EXHIBIT 10.10.10
SECOND AMENDMENT TO MASONIC 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 LAS
VEGAS LODGE NO. 32, FREE AND ACCEPTED MASONS OF LAS VEGAS, Xxxxx County, Nevada
(collectively "Lessor") and amends that certain Lease dated July 21, 1954, as
amended (the "Masonic Lease"), by and between H. Xxxx Xxxxxxx, as lessee, and
Las Vegas Lodge No. 32, Free and Accepted Masons of Las Vegas, Xxxxx County,
Nevada, 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 Lessor 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 Masonic Lease
to PERS. The Lessor 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 Masonic 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 Masonic 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 Masonic 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 Masonic 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 Masonic 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 Masonic Lodge 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 Masonic 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
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.
LESSOR: LESSEE:
Vegas Lodge No. 32, Free and Lessee Fitzgeralds Las Vegas, Inc.
Accepted Masons a Nevada corporation
/s/ Xxxxxx Xxxxxxxxxx By:
----------------------------- ------------------------------
Xxxxxx Xxxxxxxxxx, Trustee Its:
Dated November, 1998 ------------------------------
--
/s/ Xxxxx X. Xxxxx
-----------------------------
Xxxxx X. Xxxxx, Trustee
Dated 23 November, 1998
/s/ Xxxxxxx X. Xxxxxx
-----------------------------
Xxxxxxx X. Xxxxxx, Trustee
Dated 23 November, 1998
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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 )
)ss.
COUNTY OF )
On this 23rd day of November, 1998, personally appeared before me, a
Notary Public, Xxxxxx Xxxxxxxxxx, in his official capacity as the trustee of
the Vegas Lodge No. 32, Free and Accepted Masons.
/s/ Xxxxxxx X. Xxxxxxx
__________________________________
NOTARY PUBLIC
My Commission Expires:
4/26/99
____________________
[Xxxxxxx X. Xxxxxxx Notary Seal]
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STATE OF )
)ss.
COUNTY OF )
On this 23rd day of November, 1998, personally appeared before me, a
Notary Public, Xxxxx X. Xxxxx, in his official capacity as the trustee of the
Vegas Lodge No. 32, Free and Accepted Masons.
/s/ Xxxxxxx X. Xxxxxxx
__________________________________
NOTARY PUBLIC
My Commission Expires:
4-26-99
_____________________
[Xxxxxxx X. Xxxxxxx Notary Seal]
STATE OF )
)ss.
COUNTY OF )
On this 23rd day of November, 1998, personally appeared before me, a
Notary Public, Xxxxxxx X. Xxxxxx, in his official capacity as the trustee of the
Vegas Lodge No. 32, Free and Accepted Masons.
/s/ Xxxxxxx X. Xxxxxxx
__________________________________
NOTARY PUBLIC
My Commission Expires:
4-26-99
_____________________
[Xxxxxxx X. Xxxxxxx Notary Seal]
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The undersigned hereby represent that they have the authority to execute this
ADDENDUM.
LESSOR: LESSEE:
Vegas Lodge No. 32, Free and Lessee Fitzgeralds Las Vegas, Inc.
Accepted Masons a Nevada corporation
---------------------------------- By: /s/ XXX
Xxxxxx Xxxxxxxxxx, Trustee -----------------------------------
Dated __ November, 1998 Its: President
-----------------------------------
----------------------------------
Xxxxx X. Xxxxx, Trustee
Dated __ November, 1998
----------------------------------
Xxxxxxx X. Xxxxxx, Trustee
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-State of Nevada
[NOTARY COUNTY OF CLARK
SEAL] XXXXXX X. XXXXX /s/ Xxxxxx X. Xxxxx
My Appointment Expires ---------------------------------
March 18, 2000 NOTARY PUBLIC
No. XXX
---------------------------------------
My Commission Expires:
3/18/00
STATE OF )
)ss.
COUNTY OF )
On this day of , 1998, personally appeared before me, a
Notary Public, Xxxxxx Xxxxxxxxxx, in his official capacity as the trustee of
the Vegas Lodge No. 32, Free and Accepted Masons.
---------------------------------
NOTARY PUBLIC
My Commission Expires:
---------------------------------------
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