EXHIBIT 10.9.3
SECOND AMENDMENT TO XXXXXX GROUND LEASE
This SECOND AMENDMENT is made, and is effective, as of the ____ day of
November, 1998, by and between FITZGERALDS LAS VEGAS, INC. ("lessee") and XXXX
X. XXXXXX, as Trustee of the Trust created by the Will of Xxxxx Xxxxxx,
deceased, as successor in interest to Xxxxx Xxxxxx, XXXXX LAMOYONE XXXXX, as
successor in interest to Xxxxxx Xxxxxx Xxxxx, and XXXXX XXXXXXX AND XXXXXXX
XXXXX XXXXXXX, (collectively "Lessors") and further amends that certain Lease
Agreement dated September 1, 1978, as amended (the "Xxxxxx Lease"), by and
between M.B. Dalitz, as lessee, and Xxxxx LaMonyne Xxxxx, Xxxxx Xxxxxx, Xxxxx
Xxxxxxx and Xxxxxxx Xxxxx Xxxxxxx, as Lessors.
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 Xxxxxx 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 Xxxxxx Lease to PERS.
The Xxxxxx 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 Xxxxxx 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 Xxxxxx 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 convenants set
forth herein and in the Xxxxxx 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 Xxxxxx 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 Xxxxxx 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 Xxxxxx 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 Xxxxxx Lease and any 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
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between the parties, including the exchange of facsimile copies. Regardless of
the number of counterparts, all counterparts shall constitute a single
agreement.
The undersigned hereby represent that they have the authority to execute this
ADDENDUM.
LESSORS: LESSEE:
/s/ Xxxxx X. Xxxxx Fitzgeralds Las Vegas, Inc.
------------------------------------ a Nevada corporation
Xxxxx XxXxxxx Xxxxx, as successor in
interest to Xxxxxx Xxxxxx Xxxxx
Dated 29 December, 1998
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Its: President
--------------------------
/s/ Xxxx X. Xxxxxx
------------------------------------
Xxxx X. Xxxxxx, as Trustee of the
Trust created by the Will of
Xxxxx Xxxxxx, deceased
Dated 14th December, 1998
/s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx
Dated 12/16/98
/s/ Xxxxxxx Xxxxx Xxxxxxx
------------------------------------
Xxxxxxx Xxxxx Xxxxxxx
Dated 12/15/98
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STATE OF )
)ss.
COUNTY OF )
On this 29th day of December, 1998, personally appeared before
me, a Notary Public, Xxxxx XxXxxxx Xxxxx, in her official capacity as the
successor in interest to Xxxxxx Xxxxxx Xxxxx, who acknowledged that she executed
the above instrument.
[SEAL] XXXXX X. XXXXXX /s/ Xxxxx X. Xxxxxx
Notary Public, State of Nevada --------------------
Xxxxx County NOTARY PUBLIC
Appointment No. 96330??
My Appt. Expires July 10, 2000
My Commission Expires:
7/10/2000
---------------------
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STATE OF CALIFORNIA )
)ss.
COUNTY OF LOS ANGELES )
On this 14th day of December, 1998, personally appeared before me, a
Notary Public, Xxxx X. Xxxxxx, in his official capacity as the Trustee of the
Trust created by the Will of Xxxxx Xxxxxx, Deceased.
[SEAL] XXXXXX X. XXXXXXXXX /s/ Xxxxxx X. Xxxxxxxxx
Commission #1126665 -----------------------
Notary Public - California NOTARY PUBLIC
Los Angeles County
My Comm. Expires Feb. 12, 2001
My Commission Expires:
2/12/01
---------------------
STATE OF CALIFORNIA )
)ss.
COUNTY OF VENTURA )
On this 16th day of December, 1998, personally appeared before me, a
Notary Public, Xxxxx Xxxxxxx, who acknowledged that she executed the above
instrument.
[SEAL] XXXXXXX X. XXXXXX /s/ Xxxxxxx Xxxxxx
COMM. #1195935 -----------------------
NOTARY PUBLIC - CALIFORNIA NOTARY PUBLIC
VENTURA COUNTY
My Comm. Expires
OCTOBER 8, 2002
My Commission Expires:
10/8/2002
---------------------
5
STATE OF CALIFORNIA )
)ss.
COUNTY OF VENTURA )
On this 16th day of December, 1998, personally appeared before me, a
Notary Public, Xxxxxxx Xxxxx Xxxxxxx, who acknowledged that he executed the
above instrument.
[SEAL] XXXXXXX X. XXXXXX /s/ Xxxxxxx Xxxxxx
COMM. #1195935 -----------------------
NOTARY PUBLIC - CALIFORNIA NOTARY PUBLIC
VENTURA COUNTY
My Comm. Expires
OCTOBER 8, 2002
My Commission Expires:
10/8/2002
---------------------
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