EXHIBIT 10.10.12
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Xxxxxxxx Love, Esq.
Xxxxxx & Xxxxxxx
Xxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
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 Xxxxxx Nevada Gaming, LLC, a Nevada limited liability company
("Assignee" and, together with Assignor, the "Parties" and each, a "Party").
PRELIMINARY STATEMENTS
A. ON JULY 21, 1954, Las Vegas Lodge #32, Free and Accepted Masons
("Landlord"), and H. Xxxx Xxxxxxx, as lessee ("Gluskin"), entered into a written
lease (the "Lease") in which Landlord leased to Gluskin and Gluskin 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., 000 Xxxx Xxxxxx 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.
A. 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.
B. 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 Xxxxx 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 solely 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 Xxxxx 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/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
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Title: President/CEO
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ASSIGNEE:
Xxxxxx Nevada Gaming, LLC,
a Nevada limited liability company
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
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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:
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ASSIGNEE
XXXXXX NEVADA GAMING, LLC,
a Nevada limited-liability company
By: /s/ Xxx X. Xxxxxx
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Name: Xxx X. Xxxxxx
------------------------
Title: President
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STATE OF NEVADA
-------- )
COUNTY OF XXXXX ) SS.
------- )
On December 4, 2001, personally appeared before me, a Notary Public,
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Xxxxxx X. Xxxxxxxx as President/CEO of the FITZGERALDS LAS VEGAS, INC., a
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Nevada Corporation, who acknowledged that he executed the above instrument.
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[NOTARY SEAL]
XXXXXXX X. FREMONT
Notary Public-Nevada /s/ XXXXXXX X. FREMONT
No. 00-00000-0 --------------------------
My appt. exp. Jan. 17, 0000 Xxxxxx Xxxxxx
XXXXX XX Xxxxxxxx
----------- )
COUNTY OF XXXX ) SS.
---------- )
On December 6, 2001, personally appeared before me, a Notary Public,
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Xxx X. Xxxxxx as President of the Xxxxxx Nevada Gaming LLC, a
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Nevada LLC, who acknowledged that he executed the above instrument.
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/s/ Xxxxx X. Xxxxxx
--------------------------
Notary Public
[NOTARY SEAL]
"OFFICIAL SEAL"
XXXXX X. XXXXXX
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES 7/29/2005
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EXHIBIT A
Description of the Premises
LEASEHOLD PARCELS:
Parcel One (1):
Lots One (1) through Four (4) in Block 30 of Xxxxx'x 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 Xxxxx 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 Xxxxx County, Nevada, as follows:
That portion of that certain Northwest-Southwest alley in Block Thirty (30) of
said Xxxxx'x 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 a point; thence at right
angles to the Southwesterly line of said lots a distance of 10 feet to a point;
thence Northwesterly and parallel to the Southwesterly line of lots One (1)
through Four (4) in Block Thirty (30) a distance of 100 feet to a point; thence
Northeasterly a distance of 10 feet to the TRUE POINT OF BEGINNING.
EXHIBIT B
ASSIGNMENTS AND AMENDMENTS
Parcel One (1):
A leasehold as created by that certain lease dated July 21, 1954, executed by
Las Vegas Lodge No. 32, Free & Accepted Masons, as lessor, and H. Xxxx Xxxxxxx,
as lessee, and recorded July 27, 1954, Instrument No. 16355, Book 17, of
Official Records; as amended and assigned by the following:
Amendment dated July 24, 1954, executed by Las Vegas Lodge No. 32, Free &
Accepted Masons, as lessor, and H. Xxxx Xxxxxxx, as lessee, recorded July 27,
1954, Instrument No. 16356, Book 17, of Official Records;
Assignment dated July 27, 1954, executed by H. Xxxx Xxxxxxx, as Assignor, the
interest of Assignor in and to the above leasehold estate was assigned to Xxxxx
Xxxxxxxxx, as assignee, recorded July 27, 1954, Instrument No. 16359, Book 17,
and rerecorded July 29, 1954, Instrument No. 16523, Book 17 of Official Records;
Supplemental Agreement dated October 14, 1954, executed by Las Vegas Lodge No.
32, Free & Accepted Masons, lessor, and Xxxxx Xxxxxxxxx, lessee, recorded
February 4, 1955, Instrument No. 34334, Book 39, of Deeds of Official Records;
Assignment dated February 2, 1955, executed by H. Xxxx Xxxxxxx, as Assignor, the
interest of Assignor in and to the above leasehold estate was assigned to Xxxxx
Xxxxxxxxx, as assignee, recorded February 5, 1955, Instrument No. 34335, Book
39, of Official Records;
Assignment dated January 31, 1955, executed by Xxxxx Xxxxxxxxx, as Assignor, the
interest of Assignor in and to the above leasehold estate was assigned to
Three-O-One Corporation, as assignee, recorded February 1, 1955, Instrument No.
33943, Book 39, and rerecorded February 4, 1955, Instrument No. 34336, Book 39,
of Official Records;
Assignment dated August 7, 1972, executed by Three-O-One Corporation, as
Assignor, the interest of Assignor in and to the above leasehold estate was
assigned to The Xxxxxxx Company, and Xxxxxxx X. Xxxxxxx, d/b/a Nevada Building
Company, as assignees, recorded August 11, 1972, Instrument No. 213615, Book
254, of Official Records;
Amendment dated June 7, 1973, executed by Las Vegas Lodge No. 32, Free &
Accepted Masons, as lessor, Xxxxxxx X. Xxxxxxx and The Xxxxxxx Company d/b/a
Nevada Building Company, as lessee, recorded June 19, 1973, Instrument No.
297840, Book 338, of Official Records;
Assignment dated April 18, 1979, executed by Xxxxxxx X. Xxxxxx, Xxxxxxx X.
Xxxxxxx and Xxxxx X. Xxxxx, Partners of 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. 1000778 Book 1041, and
rerecorded April 26, 1979, Instrument No. 1004574, Book 1045 of Official
Records;
Amendment dated April 18, 1979, executed by Las Vegas Lodge No. 32, Free &
Accepted Masons, as lessor, and M.B. Dalitz, as lessee, recorded April 18, 1979,
Instrument No. 1000779, Book 1041, of Official Records;
Amendment dated April 18, 1979, executed by Las Vegas Lodge No. 32, Free &
Accepted Masons, as lessor, and M.B. Dalitz, as lessee, recorded April 18, 1979,
Instrument No. 1000780, Book 1041, 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 Xxx X. Xxxxxx,
Trustee of "The M. B. Dalitz Revocable Trust" dated January 25, 1980 as
assignee, recorded September 12, 1980, Instrument No. 1239412, Book 1280;
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;
Amendment dated December 20, 1982, executed by Las Vegas Lodge No. 32, Free &
Accepted Masons, as lessor, M. B. Dalitz, as lessee, the M. B. Dalitz Revocable
Trust, Sundance Hotel and Casino, Inc., Sundance Associates, Inc. and Public
Employees Retirement System of Nevada, recorded January 5, 1983, Instrument No.
1628017, Book 1669, of Official Records.
Assignment dated December 30, 1982, executed by M. B. Dalitz a/k/a/ Xxx X.
Xxxxxx and Xxx X. Xxxxxx 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 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;
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 23, 1998, executed by
Fitzgeralds Las Vegas, Inc. and Las Vegas Lodge No. 32, Free and Accepted
Masons.
