FIRST AMENDMENT TO LEASE
Exhibit 10.1
FIRST AMENDMENT TO LEASE
This FIRST AMENDMENT TO LEASE (the “Amendment”) is entered into as of April 14, 2021 (the “Effective Date”), by and between BCORE PARADISE LLC, a Delaware limited liability company (“Landlord”), and BELLAGIO, LLC, a Nevada limited liability company (“Tenant”).
RECITALS
A.Landlord and Tenant have entered into that certain Lease dated as of November 15, 2019 (the “Lease”). Capitalized terms used in this Amendment and not otherwise defined herein shall have the meanings set forth in the Lease.
B.Landlord and Tenant desire to amend the Lease to extend the date by which Tenant is obligated to spend at least $275,000,000 on Qualifying CapEx from the expiration of the CapEx Testing Period ending December 31, 2023 until December 31, 2025 as more particularly set forth herein.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.Definition of Required CapEx. The definition of “Required CapEx” is hereby deleted in its entirety and replaced with the following:
““Required CapEx”: An aggregate amount of Qualifying CapEx spent during the applicable CapEx Testing Period equal to the product of (x) the Specified CapEx Percentage (based on the applicable Specified CapEx Percentage for each Lease Year during such CapEx Testing Period) and (y) the actual Net Revenue of the Leased Property during such CapEx Testing Period; provided, however, the Required CapEx during the CapEx Testing Period ending December 31, 2023, shall not be less than $175,000,000.”
2.Definition of Deferred Capex Amount. The definition of “Deferred CapEx Amount” is hereby added immediately after the definition of “Debt Facilities” and before the definition of “Disclosure Documents”:
““Deferred CapEx Amount ”: The difference, if positive, of $275,000,000 less the aggregate amount of Qualifying CapEx spent during the CapEx Testing Period ending December 31, 2023.”
3.Capex Reserve Account. Section 9.1(e)(i) shall be revised to add the following after the last sentence thereof:
“Notwithstanding anything contained herein to the contrary, to the extent there is a Deferred CapEx Amount (but without limiting in any way Tenant’s obligation to expend the Required CapEx during the CapEx Testing Period ending December 31, 2023), Tenant shall not be obligated to deposit such Deferred CapEx Amount into the CapEx Reserve pursuant to this Section 9.1(e)(i) unless and until such Deferred CapEx Amount is not expended as provided in Section 9.1(e)(vi) hereof, in which case, any deficiency in spending the Deferred CapEx Amount as required by Section 9(e)(vi) hereof shall be required to be deposited into the CapEx Reserve, with any amounts not spent being subject to the CapEx Grace Period.”
4.Deferred CapEx Amount. The following new Section 9.1(e)(vi) shall be added to the Lease immediately after Section 9.1(e)(v):
“(vi)During the CapEx Testing Period ending December 31, 2025, in addition to the Required CapEx for such CapEx Testing Period, Tenant is required to expend the Deferred CapEx Amount, if any, on Qualifying CapEx. Notwithstanding anything to the contrary contained herein, (x) any amount spent to satisfy the Deferred CapEx Amount shall not be included in the calculation of the amount of Required CapEx spent during any CapEx Testing Period and (y) any failure to satisfy the Deferred CapEx Amount shall have the same effect hereunder as a failure to satisfy Required CapEx (including without limitation, pursuant to Section 9.1(e) and Section 16.1(a)(xv)). For example, if the Deferred CapEx Amount is $50,000,000 and the amount of Required CapEx required to be spent during the CapEx Testing Period ending December 31, 2025 is $250,000,000, Tenant shall be required to expend $300,000,000 on Qualifying CapEx during the CapEx Testing Period ending December 31, 2025, with any amounts not spent during such period subject to the CapEx Grace Period.”
5.Reaffirmation of Guaranty. By executing this Amendment, Guarantor acknowledges and agrees that (x) Tenant’s obligations under the Lease have been modified by this Amendment and therefore Guarantor’s Obligations (as defined in the Guaranty) have been modified by this Amendment and (y) Guarantor’s Obligations expressly include all of Tenant’s obligations with respect to any Deferred CapEx Amount. Guarantor hereby reaffirms the Guaranty and Guarantor’s Obligations thereunder, as modified by this Amendment.
6.No Further Amendment. The Lease shall remain in full force and effect, unmodified, except as expressly set forth herein.
7.Governing Law. Section 41.5 of the Lease is hereby incorporated into this Amendment and shall be applicable thereto.
8.Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, and it shall not be necessary in making proof of this Amendment to produce or account for more than one such counterpart. Documents executed, scanned and transmitted electronically and electronic signatures shall be deemed original signatures for purposes of this Amendment and all matters related thereto, with such scanned and electronic signatures having the same legal effect as original signatures.
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IN WITNESS WHEREOF, this Amendment to Lease has been executed by Landlord and Tenant as of the date first written above.
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LANDLORD: |
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BCORE PARADISE LLC, |
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a Delaware limited liability company |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: |
Xxxxx Xxxxxxx |
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Title: |
Managing Director and Vice President |
IN WITNESS WHEREOF, this Amendment to Lease has been executed by Landlord and Tenant as of the date first written above.
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TENANT: |
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BELLAGIO, LLC, |
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a Nevada limited liability company |
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By: |
/s/ Xxxxxxx Xxxxxxxxxx |
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Name: |
Xxxxxxx Xxxxxxxxxx |
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Title: |
Assistant Secretary |
GUARANTOR EXECUTES THIS AMENDMENT SOLELY FOR PURPOSES OF THE ACKNOWLEDGEMENT AND REAFFIRMATION OF GUARANTY CONTAINED IN SECTION 5 HEREOF.
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GUARANTOR: |
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a Delaware corporation |
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By: |
/s/ Xxxxxxx Xxxxxxxxxx |
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Name: |
Xxxxxxx Xxxxxxxxxx |
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Title: |
SVP, Legal Counsel and Assistant Secretary |
