THIS
ADDENDUM.
THE HAM LESSORS: LESSEE:
(Each as a successor to X.X. Xxx, Xx., Fitzgeralds Las Vegas, Inc.
as Trustee under the xxxxx of X.X. Xxx a Nevada corporation
and Xxxx X. Xxx, deceased, as
(The Ham Lessors.)
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------- ---------------------------
Xxxx X. Xxxxxx Its: President
Dated November, 1998 ---------------------------
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--------------------------------
Xxxxxxxxxx Xxxxxx-Xxxxx
Dated November, 1998
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--------------------------------
Xxxxxxx Xxxxxxxx
Dated November, 1998
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--------------------------------
Xxxxxxx Xxxxxxxx
Dated November, 1998
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STATE OF NEVADA )
) ss.
COUNTY OF XXXXX )
On this 17th day of December, 1998, personally appeared before me, a
Notary Public, Xxxxxx X. Xxxxxxxx as President of Fitzgeralds Las Vegas, Inc.,
who acknowledged that he executed the above instrument.
[Notary Public Stamp] /s/ Xxxxxx X. Xxxxx
Notary Public-State of Nevada ----------------------------
COUNTY OF XXXXX NOTARY PUBLIC
XXXXXX X. XXXXX
My Appointment Expires
March 18, 2000
My Commission Expires:
3/18/00
----------------------
STATE OF )
) ss.
COUNTY OF )
On this day of , 1998, personally appeared before me, a
Notary Public, Xxxx X. Xxxxxx, in his official capacity as the trustee under
the xxxxx of X.X. Xxx and Xxxx X. Xxx, deceased, as (The Ham Lessors).
----------------------------
NOTARY PUBLIC
My Commission Expires:
----------------------
4
The undersigned hereby represent that they have the authority to execute this
ADDENDUM.
THE HAM LESSORS: LESSEE:
(Each as a successor to X.X. Xxx, Xx., Fitzgeralds Las Vegas, Inc.
as Trustee under the xxxxx of X.X. a Nevada corporation
Ham and Xxxx X. Xxx, deceased, as
(The Ham Lessors.)
/s/ Xxxx X. Xxxxxx By:
-------------------------------- -------------------------
Xxxx X. Xxxxxx Its:
Dated 20 November, 1998 ------------------------
--------------------------------
Xxxxxxxxxx Xxxxxx-Xxxxx
Dated November, 1998
--------------------------------
Xxxxxxx Xxxxxxxx
Dated November, 1998
--------------------------------
Xxxxxxx Xxxxxxxx
Dated November, 1998
3
STATE OF )
) ss.
COUNTY OF )
On this day of , 1998, personally appeared before me, a
Notary Public, Xxxxxx X. Xxxxxxxx as President of Fitzgeralds Las Vegas, Inc.,
who acknowledged that he executed the above instrument.
----------------------------
NOTARY PUBLIC
My Commission Expires:
----------------------
STATE OF ARKANSAS )
) ss.
COUNTY OF WASHINGTON )
On this 20th day of November, 1998, personally appeared before me, a
Notary Public, Xxxx X. Xxxxxx, in his official capacity as the trustee under
the xxxxx of X.X. Xxx and Xxxx X. Xxx, deceased, as (The Ham Lessors).
/s/ Xxxxx X. XXX, Jr.
----------------------------
NOTARY PUBLIC
[Notary Public Stamp]
My Commission Expires:
OFFICIAL SEAL
Xxxxx X. XXX, Jr.
NOTARY PUBLIC
Washington Co., AR
Expires: 10-20-2001
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The undersigned hereby represent that they have the authority to execute this
ADDENDUM.
THE HAM LESSORS: LESSEE:
(Each as a successor to X.X. Xxx, Xx., Fitzgeralds Las Vegas, Inc.
as Trustee under the xxxxx of X.X. a Nevada corporation
Ham and Xxxx X. Xxx, deceased, as
(The Ham Lessors.)
By:
-------------------------------- -------------------------
Xxxx X. Xxxxxx Its:
Dated November, 1998 ------------------------
/s/ Xxxxxxxxxx Xxxxxx-Xxxxx
--------------------------------
Xxxxxxxxxx Xxxxxx-Xxxxx
Dated November, 1998
--------------------------------
Xxxxxxx Xxxxxxxx
Dated November, 1998
--------------------------------
Xxxxxxx Xxxxxxxx
Dated November, 0000
0
XXXXX XX XXXXXX )
) ss.
COUNTY OF SHAWNEE )
On this 4th day of December, 1998, personally appeared before me, a
Notary Public, Xxxxxxxxxx Xxxxxx-Xxxxx, in her official capacity as the trustee
under the xxxxx of X.X. Xxx and Xxxx X. Xxx, deceased, as (The Ham Lessors).
[Notary Public Stamp] /s/ Xxx X. Xxxxxx
Xxx X. Xxxxxx ----------------------------
NOTARY PUBLIC NOTARY PUBLIC
State of Kansas
My Commission Expires:
Dec. 11, 2000
----------------------
STATE OF )
) ss.
COUNTY OF )
On this day of , 1998, personally appeared before me, a
Notary Public, Xxxxxxx Xxxxxxxx, in her official capacity as the trustee under
the xxxxx of X.X. Xxx and Xxxx X. Xxx, deceased, as (The Ham Lessors).
----------------------------
NOTARY PUBLIC
My Commission Expires:
----------------------
5
The undersigned hereby represent that they have the authority to execute this
ADDENDUM.
THE HAM LESSORS: LESSEE:
(Each as a successor to X.X. Xxx, Xx., Fitzgeralds Las Vegas, Inc.
as Trustee under the xxxxx of X.X. a Nevada corporation
Ham and Xxxx X. Xxx, deceased, as
(The Ham Lessors.)
By:
-------------------------------- -------------------------
Xxxx X. Xxxxxx Its:
Dated November, 1998 ------------------------
--------------------------------
Xxxxxxxxxx Xxxxxx-Xxxxx
Dated November, 1998
/s/ Xxxxxxx Xxxxxxxx
--------------------------------
Xxxxxxx Xxxxxxxx
Dated 22 November, 1998
--------------------------------
Xxxxxxx Xxxxxxxx
Dated November, 1998
3
STATE OF )
) ss.
COUNTY OF )
On this day of , 1998, personally appeared before me, a
Notary Public, Xxxxxxxxxx Xxxxxx-Xxxxx, in her official capacity as the trustee
under the xxxxx of X.X. Xxx and Xxxx X. Xxx, deceased, as (The Ham Lessors).
----------------------------
NOTARY PUBLIC
My Commission Expires:
----------------------
STATE OF FLORIDA )
) ss.
COUNTY OF MANATEC )
On this 22nd day of November, 1998, personally appeared before me, a
Notary Public, Xxxxxxx Xxxxxxxx, in her official capacity as the trustee under
the xxxxx of X.X. Xxx and Xxxx X. Xxx, deceased, as (The Ham Lessors).
/s/ XXX
----------------------------
NOTARY PUBLIC
My Commission Expires:
Feb. 7, 2000
----------------------
[Notary Public Stamp]
5
The undersigned hereby represent that they have the authority to execute this
ADDENDUM.
THE HAM LESSORS: LESSEE:
(Each as a successor to X.X. Xxx, Xx., Fitzgeralds Las Vegas, Inc.
as Trustee under the xxxxx of X.X. a Nevada corporation
Ham and Xxxx X. Xxx, deceased, as
(The Ham Lessors.)
By:
-------------------------------- -------------------------
Xxxx X. Xxxxxx Its:
Dated November, 1998 ------------------------
/s/ Xxxxxxxxxx Xxxxxx-Xxxxx
--------------------------------
Xxxxxxxxxx Xxxxxx-Xxxxx
Dated November, 1998
--------------------------------
Xxxxxxx Xxxxxxxx
Dated November, 1998
/s/ Xxxxxxx Xxxxxxxx
--------------------------------
Xxxxxxx Xxxxxxxx
Dated 12 December, 1998
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STATE OF FLORIDA )
) ss.
COUNTY OF PALM BEACH )
On this 11th day of December, 1998, personally appeared before me, a
Notary Public, Xxxxxxx Xxxxxxxx, in her official capacity as the trustee
under the xxxxx of X.X. Xxx and Xxxx X. Xxx, deceased, as (The Ham Lessors).
/s/ Xxxxxxx X. Xxxxxxxxx
----------------------------
NOTARY PUBLIC
My Commission Expires:
---------------------- [Notary Public Stamp]
XXXXXXX X. XXXXXXXXX
MY COMMISSION #CC 747159
EXPIRES: June 1, 2002
Bonded Thru Notary Public
Underwriters
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