1
Exhibit 10(gg)
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of the 10th day
of December, 1999 by and between E.THREE CUSTOM ENERGY SOLUTIONS, LLC, A NEVADA
LIMITED LIABILITY COMPANY, ("Tenant"), FITZGERALDS LAS VEGAS, INC., A NEVADA
CORPORATION (either "Landlord" or "Customer"), and FOOTHILL CAPITAL
CORPORATION, A CALIFORNIA CORPORATION ("Lender").
RECITALS
A. Lender is the Beneficiary under that certain Deed of Trust, Security
Agreement and Fixture Filing with Assignment of Rents dated as of October 29,
1998 (as supplemented and otherwise amended from time to time) (hereinafter
"Mortgage") by and among Landlord, as Trustor, in favor of Lawyers Title
Insurance Corporation, as Trustee, for the benefit of Lender, as Beneficiary.
The Mortgage encumbers the Real Estate (hereinafter defined) and secures future
advances up to a principal indebtedness equal to $15,000,000.
B. Tenant will be entering into a lease agreement (such lease agreement,
together with all amendments and modifications thereof, is hereinafter referred
to as the "Lease") with Landlord, pursuant to which Tenant leased a certain
parcel of land in Las Vegas, Nevada (the "Real Estate") legally described in
Exhibit A attached hereto.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties do hereby covenant
and agree as follows:
1. Prior to pursuing any remedy available to Tenant under the Lease
and/or the Chilled Water Agreement, at law or in equity as a result of any
failure of Landlord to perform or observe any covenant, condition, provision or
obligation to be performed or observed by Landlord under the Lease and/or that
certain chilled water service agreement, of even date herewith, executed by
Tenant, as "Supplier", and Landlord, as "Customer" (the "Chilled Water
Agreement") (any such failure hereinafter referred to as a "Xxxxxxxxxx'x
Default"), Tenant shall: (a) provide Lender with a notice of Xxxxxxxxxx'x
Default specifying the nature thereof and the section of the Lease or the
Chilled Water Agreement under which same arose, and (b) allow Lender thirty
(30) days following receipt of such notice of Xxxxxxxxxx'x Default to cure the
same, provided, however, that, if such Xxxxxxxxxx'x Default is not readily
curable within such thirty (30) day period, Tenant shall give Lender such
additional time as Lender may reasonably need to cure such Xxxxxxxxxx'x Default
so long as Lender is diligently pursuing a cure, Tenant shall not pursue any
remedy available to it as a result of any Xxxxxxxxxx'x Default unless Lender
fails to cure same within the time period specified above.
2. Tenant covenants with Lender that the Lease and the Chilled Water
Agreement shall be subject and subordinate to the lien and all other provisions
of the Mortgage and the other documents evidencing or securing the loan secured
by the Mortgage (the "Other Loan Documents") and to all modifications and
extensions thereof, to the full extent of all principal, interest and all other
amounts secured thereby. Without limiting the generality of the foregoing
subordination provision, Tenant hereby agrees that any of its right, title and
interest in and to
1
2
condemnation awards (or other similar awards arising from eminent domain
proceedings) with respect to condemnation (or similar taking) of any of the Real
Estate, shall be subject and subordinate to Lender's right, title and interest
in and to such awards, except to the extent of any such award specifically
allocated to the value of Tenant's personal property, trade fixtures installed
by Tenant, at Tenant's cost, and/or other improvements installed by Tenant, at
Tenant's cost, located thereon.
3. Tenant acknowledges that Landlord has collaterally assigned to Lender
all leases affecting the Real Estate, including the Lease, and the rents due
and payable under such leases, in connection therewith, Tenant and Landlord
agree that, upon receipt of a demand by Lender for direct payment to Lender of
the rents due under the Lease, Tenant shall honor such demand and make all
subsequent rent payments directly to Lender, and Landlord waives all rights to
such rent payments in such event.
4. Lender agrees that so long as Tenant is not in default under the
Lease and/or the Chilled Water Agreement:
(a) Tenant shall not be named or joined as a party in any suit,
action or proceeding for the foreclosure of the Mortgage or the enforcement
of any rights under the Mortgage; and
(b) The possession by Tenant of the Real Estate and Tenant's rights
thereto shall not be disturbed, affected or impaired by, nor will the Lease
or the term thereof be terminated or otherwise materially adversely
affected by (i) any Suit, action or proceeding for the foreclosure of the
Mortgage or the enforcement of any rights under the Mortgage, or by any
judicial sale or execution or other sale of the Real Estate, or any deed
given in lieu of foreclosure, or (ii) any default under the Mortgage.
5. If Lender or any future holder of the Mortgage shall become the owner
of the Real Estate by reason of foreclosure of the Mortgage or otherwise, or if
the Real Estate shall be sold as a result of any action or proceeding to
foreclose the Mortgage or transfer of ownership by deed given in lieu of
foreclosure, the Lease and the Chilled Water Agreement shall continue in full
force and effect, without necessity for executing any new lease, as a direct
lease between Tenant and the new owner of the Real Estate as "landlord" upon all
the same terms, covenants and provisions contained in the Lease (subject to the
exclusions set forth in subparagraph (b) below), or executing a new chilled
water agreement and in such event,
(a) Tenant shall be bound to such new owner under all of the terms,
covenants and provisions of the Lease and the Chilled Water Agreement for
the remainder of the term thereof (including the extension periods, it
Tenant elects of has elected to exercise its options to extend the term),
and, upon Tenant's receipt of written notice from the former and new owner
as to a change in ownership of the Real Estate, Tenant hereby agrees to
attorn to such new owner and to recognize such new owner as "landlord"
under the Lease and to recognize such new owner as "customer" as long as
there exists no Customer Default under the Chilled Water Agreement at the
time of the receipt of said written notice;
2
3
(b) Such new owner shall be bound to Tenant under all of the terms,
covenants and provisions of the Lease and the Chilled Water Agreement for
the remainder of the term thereof (including the extension periods, if
Tenant or Customer, as applicable, elects or has elected to exercise its
options to extend the term); provided, however, that such new owner shall
not be:
(i) liable for any act or omission of any prior landlord
(including Landlord) or any prior customer (including Customer) that
is not then continuing under the Lease and the Chilled Water
Agreement; provided, however, that Tenant's sole remedy against Lender
with respect to any act or omission of any prior landlord (including
Landlord) that is then continuing under the Lease and the Chilled
Water Agreement shall be to assert against Lender any offsets of rent,
if any, or other defenses which Tenant has against any landlord under
the Lease and/or against any customer under the Chilled Water
Agreement (including Landlord) (subject to the limitations set forth
in clause (ii) below);
(ii) subject to any offsets or defenses which Tenant has
against any prior landlord (including Landlord) or any prior customer
(including Customer) unless Tenant shall have provided Lender with (A)
notice of the Xxxxxxxxxx'x Default that gave rise to such offset or
defense and (B) the opportunity to cure the same, all in accordance
with the terms of Section 1 above;
(iii) bound by any base rent, additional rent or any other
amounts payable under the Lease which Tenant might have paid in
advance for more than the current month to any prior landlord
(including Landlord), excluding, however, any offsets or rent credits
pursuant to the terms of the Chilled Water Agreement;
(iv) liable to refund or otherwise account to Tenant for any
security deposit not actually paid over to such new owner by Landlord;
(v) bound by any amendment or modification of the Lease and
the Chilled Water Agreement made without Lender's consent;
(vi) bound by, or liable for any breach of, any representation
or warranty or indemnity agreement contained in the Lease and/or the
Chilled Water Agreement or otherwise made by any prior landlord
(including Landlord) or by any prior customer (including Customer);
(vii) liable for the payment of any allowance or other amount
payable to the Tenant under the Lease and/or the Chilled Water
Agreement or the performance of any work required to be performed by
the Landlord under the Lease and/or the Customer under the Chilled
Water Agreement; or
(viii) liable for any breach of the Lease by any successor
landlord or for any breach of the Chilled Water Agreement by any
successor customer except during any period that Lender is the
landlord under the Lease or a customer under the Chilled Water
Agreement.
3
4
6. Any notices, communications and waivers under this Agreement shall be
in writing and shall be (i) delivered in person, (ii) mailed, postage prepaid,
either by registered or certified mail, return receipt requested or (iii) by
overnight express carrier, addressed in each case as follows:
To Lender: Foothill Capital Corporation
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 0000 Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Business Finance Division Manager
Facsimile: (000) 000-0000
With a copy to: Xxxxxxx, Xxxxxxx & Xxxxxxxx, LLP
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxx Ililson, Esq.
Facsimile: (000) 000-0000
To Landlord: Fitzgeralds Las Vegas, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxx Xxxxx, General Counsel
Facsimile: (000) 000-0000
With a copy to: Fitzgeralds Gaming Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxx XxXxxxxxx, Chief Financial Officer
Facsimile: (000) 000-0000
To Tenant: e.three Custom Energy Solutions, LLC
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Facsimile: (000) 000-0000
With a copy to: Sierra Pacific Energy Corporation
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attn: General Counsel
Facsimile: (000) 000-0000
or to any other address as to any of the parties hereto, as; such party shall
designate in a written notice to the other party hereto. All notices sent
pursuant to the terms of this Paragraph shall be deemed received (i) if
personally delivered, then on the date of delivery, (ii) if sent by overnight,
express carrier, then on the next federal banking day immediately following the
day sent, or
4
5
(iii) if sent by registered or certified mail, then on the earlier of the third
federal banking day following the day sent or when actually received.
7. This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto, their respective successors and assigns and any nominees
of Lender, all of whom are entitled to rely upon the provisions hereof. This
Agreement shall be governed by the laws of the State of Nevada. This Agreement
may be executed in multiple counterparts and all of such counterparts together
shall constitute one and the same Agreement. Upon the effectiveness of this
Agreement by the parties, Landlord, at Landlord's expense, shall cause the
Agreement to be recorded in the Official Records of Xxxxx County, Nevada.
8. If the terms of this Agreement conflict with any of the terms of the
Lease and/or the Chilled Water Agreement, the terms of this Agreement shall
control any issue related to Lender.
9. As a condition precedent to the effectiveness of this Amendment,
Lender shall have received Amendment Number One to that certain Loan and
Security Agreement by and between Foothill Capital Corporation and Fitzgeralds
Gaming Corporation, dated as of December 9, 1999, duly executed by Fitzgeralds
Gaming Corporation, a Nevada corporation, which shall be in form and substance
satisfactory to Lender and be in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed these presents the
day and year first above written.
Tenant: Lender:
E.THREE CUSTOM ENERGY FOOTHILL CAPITAL CORPORATION,
SOLUTIONS, LLC a California corporation
a Nevada limited liability company
By: /s/ XXXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXXX
------------------------------- ------------------------------------
Title: Member Board of Managers Title: Vice President/Account Executive
---------------------------- ---------------------------------
XXXXXXX X. XXXXX XXXXXX X. XXXXXX
Landlord:
FITZGERALDS LAS VEGAS, INC.,
a Nevada corporation
By: /s/ XXXXXXX X. XXXXXX
-------------------------------
Title: Vice President/G.M.
----------------------------
XXXXXXX X. XXXXXX
5
6
STATE OF NEVADA )
) SS.
)
On this 10th day of December, 1999, personally appeared before me, a notary
public in and for the county and late aforesaid, Xxxxxxx Xxxxx the Member Board
of Managers of E.THREE, CUSTOM ENERGY SOLUTIONS, LLC, a Nevada limited
liability company, being the Person authorized to sign such documents for and on
behalf of the aforesaid corporation, and known (or proven) to me to be the
person described in and who executed the foregoing instrument, and acknowledged
to me that he/she executed the same freely and voluntarily and for the uses and
purposes set forth therein.
----------------------------------------
Notary Public
/s/ Xxxxxx X. Xxxxx Notary Public-State Of Nevada
________________________________ [SEAL] COUNTY OF XXXXX
XXXXXX X. XXXXX
My Commission Expires: 3/18/2000 My Appointment Expires
March 18, 2000
No. 00-0000-0
----------------------------------------
STATE OF NEVADA )
) SS.
)
On this 10th day of December, 1999, personally appeared before me, a notary
public in and for the county and late aforesaid, Xxxxxxx X. Xxxxxx the Vice
President of Fitzgeralds Las Vegas Inc., a Nevada Corp., being the Person
authorized to sign such documents for and on behalf of the aforesaid
____________________, and known (or proven) to me to be the person described in
and who executed the foregoing instrument, and acknowledged to me that he/she
executed the same freely and voluntarily and for the uses and purposes set forth
therein.
----------------------------------------
Notary Public
/s/ Xxxxxx X. Xxxxx Notary Public-State Of Nevada
________________________________ [SEAL] COUNTY OF XXXXX
XXXXXX X. XXXXX
My Commission Expires: 3/18/2000 My Appointment Expires
March 18, 2000
No. 00-0000-0
----------------------------------------
6
7
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
-------------------------------------------------------------------------------
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES)
On December 10, 1999, before me, Xxxxxx Xxxxx-Xxxxx, Notary Public
----------------- ----------------------------------------------
DATE NAME, TITLE OF OFFICER, E.G. XXXX XXX. NOTARY PUBLIC
personally appeared Xxxxxx X. Xxxxxx
-----------------------------------------------------------
NAMES OF SIGNER(S)
[X] personally known to me to be the person whose name is subscribed to the
within instrument and acknowledged to me that she executed the same in her
authorized capacity, and that by her signature on the instrument the person, or
the entity upon behalf of which the person acted, executed the instrument.
XXXXXX XXXXX-XXXXX Witness my hand and official seal.
Commission # 1130617
Notary Public - California /s/ Xxxxxx Xxxxx-Xxxxx
Los Angeles County -------------------------------------
My Comm. Expires Mar. 23, 2001 Signature of Notary
--------------------------------------------------------------------------------
OPTIONAL SECTION
CAPACITY CLAIMED BY SIGNER
Though statute does not require the Notary to fill in the data below, doing so
may prove invaluable to person's relying on the document.
[] INDIVIDUAL
[X] CORPORATE, Vice President
OFFICERS__________________
Title(c)
[] PARTNERS ([]) LIMITED ([]) GENERAL
[] ATTORNEY-IN-FACT
[] TRUSTEE(S)
[] GUARDIAN/CONSERVATOR
[] OTHER______________________
___________________________
___________________________
SIGNER IS REPRESENTING:
NAME OF PERSON(s) OR ENTITY(IES)
--------------------------------
Foothill Capital Corporation
--------------------------------
--------------------------------------------------------------------------------
THIS TITLE OR TYPE OF DOCUMENT ----------------------------
CERTIFICATE ------------------------------------------------------
MUST BE Non-Disturbance And Attornment Agreement
ATTACHED TO ------------------------------------------------------
THE ------------------------------------------------------
DOCUMENT ------------------------------------------------------
DESCRIBED AT NUMBER OF PAGES 9
RIGHT: ----------------------------------------
------------------------- DATE OF DOCUMENT December, 1999
Though the data --------------------------------------
requested here is not SIGNER(S) OTHER THAN NAMED ABOVE:
required by law, it Parties on behalf of:
could prevent fraudulent ------------------------------------------------------
reattachment of this E. Three Custom Energy Solutions LLC
form ------------------------------------------------------
Fitzgeralds Las Vegas, Inc.
------------------------------------------------------
--------------------------------------------------------------------------------
8
EXHIBIT A
LEGAL DESCRIPTION OF LAND
ALL OF XXXX 00, 00, 00, 00 XXX 00 XX XXXXX 30 OF XXXXX'X LAS VEGAS TOWNSITE AS
SHOWN BY MAP THEREOF ON FILE IN BOOK 1 OF PLANTS, PAGE 37, IN THE OFFICE OF THE
COUNTY RECORDER OF XXXXX COUNTY, NEVADA.
TAX PARCEL NO.: 139-34-610-039
8
