EXHIBIT 10.9.4
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 (the "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 September 1, 1978, Jewel French Xxxxx, Xxxxx XxXxxxx Xxxxx, Xxxxx
Xxxxxx, Xxxxx Xxxxxxx and Xxxxxxx Xxxxx Xxxxxxx ("Landlord"), and M.B. Dalitz,
as lessee ("Dalitz"), entered into a written lease (the "Lease") in which
Landlord leased to Dalitz and Dalitz 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.
C. 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.
D. 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 and 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 coast 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
address 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/ X. 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:
-----------------------
3
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 Xxxxxx
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Name: Xxx Xxxxxx
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Title: President
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STATE OF NEVADA )
) SS.
COUNTY OF XXXXX )
On December 4, 2001, personally appeared before me, a Notary Public,
Xxxxxxx X. Xxxxxxxx as President/CEO of the Xxxxxxxxxx Las Vegas, a _________
corporation, who acknowledged that he executed the above instrument.
[NOTARY PUBLIC STAMP] XXXXXXX X. FREMONT
--------------------
Notary Public
STATE OF ILLINOIS )
) SS.
COUNTY OF XXXX )
On December 6, 2001, personally appeared before me, a Notary Public,
Xxx X. Xxxxxx as President of the Xxxxxx Nevada Gaming, LLC, a Nevada LLC,
who acknowledged that he executed the above instrument.
[NOTARY PUBLIC STAMP] XXXXX X. XXXXXX
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Notary Public
EXHIBIT A
DESCRIPTION OF THE PREMISES
Parcel Five (5):
Lots Seventeen (17) through Nineteen (19) 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 those portions of vacated alleys that lies adjacent to said lots
as provided for in that certain Order of Vacation recorded August 27, 1999 in
Book 990827 as Instrument/File No. 00495 of Official Records, Xxxxx Country,
Nevada.
Saving and excepting the Southwesterly 15.97 feet of Lot Nineteen (19) in Block
Thirty (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 all of that portion of the Southwesterly 15.97 feet of Lot
Nineteen (19) and Lot Twenty (20) and that portion of the Northeasterly 5.05
feet of Lot Twenty-One (21), all in Block Thirty (30) of Xxxxx'x Las Vegas
Townsite, as shown by map thereof on file in Book 1 Page 37, in the office of
the County recorder of Xxxxx County, Nevada, lying above that particular
horizontal plan established as elevation 2,033.64 feet based on the City of
Las Vegas Bench Xxxx No. 06134A11, said elevation being also the top of a
structural concrete floor.
Parcel Six (6)
The Southwesterly 15.97 feet of Lot Nineteen (19) in Block Thirty (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.
Saving and excepting therefrom all of that portion of the Southwesterly 15.97
feet of Lot Nineteen (19) and Lot Twenty (20) and that portion of the
Northeasterly 5.05 feet of Twenty-One (21), all in Block Thirty (30) of Xxxxx'x
Las Vegas Townsite, as shown by map thereof on file in Book 1 Page 37, in the
office of the County recorder of Xxxxx County, Nevada, lying above that
particular horizontal plane established as elevation 2, 033.64 feet based on
the City of Las Vegas Bench Xxxx No. 06134A11, said elevation being also the
top of a structural concrete floor.
Together with those portions of vacated alleys that lies adjacent to said lots
as provided for in that certain Order of Vacation recorded August 27, 1999 in
Book 990827 as Instrument/File No. 00495 of Official Records, Xxxxx County,
Nevada.
EXHIBIT B
Assignments and Amendments
Parcels Five (5) and Six (6):
A leasehold as created by that certain lease dated September 1, 1978, executed
by Jewel French Xxxxx and Xxxxx XxXxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxx Xxxxxxx and
Xxxxxxx Xxxxx Xxxxxxx, as lessors, and M.B. Dalitz, as lessee, recorded June
19, 1979, Instrument No. 1031691, Book 1072 of Official Records; as amended and
assigned by the following:
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;
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 December 20, 1982, executed by Xxxxx XxXxxxx Xxxxx, Xxxxx
Xxxxxx, Xxxxx Xxxxxxx, Xxxxxxx Xxxxx Xxxxxxx, M.B. Dalitz, the M.B. Dalitz
Revocable Trust, Sundance Hotel and Casino, Inc., Sundance Associates and
Public Employees Retirement System of Nevada, recorded January 5, 1983,
Instrument No. 1628019, Book 1669, of Official Records;
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;
Assignment executed by the M.B. Dalitz Revocable Trust as General Partner in
Sundance Associates, Inc., the interest of Assignor was assigned to Sundance
Hotel & Casino, Inc., a Nevada corporation, as assignee, recorded December 10,
1984, Instrument No. 1992485, Book 2033, said assignment was amended by that
certain "Amended Assignment" recorded December 11, 1984, Instrument No.
1993105, Book 2034 wherein a 50% interest of Sundance Associates, Inc. was
assigned to M.B. Dalitz, Trustee of the M.B. Dalitz Revocable Trust;
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 executed by Fitzgeralds Las Vegas 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 29, 1998, by and between
Fitzgeralds Las Vegas, Inc. 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 XxXxxxx Xxxxx, as successor in interest to Xxxxxx Xxxxxx Xxxxx,
Xxxxx Xxxxxxx and Xxxxxxx Xxxxx Xxxxxxx.
