-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, KQI2ePwZlWFprKPJHAaNU/CJ+dvDndIDFZhcrqkn96665Eu1CI4me1ptUjS3ESdN Js4c00o1phhIWtlt6Qkyiw== 0001104659-07-036660.txt : 20070508 0001104659-07-036660.hdr.sgml : 20070508 20070507220008 ACCESSION NUMBER: 0001104659-07-036660 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 20070508 DATE AS OF CHANGE: 20070507 GROUP MEMBERS: BLAKE L. SARTINI GROUP MEMBERS: DELISE F. SARTINI GROUP MEMBERS: FERTITTA COLONY PARTNERS LLC GROUP MEMBERS: FERTITTA PARTNERS LLC GROUP MEMBERS: LORENZO J. FERTITTA SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: STATION CASINOS INC CENTRAL INDEX KEY: 0000898660 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-MISCELLANEOUS AMUSEMENT & RECREATION [7990] IRS NUMBER: 880136443 STATE OF INCORPORATION: NV FISCAL YEAR END: 0714 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-48915 FILM NUMBER: 07825650 BUSINESS ADDRESS: STREET 1: 2411 W SAHARA AVE CITY: LAS VEGAS STATE: NV ZIP: 89102 BUSINESS PHONE: 7023672411 MAIL ADDRESS: STREET 1: P.O. BOX 295000 CITY: LAS VEGAS STATE: NV ZIP: 89126 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: FERTITTA FRANK J III CENTRAL INDEX KEY: 0000941343 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] STATE OF INCORPORATION: NV FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: BUSINESS PHONE: 7023672411 MAIL ADDRESS: STREET 1: 2411 W SAHARA AVE CITY: LAS VEGAS STATE: NV ZIP: 89102 SC 13D/A 1 a07-13424_1sc13da.htm SC 13D/A

 

 

UNITED STATES

 

 

SECURITIES AND EXCHANGE
COMMISSION

 

 

Washington, D.C. 20549

 

 

SCHEDULE 13D

 

Under the Securities Exchange Act of 1934
(Amendment No. 1, 28, 29 and 30)*

STATION CASINOS, INC.

(Name of Issuer)

 

Common Stock, par value $0.01 per share

(Title of Class of Securities)

 

857689103

(CUSIP Number)

 

Frank J. Fertitta III

Chief Executive Officer

STATION CASINOS, INC.

2411 West Sahara Ave,

Las Vegas, Nevada 89102

(702) 367-2411

with a copy to:

Kenneth J. Baronsky, Esq.

Milbank, Tweed, Hadley & McCloy LLP

601 S. Figueroa Street, 30th Floor

Los Angeles, California 90017

(213) 892-4000

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

 

May 4, 2007

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 



 

CUSIP No.  857689103

 

 

1.

Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only)
Frank J. Fertitta, III

 

 

2.

Check the Appropriate Box if a Member of a Group (See Instructions)

 

 

(a)

 o

 

 

(b)

 x

 

 

3.

SEC Use Only

 

 

4.

Source of Funds (See Instructions)
OO

 

 

5.

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6.

Citizenship or Place of Organization
United States

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7.

Sole Voting Power
5,719,344

 

8.

Shared Voting Power
0

 

9.

Sole Dispositive Power
5,719,344

 

10.

Shared Dispositive Power
0

 

 

11.

Aggregate Amount Beneficially Owned by Each Reporting Person
15,341,955

 

 

12.

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   o

 

 

13.

Percent of Class Represented by Amount in Row (11)
26.8%

 

 

14.

Type of Reporting Person (See Instructions)
IN

 

1



 

CUSIP No.  857689103

 

 

1.

Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only)
Lorenzo J. Fertitta

 

 

2.

Check the Appropriate Box if a Member of a Group (See Instructions)

 

 

(a)

 o

 

 

(b)

 x

 

 

3.

SEC Use Only

 

 

4.

Source of Funds (See Instructions)
OO

 

 

5.

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6.

Citizenship or Place of Organization
United States

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7.

Sole Voting Power
5,734,694

 

8.

Shared Voting Power
0

 

9.

Sole Dispositive Power
5,734,694

 

10.

Shared Dispositive Power
0

 

 

11.

Aggregate Amount Beneficially Owned by Each Reporting Person
15,341,955

 

 

12.

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   o

 

 

13.

Percent of Class Represented by Amount in Row (11)
26.8%

 

 

14.

Type of Reporting Person (See Instructions)
IN

 

2



 

CUSIP No.  857689103

 

 

1.

Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only)
Blake L. Sartini

 

 

2.

Check the Appropriate Box if a Member of a Group (See Instructions)

 

 

(a)

 o

 

 

(b)

 x

 

 

3.

SEC Use Only

 

 

4.

Source of Funds (See Instructions)
OO

 

 

5.

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6.

Citizenship or Place of Organization
United States

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7.

Sole Voting Power
41,863

 

8.

Shared Voting Power
3,842,094

 

9.

Sole Dispositive Power
41,863

 

10.

Shared Dispositive Power
3,842,094

 

 

11.

Aggregate Amount Beneficially Owned by Each Reporting Person
15,341,955

 

 

12.

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   o

 

 

13.

Percent of Class Represented by Amount in Row (11)
26.8%

 

 

14.

Type of Reporting Person (See Instructions)
IN

 

3



 

CUSIP No.   857689103

 

 

1.

Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only)
Delise F. Sartini

 

 

2.

Check the Appropriate Box if a Member of a Group (See Instructions)

 

 

(a)

 o

 

 

(b)

 x

 

 

3.

SEC Use Only

 

 

4.

Source of Funds (See Instructions)
OO

 

 

5.

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6.

Citizenship or Place of Organization
United States

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7.

Sole Voting Power
3,960

 

8.

Shared Voting Power
3,842,094

 

9.

Sole Dispositive Power
3,960

 

10.

Shared Dispositive Power
3,842,094

 

 

11.

Aggregate Amount Beneficially Owned by Each Reporting Person
15,341,955

 

 

12.

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   o

 

 

13.

Percent of Class Represented by Amount in Row (11)
26.8%

 

 

14.

Type of Reporting Person (See Instructions)
IN

 

4



 

CUSIP No.  857689103

 

 

1.

Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only)
Fertitta Colony Partners LLC

 

 

2.

Check the Appropriate Box if a Member of a Group (See Instructions)

 

 

(a)

 o

 

 

(b)

 x

 

 

3.

SEC Use Only

 

 

4.

Source of Funds (See Instructions)
OO

 

 

5.

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6.

Citizenship or Place of Organization
United States

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7.

Sole Voting Power
0

 

8.

Shared Voting Power
15,341,955

 

9.

Sole Dispositive Power
0

 

10.

Shared Dispositive Power
0

 

 

11.

Aggregate Amount Beneficially Owned by Each Reporting Person
15,341,955

 

 

12.

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   o

 

 

13.

Percent of Class Represented by Amount in Row (11)
26.8%

 

 

14.

Type of Reporting Person (See Instructions)
OO

 

5



 

CUSIP No.  857689103

 

 

1.

Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only)
Fertitta Partners LLC

 

 

2.

Check the Appropriate Box if a Member of a Group (See Instructions)

 

 

(a)

 o

 

 

(b)

 x

 

 

3.

SEC Use Only

 

 

4.

Source of Funds (See Instructions)
OO

 

 

5.

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6.

Citizenship or Place of Organization
United States

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7.

Sole Voting Power
0

 

8.

Shared Voting Power
15,341,955

 

9.

Sole Dispositive Power
0

 

10.

Shared Dispositive Power
0

 

 

11.

Aggregate Amount Beneficially Owned by Each Reporting Person
15,341,955

 

 

12.

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   o

 

 

13.

Percent of Class Represented by Amount in Row (11)
26.8%

 

 

14.

Type of Reporting Person (See Instructions)
OO

 

6



 

SCHEDULE 13D

EXPLANATORY NOTES: This amendment to Schedule 13D (this “Schedule 13D”), among other things, amends and supplements (1) the Schedule 13D originally filed by Frank J. Fertitta III (“Mr. Frank Fertitta”) on June 10, 1993, and all amendments thereto (the “Frank Fertitta Schedule 13D”), (2) the Schedule 13D originally filed by Lorenzo J. Fertitta (“Mr. Lorenzo Fertitta”) on June 10, 1993, and all amendments thereto (the “Lorenzo Fertitta Schedule 13D”), (3) each of the Schedules 13D originally filed by Blake L. Sartini (“Mr. Sartini”) and Delise F. Sartini (“Mrs. Sartini”) on June 10, 1993, and all amendments thereto (collectively, the “Sartini Schedules 13D”) and (4) the Schedule 13D originally filed by Fertitta Colony Partners LLC, a Nevada limited liability company (“FCP”) on February 23, 2007 (the “FCP Schedule 13D”).  This Schedule 13D is also filed by Fertitta Partners LLC, a Nevada limited liability company (“Fertitta Partners”).  Each of Mr. Frank Fertitta, Mr. Lorenzo Fertitta, Mr. and Mrs. Sartini, FCP and Fertitta Partners is a Reporting Person hereunder (together, the “Reporting Persons”).  Except as provided herein, this Schedule 13D does not modify any of the information previously reported on the Frank Fertitta Schedule 13D, the Lorenzo Fertitta Schedule 13D, the Sartini Schedules 13D or the FCP Schedule 13D or any amendment thereto.  Capitalized terms used but not defined in this Schedule 13D shall have the meanings ascribed thereto in the Frank Fertitta Schedule 13D, the Lorenzo Fertitta Schedule 13D, the Sartini Schedules 13D or the FCP Schedule 13D.

Item 1.

Security and Issuer

The class of equity securities to which this Schedule 13D relates is the Common Stock, par value $0.01 per share (the “Station Common Stock”), of Station Casinos, Inc., a Nevada corporation (“Station” or “Issuer”).  The principal executive offices of the Issuer are located at 2411 West Sahara Avenue, Las Vegas, Nevada 89102.

 

 

Item 2.

Identity and Background

(a) (c)  This Schedule 13D is being filed jointly on behalf of Mr. Frank Fertitta, Mr. Lorenzo Fertitta, Mr. Sartini, Mrs. Sartini, FCP and Fertitta Partners.  A Joint Filing Agreement among the Reporting Persons is attached hereto as Exhibit 7.01.  Each of FCP and Fertitta Partners is a limited liability company that was formed for the purpose of engaging in the transaction described in Item 4 below.  The Members of FCP are Mr. Frank Fertitta, Mr. Lorenzo Fertitta and FC Investor, LLC (“FC Investor”).  The Members of Fertitta Partners are Mr. Frank Fertitta and Mr. Lorenzo Fertitta.

The business address of each of Mr. Frank Fertitta and Mr. Lorenzo Fertitta is 2411 West Sahara Avenue, Las Vegas, Nevada 89102.  The business address of each of FCP and Fertitta Partners is 2960 West Sahara Avenue, Suite 200, Las Vegas, Nevada 89102.  The business address of Mr. Sartini is 6595 South Jones Boulevard, Las Vegas, Nevada  89118.  Paragraph (b) of Item 2 does not apply to Mrs. Sartini.  The business address of FC Investor, Colony Acquisitions, Colony Capital and each of the managing member and officers of Colony Capital is 1999 Avenues of the Stars, Suite 1200, Los Angeles, California 90067.

The present principal occupation of Mr. Frank Fertitta is Chief Executive Officer and Chairman of the Board of Directors of the Issuer.  The present principal occupation of Mr. Lorenzo Fertitta is President and Vice Chairman of the Board of Directors of the Issuer.  The present principal occupation of Mr. Sartini is Chief Executive Officer of Golden Gaming, Inc.  Paragraph (c) of Item 2 does not apply to Mrs. Sartini.

Colony Capital Acquisitions, LLC, a Delaware limited liability company (“Colony Acquisitions”), is the sole member of FC Investor.  The managing member of Colony Acquisitions is Colony Capital, LLC, a Delaware limited liability company (“Colony Capital”).  The managing member and officers of Colony Capital are as follows:

Thomas J. Barrack, Jr. — Sole Managing Member and Chief Executive Officer

Richard B. Saltzman — President

Jonathan H. Grunzweig — Senior Vice President

Mark M. Hedstrom — Senior Vice President, Secretary and Treasurer

Joy Mallory — Assistant Secretary

 

 

7



 

FC Investor was formed for the purpose of engaging in the transaction described in Item 4 below.  The principal business of Colony Capital and Colony Acquisitions is to provide investment advice and management services to institutional and individual investors.

(d) and (e) During the last five years, none of the Reporting Persons, nor, to the best knowledge of FCP and Fertitta Partners any of their respective members or controlling persons of their respective members, has been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

(f) The Reporting Persons and each of the managing member and officers of Colony Capital are all United States citizens.

This Item 2 shall be deemed to amend and restate Item 2 of each of the Frank Fertitta Schedule 13D, the Lorenzo Fertitta Schedule 13D, the Sartini Schedules 13D and the FCP Schedule 13D in their entirety.

 

 

Item 3.

Source and Amount of Funds or Other Consideration

Item 3 is hereby supplemented as follows:

As previously disclosed, the Reporting Persons entered into separate Rollover Equity Commitment Letters, dated as of February 23, 2007 (the “Rollover Equity Commitment Letters”), pursuant to which Mr. Frank Fertitta, Mr. Lorenzo Fertitta and Mr. and Mrs. Sartini agreed, subject to certain conditions, to contribute up to approximately 4.0 million, 4.0 million and 1.7 million shares of Station Common Stock, respectively, to FCP (the “Rollover Shares”). 

On May 4, 2007, FCP and Fertitta Partners entered into an Assignment and Assumption Agreement (the “Assignment Agreement”) dated as of May 4, 2007, pursuant to which FCP assigned all of its rights and obligations under the Rollover Equity Commitment Letters to Fertitta Partners.  The effect of the Assignment Agreement is that Mr. Frank Fertitta, Mr. Lorenzo Fertitta and Mr. and Mrs. Sartini have agreed to contribute the Rollover Shares to Fertitta Partners.  This summary of the Assignment Agreement does not purport to be complete and is qualified in its entirety by reference to the Assignment Agreement, which is attached hereto as Exhibit 7.21 and incorporated by reference in its entirety into this Item 3.

In addition, FCP entered into Second Amended and Restated Debt Commitment Letters with Deutsche Bank Trust Company Americas and Deutsche Bank Securities, Inc. (the “Revolver Debt Commitment Letter”) and JPMorgan Chase Bank, N.A. and German American Capital Corporation and Deutsche Bank AF, New York (the “CMBS Debt Commitment Letter”) (collectively, the “Lenders”), dated as of May 3, 2007 (the “Revolver Debt Commitment Letter” together with the “CMBS Debt Commitment Letter,” the “Debt Commitment Letters”).  The Debt Commitment Letters are attached hereto as Exhibits 7.22 and 7.23 and incorporated by reference in their entirety into this Item 3.

The information set forth in this Item 3 shall be deemed to supplement Item 3 of each of the Frank Fertitta Schedule 13D, the Lorenzo Fertitta Schedule 13D, the Sartini Schedules 13D and the FCP Schedule 13D.

 

 

Item 4.

Purpose of Transaction

Item 4 is hereby supplemented as follows:

As previously disclosed, on February 23, 2007, FCP, FCP Acquisition Sub, a Nevada corporation and a wholly-owned subsidiary of FCP (“Merger Sub”), and the Issuer entered into an Agreement and Plan of Merger, dated as of February 23, 2007 (the “Merger Agreement”), pursuant to which Merger Sub will be merged with and into the Issuer and as a result the Issuer will continue as the surviving corporation (the “Surviving Corporation”) and as a direct or indirect wholly-owned subsidiary of FCP.

On May 4, 2007, FCP, Merger Sub and the Issuer entered into an Amendment to Agreement and Plan of Merger, dated as of May 4, 2007 (the “Merger Agreement Amendment”), pursuant to which the Merger Agreement was amended to (i) permit the assignment by FCP of the Rollover Commitments to Fertitta Partners and (ii) to reflect

 

8



 

revisions to the proposed ownership structure of the Surviving Corporation so that, following the consummation of the Merger, the non-voting shares of common stock of the Surviving Corporation will be owned by Fertitta Partners and FCP’s wholly-owned subsidiary FCP Holding, Inc., a Nevada corporation, and the voting shares of common stock of the Surviving Corporation will be owned by FCP VoteCo LLC, a Nevada limited liability company (“FCP VoteCo LLC”).  The foregoing summary of the Merger Agreement Amendment does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement Amendment, which is attached hereto as Exhibit 7.20 and incorporated by reference in its entirety into this Item 4.

The purpose of the transactions contemplated by the Merger Agreement (the “Transactions”) is to acquire all of the outstanding Station Common Stock (other than Rollover Shares).  If the Transactions are consummated, the Station Common Stock will be delisted from the New York Stock Exchange.  The Surviving Corporation will, however, continue to file periodic reports with the Securities and Exchange Commission, because the voting common stock of the Surviving Corporation will be registered pursuant to Section 12 of the Securities Exchange Act of 1934, as amended, and such reports may be required by indentures governing the outstanding indebtedness of the Surviving Corporation or applicable law.

The information set forth in this Item 4 shall be deemed to supplement Item 4 of each of the Frank Fertitta Schedule 13D, the Lorenzo Fertitta Schedule 13D, the Sartini Schedules 13D and the FCP Schedule 13D.

 

 

Item 5.

Interest in Securities of the Issuer

(a) and (b) The respective percentages set forth below are based on 57,283,914 shares of Station Common Stock outstanding as of March 31, 2007.

Mr. Frank Fertitta has direct beneficial ownership of 5,719,344 shares of Station Common Stock representing approximately 10.0% of the outstanding Station Common Stock.

Mr. Lorenzo Fertitta has direct beneficial ownership of 5,734,694 shares of Station Common Stock representing approximately 10.0% of the outstanding Station Common Stock.

Mr. Sartini has direct beneficial ownership of 3,883,957 shares of Station Common Stock representing approximately 6.8% of the outstanding Station Common Stock.

Mrs. Sartini has direct beneficial ownership of 3,846,054 shares of Station Common Stock representing approximately 6.7% of the outstanding Station Common Stock.

By virtue of the Voting Agreement described in Item 4 above, FCP may be deemed to beneficially own an aggregate of 15,341,955 shares of Station Common Stock representing approximately 26.8% of the outstanding Station Common Stock.

The Cover Pages of this Schedule 13D are incorporated herein by reference.

By virtue of the relationships among the Reporting Persons described herein, the Reporting Persons may be deemed to constitute a “group” within the meaning of Rule 13d-5(b) under the Securities and Exchange Act of 1934, as amended (the “Exchange Act”).  As a member of a group, each Reporting Person may be deemed to beneficially own the Station Common Stock beneficially owned by the members of the group as a whole.  As of May 7, 2007, the Reporting Persons beneficially owned in the aggregate 15,341,955 shares of Station Common Stock, which represents approximately 26.8% of the outstanding Station Common Stock.

In addition, as a result of the transaction described in Item 4 above, the Reporting Persons and affiliates of FC Investor may be deemed to constitute a “group” within the meaning of Section 13(d)-5(b) of the Exchange Act.  The Reporting Persons disclaim beneficial ownership of any Station Common Stock that may be owned by FC Investor or its affiliates.

(c) Except as set forth herein, none of the Filing Persons has effected any transactions in Station Common Stock in the past 60 days. 

(d) Not applicable.

 

9



 

(e) Not applicable.

This Item 5 shall be deemed to amend and restate Item 5 of each of the Frank Fertitta Schedule 13D, the Lorenzo Fertitta Schedule 13D, the Sartini Schedules 13D and the FCP Schedule 13D in its entirety.

 

 

Item 6.

Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

Items 3 and 4 of this Schedule 13D are incorporated herein by reference in its entirety into this Item 6.

 

 

Item 7.

Material to Be Filed as Exhibits

Exhibit 7.01

Joint Filing Agreement by and among Mr. Frank Fertitta, Mr. Lorenzo J. Fertitta, Mr. and Mrs. Sartini, FCP and Fertitta Partners, dated as of May 4, 2007.

Exhibit 7.20

Amendment to Agreement and Plan of Merger by and among Issuer, FCP and Merger Sub, dated as of May 4, 2007.

Exhibit 7.21

Assignment and Assumption Agreement, dated May 4, 2007, from FCP to Fertitta Partners and agreed to and acknowledged by Mr. Frank Fertitta, Mr. Lorenzo Fertitta and Mr. and Mrs. Sartini.

Exhibit 7.22

Second Amended and Restated Revolver Debt Commitment Letter, dated May 3, 2007, from Deutsche Bank Trust Company Americas and Deutsche Bank Securities, Inc. to FCP.

Exhibit 7.23

Second Amended and Restated CMBS Debt Commitment Letter, dated May 3, 2007, from JPMorgan Chase Bank, N.A., German American Capital Corporation and Deutsche Bank AG, New York to FCP.

 

10



SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Date:  May 4, 2007

 

 

 

 

 

 

By:

/s/ Frank J. Fertitta, III

 

 

 

Name: Frank J. Fertitta, III

 

11



SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Date:  May 4, 2007

 

 

 

 

 

 

By:

/s/ Lorenzo J. Fertitta

 

 

 

Name: Lorenzo J. Fertitta

 

12



SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Date:  May 4, 2007

 

 

 

 

 

 

By:

/s/ Blake L. Sartini

 

 

 

Name: Blake L. Sartini

 

13



SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Date:  May 4, 2007

 

 

 

 

 

 

By:

/s/ Delise F. Sartini

 

 

 

Name: Delise F. Sartini

 

14



SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Date:  May 4, 2007

 

 

 

 

 

 

FERTITTA COLONY PARTNERS LLC

 

 

 

By:

/s/ Frank J. Fertitta, III

 

 

 

Name: Frank J. Fertitta, III

 

 

Title:  Authorized Member

 

15



SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Date:  May 4, 2007

 

 

 

 

 

 

FERTITTA PARTNERS LLC

 

 

 

 

By:

/s/ Frank J. Fertitta, III

 

 

 

Name: Frank J. Fertitta, III

 

 

Title: Authorized Member

 

16


 EX-7.01 2 a07-13424_1ex7d01.htm EX-7.01

Exhibit 7.01

JOINT FILING AGREEMENT

This Agreement is made this 4th day of May, 2007, by and among each of the undersigned.

WHEREAS, each of the undersigned is required to file an amendment to Schedule 13D with respect to ownership of securities in Station Casinos, Inc.;

NOW, THEREFORE, the undersigned agree to file only one amendment to Schedule 13D reflecting their combined beneficial ownership of securities in Station Casinos, Inc., and each of the undersigned hereby designates and appoints the other as his attorney-in-fact with full power of substitution for each of them, each acting singly, to sign, file and make any further amendments to such Schedule 13D.

This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument.

[Signature Pages Follow]



IN WITNESS WHEREOF, each of the undersigned has executed this Joint Filing Agreement as of the date first written above.

 

By:

/s/ Frank J. Fertitta, III

 

 

 

Name: Frank J. Fertitta, III

 

 

 

 

 

 

 

By:

/s/ Lorenzo J. Fertitta

 

 

 

Name: Lorenzo J. Fertitta

 

 

 

 

 

 

 

By:

/s/ Blake L. Sartini

 

 

 

Name: Blake L. Sartini

 

 

 

 

 

 

 

By:

/s/ Delise F. Sartini

 

 

 

Name: Delise F. Sartini

 

 

 

 

 

 

 

FERTITTA COLONY PARTNERS LLC

 

 

 

 

 

 

 

By:

/s/ Frank J. Fertitta, III

 

 

 

Name: Frank J. Fertitta, III

 

 

Title:  Authorized Member

 

 

 

 

 

 

 

FERTITTA PARTNERS LLC

 

 

 

 

 

 

 

By:

/s/ Frank J. Fertitta, III

 

 

 

Name: Frank J. Fertitta, III

 

 

Title:  Authorized Member

 


 EX-7.20 3 a07-13424_1ex7d20.htm EX-7.20

Exhibit 7.20

AMENDMENT TO AGREEMENT
AND PLAN OF MERGER

This AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this “Amendment”) is entered into as of this 4th day of May 2007, by and among Station Casinos, Inc., a Nevada corporation, Fertitta Colony Partners LLC, a Nevada limited liability company (“Parent”), and FCP Acquisition Sub, a Nevada corporation and wholly-owned subsidiary of Parent (“Merger Sub”).

RECITALS

A.            The parties hereto entered into that certain Agreement and Plan of Merger dated as of February 23, 2007 (the “Merger Agreement”). Capitalized terms used herein without definitions shall have the meanings ascribed thereto in the Merger Agreement.

B.            The Merger Agreement contemplates that, upon the terms and conditions set forth therein, Merger Sub will merge with and into the Company with the Company surviving the Merger as a wholly-owned subsidiary of Parent.

C.            The Merger Agreement further contemplates that certain existing stockholders of the Company will contribute Shares to Parent immediately prior to the Effective Time in exchange for equity interests in Parent.

D.            Parent and the Contributing Stockholders desire to revise the proposed ownership structure of the Surviving Corporation so that, following the consummation of the Merger, the non-voting securities of the Surviving Corporation will be owned by Fertitta Partners LLC, a newly-formed Nevada limited liability company owned by Affiliates of the Contributing Stockholders (“Fertitta Partners”), and a newly-created wholly-owned subsidiary of Parent (“Parent HoldCo”).

E.             To facilitate the receipt of the Gaming Approvals, it is contemplated that the Surviving Corporation will issue non-voting shares of common stock in the Merger to Fertitta Partners and Parent Holdco and, substantially simultaneously with the consummation of the Merger for nominal consideration, voting shares of common stock to FCP VoteCo LLC, a Nevada limited liability company (“FCP VoteCo”).

F.             In connection with the proposed changes to the ownership structure, Parent desires to assign its rights under the Equity Rollover Commitment to Fertitta Partners.

G.            Section 10.4 of the Merger Agreement provides that the parties, by action by or on behalf of their respective boards of directors, may amend the Merger Agreement by an instrument in writing signed by each of the parties.

H.            The parties desire to amend the Merger Agreement, as more fully set forth herein, to (i) permit the assignment of the Equity Rollover Commitment to Fertitta Partners and the amendments of the Debt Financing Commitments and (ii) reflect that the non-voting shares of common stock of the Surviving Corporation will be owned by Fertitta Partners and Parent Holdco and that the voting shares of common stock of the Surviving Corporation will be owned by FCP VoteCo.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing and the representations warranties and covenants contained herein, the parties hereto agree as follows:

1.             References.   Each reference to “hereof,” “hereunder,” “hereby,” and “this Agreement” contained in the Merger Agreement shall, from and after the date of this Amendment, refer to the Merger Agreement, as amended by this Amendment. Each reference herein to “the date of this Amendment” shall refer to the date set forth above, and each reference to the “date of this Agreement” contained in the Merger Agreement or similar references shall refer to February 23, 2007.

2.             Amendments.

(a)           Section 1.1 of the Merger Agreement is hereby amended as follows:

“FCP VoteCo” means FCP VoteCo LLC, a Nevada limited liability company.

“Fertitta Partners” means that newly formed Nevada limited liability company owned by Affiliates of the Contributing Stockholders.

“First Amendment” means that certain Amendment to Agreement and Plan of Merger, dated as of May 4, 2007, by and among the Company, Parent and Merger Sub.

“Parent HoldCo” means that newly-created wholly-owned subsidiary of Parent.

(b)           Section 2.1(a) of the Merger Agreement is hereby amended and restated to read in its entirety as follows:

“At the Effective Time, in accordance with the Nevada Revised Statutes (the “NRS”), and upon the terms and subject to the conditions set forth in this Agreement, Merger Sub shall be merged with and into the Company, at which time the separate existence of Merger Sub shall cease and the Company shall survive the Merger.”

(c)           Section 2.2(a) of the Merger Agreement is hereby amended and restated to read in its entirety as follows:

“(a)   Each Share held by the Company as treasury stock or otherwise owned by Parent, Parent HoldCo, Merger Sub or any wholly-owned Subsidiary of the Company immediately prior to the Effective Time (including Shares acquired by Parent immediately prior to the Effective Time), if any, shall be canceled and retired and shall cease to exist, and no payment or distribution shall be made or delivered with respect thereto.”

(d)           Section 2.2(b) of the Merger Agreement is hereby amended and restated to read in its entirety as follows:

“(b)   Each Merger Sub Share issued and outstanding immediately prior to the Effective Time and each Share owned by Fertitta Partners immediately prior to the Effective Time shall be converted into and become one newly issued, fully paid and non-assessable share of non-voting common stock of the Surviving Corporation.”

(e)           Section 2.2(g) of the Merger Agreement is hereby amended and restated to read in its entirety as follows:

“(g)   For the avoidance of doubt, the parties acknowledge and agree that the contribution or sale of Shares (including Company Restricted Shares, if any) to Parent or Fertitta Partners by the Contributing Stockholders shall be deemed to occur immediately prior to the Effective Time and prior to any other above-described event and shall not be converted into the right to receive the Merger Consideration.”

3.             Representations and Warranties of the Company.

The Company hereby represents and warrants to Parent and Merger Sub that:

(a)           The Company has full corporate power and authority to execute and deliver this Amendment and, subject to receipt of the Requisite Stockholder Vote,  to perform its obligations hereunder. The execution, delivery and performance by the Company of this Amendment have been duly and validly authorized by the Board of Directors of the Company.

(b)           This Amendment has been duly and validly executed and delivered by the Company and, assuming the due and valid authorization, execution and delivery of this Amendment by Parent and Merger Sub, this Amendment constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the enforcement of creditors’ rights generally and general equitable principles.

4.             Representations of Parent and Merger Sub.   Parent and Merger Sub jointly and severally hereby represent and warrant to the Company that:

(a)           Parent has all limited liability company power and authority, and Merger Sub has all corporate power and authority, required to execute and deliver this Amendment and to consummate the Merger and the other transactions contemplated hereby and to perform each of its obligations hereunder.

(b)           The execution, delivery and performance by Parent and Merger Sub of this Amendment and the consummation by Parent and Merger Sub of the Merger and the other transactions contemplated by the Merger Agreement, as amended by this Amendment, have been duly and validly authorized by the Board of Directors of Parent and Merger Sub. No other corporate proceedings other than those previously taken or conducted on the part of Parent or Merger Sub are necessary to approve this Amendment. This Amendment has been duly and validly executed and delivered by Parent and Merger Sub and, assuming the due and valid execution and delivery of this Amendment by the Company, this Amendment constitutes a legal, valid and binding agreement of Parent and Merger Sub, respectively, enforceable against Parent and Merger Sub in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the enforcement of creditors’ rights generally and general equitable principles.

(c)           Parent has delivered to the Company true and complete copies of the Assignment of Equity Rollover Commitments, dated as of even date herewith, between Parent and Fertitta Partners (the “Equity Rollover Assignment”), pursuant to which Parent has assigned its rights under the Equity Rollover Commitments to Fertitta Partners.

(d)           Parent has delivered to the Company true and complete copies of the amended and restated Debt Financing Commitments dated as of even date herewith (collectively, the “Amended and Restated Debt Financing Commitments”). Each of the representations and warranties contained in Section 5.7 of the Merger Agreement is true and accurate as if made anew as of the date of this Amendment.

5.             Financing Commitments.   The Company hereby consents to the amendment of the Debt Financing Commitments pursuant to the Amended and Restated Debt Financing Commitments and the assignment of the Equity Rollover Commitments pursuant to the Equity Rollover Assignment. From and after the date hereof, the term “Debt Financing Commitments” as used in the Merger Agreement shall be deemed to refer to the Amended and Restated Debt Financing Commitments.

6.             Miscellaneous.

(a)           Except as expressly amended hereby, the Merger Agreement is in all respects ratified and confirmed and all of the terms and conditions and provisions thereof shall remain in full force and effect and shall not be amended, modified, waived, impaired or otherwise affected hereby.

(b)           The provisions of this Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, provided that no party may assign, delegate or otherwise transfer any of its rights or obligations under this Amendment without the consent of the other parties hereto (and any purported assignment without such consent shall be void and without effect), except that Parent may assign all or any of its rights and obligations hereunder to any direct or indirect wholly-owned Subsidiary of Parent; provided, however, that no such assignment shall relieve the assigning party of its obligations hereunder.

(c)           This Amendment shall be governed by and construed in accordance with the laws of the State of Nevada, without regard to conflicts of laws principles thereof.

(d)           This Amendment may be executed by facsimile signatures and in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Amendment shall become effective only when actually signed by each party hereto and each such party has received counterparts hereof signed by all of the other parties hereto.

[SIGNATURE PAGE FOLLOWS]

1



IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized signatories as of the day and year first written above.

STATION CASINOS, INC.

 

By:

/s/ James E. Nave, D.V.M.

 

Name:

James E. Nave, D.V.M.

 

Title:

Chairman of the Special Committee

 

FERTITTA COLONY PARTNERS LLC

 

By:

/s/ Frank J. Fertitta, III

 

Name:

Frank J. Fertitta, III

 

Title:

Authorized Member

 

FCP ACQUISITION SUB

 

By:

/s/ Frank J. Fertitta, III

 

Name:

Frank J. Fertitta, III

 

Title:

President

 

2


 EX-7.21 4 a07-13424_1ex7d21.htm EX-7.21

Exhibit 7.21

 

ASSIGNMENT AND ASSUMPTION AGREEMENT

THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”) is made and entered into this 4th day of May, 2007 by and between Fertitta Colony Partners LLC, a Nevada limited liability company (“Assignor”), and Fertitta Partners LLC, a Nevada limited liability company (“Assignee”), and is agreed to and acknowledged by Frank J. Fertitta III, Lorenzo J. Fertitta, BLS Family Investments, LLC, a Nevada limited liability company, and The Blake L. Sartini and Delise F. Sartini Family Trust (collectively, the “Contributing Stockholders”).

RECITALS

A.            Station Casinos, Inc., a Nevada corporation (the “Company”), Assignor, and FCP Acquisition Sub, a Nevada corporation and wholly-owned subsidiary of Assignor (“Merger Sub”) entered into that certain Agreement and Plan of Merger dated as of February 23, 2007 (the “Merger Agreement”).  Capitalized terms used herein without definitions shall have the meanings ascribed thereto in the Merger Agreement.

B.            Pursuant to the Merger Agreement, Assignor delivered to the Company true and complete copies of the Equity Rollover Commitments, dated as of February 23, 2007, from the Contributing Stockholders, pursuant to which such parties have committed to contribute to Assignor that number of Shares set forth in such letters for shares of capital stock of Assignor immediately prior to the Effective Time.

C.            Assignor and the Contributing Stockholders have determined to revise the proposed ownership structure of the Surviving Corporation, and, in connection with such proposed changes, are amending the Merger Agreement pursuant to that certain Amendment to Agreement and Plan of Merger by and among the Company, Assignor and Merger Sub, dated as of the date hereof (the “Merger Agreement Amendment”), in order to, among other things, permit the assignment of the Equity Rollover Commitments to Assignee.

D.            In connection with the Merger Agreement Amendment, Assignor now desires to assign its rights under the Equity Rollover Commitments to Assignee, and Assignee desires to accept such assignment, all subject to the terms and conditions hereof.

AGREEMENT

NOW THEREFORE, in consideration of the above premises, as well as other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:

1.             Assignment.  As of the date hereof, Assignor hereby irrevocably grants, conveys, transfers, assigns, and delivers unto Assignee and its successors and assigns, all of Assignor’s rights, title and interest in and to the Equity Rollover Commitments.  As of the date hereof, Assignor hereby irrevocably delegates, without recourse to Assignor, any and all of Assignor’s duties, obligations, responsibilities, claims, demands and other commitments in connection with the Equity Rollover Commitments unto Assignee.



 

2.             Assumption.  As of the Effective Date, Assignee hereby irrevocably assumes and accepts responsibility to faithfully and punctually perform, satisfy and discharge all of the duties, obligations, terms, conditions, covenants and liabilities of Assignor under the Equity Rollover Commitments.

3.             Representations and Warranties of Assignor.  Assignor hereby represents and warrants to Assignee as follows:

(a)           Assignor is duly organized and validly existing under the laws of the State of Nevada and is in good standing under such laws.

(b)           Assignor has full corporate power and authority to execute, deliver and perform its obligations under this Agreement and to assign and transfer all of its rights and obligations under the Equity Rollover Commitments as contemplated by this Agreement.

(c)           This Agreement has been duly and validly executed and is a valid and binding obligation of Assignor enforceable against Assignor in accordance with its terms, except as may be limited by any bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights generally or by general principles or equity.

(d)           The rights and obligations assigned by Assignor pursuant to this Agreement are not subject to any prior transfer, conveyance or assignment by Assignor or any agreement to assign, convey or transfer, in whole or in part.

4.             Representations and Warranties of Assignee.  Assignee hereby represents and warrants to Assignor as follows:

(a)           Assignee is duly organized and validly existing under the laws of the State of Nevada and is in good standing under such laws.

(b)           Assignee has full corporate power and authority to execute, deliver and perform its obligations under this Agreement and to assume all of Assignor’s rights and obligations under the Equity Rollover Commitments as contemplated by this Agreement.

(c)           This Agreement has been duly and validly executed and is a valid and binding obligation of Assignee enforceable against Assignee in accordance with its terms, except as may be limited by any bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights generally or by general principles or equity.

5.             Further Action.  Assignor and Assignee agree that each shall execute and deliver, or cause to be executed and delivered from time to time, such instruments, documents, agreements, consents and assurances and take such other action as the other party reasonably may require to more effectively assign and transfer to and vest in such party the rights and obligations assigned hereunder.

2



 

6.             Miscellaneous.

(a)           Except as amended hereby, the provisions of the Equity Rollover Commitments shall remain in full force and effect and shall not be amended, modified, waived, impaired or otherwise affected hereby.

(b)           This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without regard to conflicts of laws principles thereof.

(c)           This Agreement may be executed by facsimile signatures and in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.  This Amendment shall become effective only when actually signed by each party hereto and each such party has received counterparts hereof signed by all of the other parties hereto.

(d)           Assignor and Assignee acknowledge and agree that the Company shall be an express third party beneficiary of this Agreement, and shall have the right to enforce any such terms and conditions hereof in such capacity.

 

3



 

IN WITNESS WHEREOF, the parties hereto have each caused this Assignment and Assumption Agreement to be duly executed as of the day and year first above written.

 

ASSIGNOR:

 

 

 

 

 

 

 

FERTITTA COLONY PARTNERS LLC, a Nevada limited liability company

 

 

 

 

 

 

 

 

 

 

 

 

By:

 

/s/ Frank J. Fertitta III

 

 

 

 

Name:

Frank J. Fertitta III

 

 

 

 

Title:

Authorized Member

 

 

 

 

 

 

 

 

 

 

 

 

ASSIGNEE:

 

 

 

 

 

 

 

FERTITTA PARTNERS LLC, a Nevada limited liability company

 

 

 

 

 

 

 

 

 

 

 

 

By:

 

/s/ Frank J. Fertitta III

 

 

 

 

Name:

Frank J. Fertitta III

 

 

 

 

Title:

Authorized Member

 



 

Agreed and Accepted, this 4th day of May, 2007

By:

 

/s/ Frank J. Fertitta

 

 

 

 

Frank J. Fertitta, III

 

 

 

 

 

 

 

 

 

 

 

 

By:

 

/s/ Lorenzo J. Fertitta

 

 

 

 

Lorenzo J. Fertitta

 

 

 

 

 

 

 

 

 

 

 

 

BLS Family Investments, LLC, a Nevada limited liability company

 

 

 

 

 

/s/ Blake L. Sartini

 

 

By:

 

Blake L. Sartini, Manager

 

 

 

 

 

 

 

/s/ Delise F. Sartini

 

 

By:

 

Delise F. Sartini, Manager

 

 

 

 

 

 

 

 

 

 

 

 

The Blake L. Sartini and Delise F. Sartini Family Trust

 

 

 

 

 

 

 

/s/ Blake L. Sartini

 

 

By:

 

Blake L. Sartini, Trustee

 

 

 

 

 

 

 

/s/ Delise F. Sartini

 

 

By:

 

Delise F. Sartini, Trustee

 

 

 


 EX-7.22 5 a07-13424_1ex7d22.htm EX-7.22

Exhibit 7.22

DEUTSCHE BANK SECURITIES INC.
60 Wall Street
New York, New York 10005

 

J.P. MORGAN SECURITIES INC.
270 Park Avenue
New York, New York 10017

 

 

 

DEUTSCHE BANK TRUST COMPANY AMERICAS
60 Wall Street
New York, New York 10005

 

JPMORGAN CHASE BANK, N.A.
270 Park Avenue
New York, New York 10017

 

May 3, 2007

Fertitta Colony Partners LLC
2960 West Sahara Avenue
Las Vegas, NV 89102

Re:  Acquisition Financing — Second Amended and Restated Financing Commitment Letter

Ladies and Gentlemen:

You have informed Deutsche Bank Securities Inc. (“DBSI”), Deutsche Bank Trust Company Americas (“DBTCA”), J.P. Morgan Securities Inc. (“JPMorgan”) and JPMorgan Chase Bank, N.A. (“JPMCB”, and together with DBSI, DBTCA and JPMorgan, the “Commitment Parties”) that one or more affiliates of Colony Capital, LLC (collectively, “Colony”), Mr. Frank J. Fertitta III and his personal investment vehicles (collectively, “Frank Fertitta”) and Mr. Lorenzo J. Fertitta and his personal investment vehicles (collectively, “Lorenzo Fertitta” and together with Colony and Frank Fertitta, the “Principal Investors”), together with other co-investors that are reasonably acceptable to the Commitment Parties prior to the Closing Date (defined below) and their respective affiliates (collectively, the “Sponsors”) and other members of the management team of Station Casinos, Inc. (the “Target” or “Borrower”) and other persons reasonably acceptable to the Commitment Parties (collectively, the “Management Investors” and, together with the Sponsors, the “Equity Investors”) have caused the  formation of  Fertitta Colony Partners LLC, a newly formed limited liability company (“Sponsor LLC”).  Sponsor LLC will be the parent of a new Nevada corporation (“Sponsor Holdco”) which would (i) acquire, through  a newly formed Nevada corporation wholly-owned by Sponsor Holdco (“Sponsor Merger Sub”), approximately 75% of the non-voting common stock of the Target, by way of a merger of Sponsor Merger Sub with and into the Target (the “Acquisition” or the “Merger”) and (ii) concurrently with the consummation of the Acquisition, refinance (the “Refinancing”) the existing senior secured revolving credit facility of the Target and its subsidiaries, provided that Sponsor LLC may instead own Merger Sub directly (rather than indirectly through Sponsor Holdco).  In connection with the Merger, Frank Fertitta, Lorenzo Fertitta, Blake and Delise Sartini and the Management Investors will cause the formation of Fertitta Partners LLC (“Fertitta Partners”), a newly formed Nevada limited liability company to which Frank Fertitta, Lorenzo Fertitta and Blake and Delise Sartini will contribute a portion of the shares of common stock of Target held by such parties.  Following the consummation of the Merger, Fertitta Partners will own approximately 25% of the non-voting common stock of the Target.  Immediately following the consummation of the Merger, FCP VoteCo, LLC, a newly formed Nevada limited liability company that will be owned by Frank Fertitta, Lorenzo Fertitta and Thomas J. Barrack, Jr. (“FCP VoteCo”), will purchase for nominal consideration shares of voting common stock of the Target which will have limited economic rights.



 

In order to effect the Acquisition, the Refinancing, to pay all fees and expenses incurred in connection with the Transaction (as defined below) and to provide for the working capital needs and general corporate requirements of the Borrower and its subsidiaries after giving effect to the Acquisition, you have advised us that you intend to implement the following transactions:  (i) the contribution of equity to Sponsor Holdco and Fertitta Partners by the Equity Investors in an aggregate amount equal to at least 32.5% of the consideration payable under the Acquisition Agreement defined below (a portion of which in an amount to be agreed may be in the form of rollover equity provided by Frank Fertitta, Lorenzo Fertitta and certain other Sponsors and/or Management Investors) (the “Equity Financing”) or such additional amount as the Equity Investors shall elect to contribute in their sole discretion, (ii) the procurement by the Borrower of senior secured revolving credit facilities in the aggregate amount of $500.0 million (the “Revolving Credit Facility”) and (iii) the procurement by a subsidiary of Sponsor Holdco of a first lien mortgage loan and mezzanine financing in the aggregate amount of $2,725.0 million (collectively, the “CMBS Loan”).

The transactions described in clauses (i) through (iii) above, as more fully described in the Term Sheet (as defined below), are collectively referred to herein as the “Financing Transactions.”  The Financing Transactions, the Refinancing and the Acquisition are collectively referred to herein as the “Transaction.”  All funds required to finance the Acquisition and Refinancing, and to pay all fees and expenses incurred in connection with the Transaction, shall be provided pursuant to the Financing Transactions.

A summary of the principal terms and the conditions of the Revolving Credit Facility is set forth in Exhibit A attached hereto (the “Term Sheet”).  A summary of the conditions precedent to the Revolving Credit Facility is set forth in Exhibit B attached hereto.

Each of DBTCA and JPMCB is pleased to confirm that, subject to the terms and conditions set forth herein and in the Term Sheets, it hereby severally commits to provide 62.5% and 37.5%, respectively, of the Revolving Credit Facility.  It is agreed that (i) DBTCA will act as sole Administrative Agent (in such capacity, the “Administrative Agent”) for a syndicate of banks, financial institutions and other institutional lenders reasonably satisfactory to you who will participate in each of the Revolving Credit Facility (together with DBSI, JPMorgan and JPMCB, the “Senior Secured Lenders”), (ii) DBSI and JPMorgan will act as joint Lead Arrangers and joint Book Running Managers (with DBSI “on the left”) for the Revolving Credit Facility (in such capacities, the “Joint Lead Arrangers”) and (iii) JPMCB will act as syndication agent for the Revolving Credit Facility (in such capacity, the “Syndication Agent”).  Each of DBTCA, DBSI, JPMorgan and JPMCB in such capacity will perform the duties customarily performed by it in such roles.  You agree that, as a condition to the commitments set forth herein, no other agents, co-agents or arrangers will be appointed, no other titles will be awarded and no compensation (other than that expressly contemplated by the Term Sheet and the Fee Letter referred to below) will be paid in connection with the Revolving Credit Facility unless you and we shall so agree.

2



 

Each of DBTCA and JPMCB reserves the right to syndicate all or part of its commitment hereunder to one or more other Senior Secured Lenders that will become party to the definitive credit documentation for the Revolving Credit Facility pursuant to a syndication to be managed by DBSI in consultation with JPMorgan and you.  All aspects of the syndication of each of the Revolving Credit Facility, including, without limitation, timing, potential syndicate members to be approached, titles, allocations and division of fees, shall be managed by DBSI in consultation with JPMorgan and you.  For further clarification, DBSI will manage the physical books for the Revolving Credit Facility, including all of the responsibilities typical of such role (including determining the allocation of commitments among the Senior Secured Lenders and the amount and distribution of fees among the Senior Secured Lenders).  You agree to actively assist the Joint Lead Arranger in such syndication, including by (i) using your commercially reasonable efforts to ensure that the Joint Lead Arrangers’ syndication efforts benefit from your existing lending relationships and (ii) providing the Joint Lead Arrangers and the Senior Secured Lenders, promptly upon request, with all information that is available to you and that is reasonably deemed necessary by the Joint Lead Arrangers to complete successfully the syndication, including, but not limited to, (a) assistance in the preparation of a confidential information memorandum for delivery to potential syndicate members and participants and (b) delivery of projections and other information prepared by you or your affiliates or advisors for delivery to lender(s) in respect of the transactions described herein.  You agree to prepare or assist in the preparation of a version of the information memorandum and presentation consisting exclusively of information and documentation that is either publicly available or not material.  You also agree to make available your representatives, and to cause the officers and representatives of the Sponsors and the senior officers and representatives of Sponsor Holdco, the Borrower and their respective subsidiaries to be available, in each case from time to time on reasonable notice, and to attend and make presentations regarding the business and prospects of Sponsor Holdco, the Borrower and their respective subsidiaries to ratings agencies identified by the Joint Lead Arrangers and at a meeting or meetings of Senior Secured Lenders or prospective Senior Secured Lenders at such times and places as the Joint Lead Arrangers may reasonably request.  The provisions of the preceding two sentences shall remain in full force and effect until the earlier of (i) 60 days after the delivery of a confidential information memorandum with respect to the Revolving Credit Facility to DBSI for syndication and (ii) completion of the successful syndication of the Revolving Credit Facility.  For purposes of this paragraph, a “successful syndication”  shall mean that the Commitment Parties, collectively, hold no more than $175,000,000 of the commitments under the Revolving Credit Facility.  Furthermore, you agree to use your best commercial efforts to obtain ratings for each of the Revolving Credit Facility (which may be of any level) from Standard & Poor’s Ratings Services (“S&P”) and Moody’s Investor’s Services, Inc. (“Moody’s”); provided that obtaining a rating shall not be a condition to close the Revolving Credit Facility.  Notwithstanding the Joint Lead Arrangers’ rights to syndicate the Revolving Credit Facility and receive commitments with respect thereto, the Commitment Parties may not assign all or any portion of their respective commitments hereunder prior to the initial funding under the Revolving Credit Facility on the Closing Date.  It is agreed that, notwithstanding the foregoing, DBSI’s and JPMorgan’s respective obligations to fund the commitments hereunder on the Closing Date are not subject to the syndication of the Revolving Credit Facility.

3



 

You represent and warrant that, to the best of your knowledge, (i) no written information which has been or is hereafter furnished by you or on your behalf in connection with the transactions contemplated hereby and (ii) no other information given at information meetings for potential syndicate members and supplied or approved by you or on your behalf (such written information and other information being referred to herein collectively as the “Information”) taken as a whole contains (or, in the case of Information furnished after the date hereof, will contain), any untrue statement of material fact or omitted (or will omit) to state any material fact necessary to make the statements therein taken as a whole not misleading, in the light of the circumstances under which they were (or hereafter are) made; provided that, with respect to Information consisting of statements, estimates and projections regarding the future performance of Sponsor Holdco, Fertitta Partners, the Borrower and their respective subsidiaries (collectively, the “Projections”), no representation or warranty is made other than that the Projections have been (and, in the case of Projections furnished after the date hereof, will be) prepared in good faith based on assumptions believed to be reasonable at the time of preparation thereof (it being understood that the Projections are subject to significant uncertainties and contingencies, many of which are beyond your control and that no assurance can be given that such Projections will be realized).  You agree to supplement the Information and the Projections from time to time until the date of the initial borrowing under the Revolving Credit Facility to the extent necessary to cause the representations and warranties in the preceding sentence to remain correct.  You understand that, in syndicating the Revolving Credit Facility, the Joint Lead Arrangers will use and rely primarily on the Information and the Projections without independent verification thereof.  You agree that unless it is specifically labeled “Private — Contains Non-Public Information” by you when delivered to us, no information, documentation or other data delivered by you to us for use with prospective Senior Secured Lenders in connection with the syndication of the Revolving Credit Facility, whether through an internet site (including, without limitation, an IntraLinks workspace), electronically, in presentations at bank meetings or otherwise, will contain any material non-public information.

The Commitment Parties’ commitments and agreements hereunder are subject solely to the conditions set forth in the Term Sheet.  Notwithstanding anything in this Commitment Letter (as defined below), the Fee Letter (as defined below), the definitive credit documentation for the Revolving Credit Facility or any other letter agreement or other undertaking concerning the Transaction to the contrary, the only representations relating to the Borrower, its subsidiaries and their businesses the making of which shall be a condition to the closing of the Revolving Credit Facility on the Closing Date shall be (A) such of the representations made by the Target in the Acquisition Agreement as are material to the interests of the Senior Secured Lenders, but only to the extent that you would, but for the application of clause (z) in the lead-in to Article IV of the Acquisition Agreement, have the right to terminate your obligations under the Acquisition Agreement as a result of a breach of such representations in the Acquisition Agreement (the “Acquisition Agreement Representations”), and (B) the Specified Representations (as defined below).  In addition, the terms of the definitive credit documentation for the Revolving Credit Facility shall be in a form such that they do not impair availability of the Revolving Credit Facility on the Closing Date if the conditions set forth herein and in the Term Sheet are satisfied; provided, however, that with respect to any collateral the security interest in which may not be perfected by filing of a UCC financing statement, recordation of a mortgage (or deed of trust) or delivery to Administrative Agent (or, if delivery to Administrative Agent cannot be made on or prior to the Closing Date because gaming approval of the relevant pledge has not yet been obtained, delivery into escrow) of a physical stock certificate (or other equity interest certificate), if the perfection of the Administrative

4



Agent’s security interest in such collateral may not be accomplished prior to the Closing Date without undue delay, burden or expense, then delivery of documents and instruments for perfection of such security interest shall not constitute a condition precedent to the initial borrowings under the Revolving Credit Facility if the Borrower agrees to deliver or cause to be delivered such documents and instruments, and take or cause to be taken such other actions as may be required to perfect such security interests, within 90 days after the Closing Date (or within 180 days after the Closing Date in respect of delivery of stock certificates (or other equity interest certificates) that requires gaming approval).  You agree to use your reasonable efforts to procure, in respect of each mortgage (or deed of trust) a lenders title insurance policy in form and substance reasonably satisfactory to the Joint Lead Arrangers on or prior to the Closing Date, but the procurement of such title insurance shall not be a condition to the Closing Date.  “Specified Representations” means the representations of the Borrower and the Guarantors (as defined in the Term Sheet) set forth in the Term Sheets and relating to corporate power and authority to enter into the documentation relating to the Revolving Credit Facility, due authorization, execution, delivery and enforceability of such documentation, such documentation not conflicting with or creating a breach or default under charter documents, law or material contracts (it being understood that the non-contravention representation shall not be qualified as set forth in the disclosures to Section 4.4 of the Acquisition Agreement but may be subject to customary qualifications), Federal Reserve margin regulations, the Investment Company Act and, subject to the preceding sentence, the perfection and priority of the security interests granted in the proposed collateral.

As consideration for the commitments and agreements of the Commitment Parties hereunder, you agree to cause to be paid the nonrefundable fees described in the Fee Letter dated December 8, 2006 and heretofore delivered (the “Fee Letter”).  The Fee Letter remains in full force and effect.  To further induce the Commitment Parties to issue this letter (together with the Term Sheet, this “Commitment Letter”) and to proceed with the documentation of the proposed Revolving Credit Facility, you hereby agree to reimburse the Commitment Parties and their affiliates on the earlier to occur of the Closing Date and the date on which this Commitment Letter terminates pursuant to the last paragraph hereof for all reasonable out-of-pocket costs and expenses (including, without limitation, reasonable legal fees and expenses of counsel to DBSI and DBTCA, appraisal, consulting and audit fees, and printing, reproduction, document delivery, travel, communication and publicity costs) incurred in connection with the syndication and execution of the Revolving Credit Facility, and the preparation, review, negotiation, execution and delivery of this Commitment Letter, the Fee Letter, the Existing Commitment Documents (defined below), the financing documentation related to the Revolving Credit Facility and the administration, amendment, modification or waiver thereof (or any proposed amendment, modification or waiver), whether or not the Closing Date occurs or any financing documentation related to the Revolving Credit Facility is executed and delivered or any extensions of credit are made under the Revolving Credit Facility.  You further agree to indemnify and hold harmless each Commitment Party, and each other agent or co-agent (if any) with respect to the Revolving Credit Facility (including the Administrative Agent, and the Joint Lead Arrangers), each Senior Secured Lender (including in any event DBSI, DBTCA, JPMorgan and JPMCB) and their respective affiliates and each director, officer, employee, representative and agent thereof (each, an “indemnified person”) from and against any and all actions, suits, proceedings (including any investigations or inquiries), claims, losses, damages, liabilities or expenses of any kind or nature whatsoever which may be incurred by or asserted against or involve any Commitment Party, any

5



 

Senior Secured Lender or any other such indemnified person as a result of or arising out of or in any way related to or resulting from the Transaction, this Commitment Letter or the Existing Bank Commitment Letter (defined below) and, upon demand, to pay and reimburse each indemnified person for any reasonable legal or other out-of-pocket expenses paid or incurred in connection with investigating, defending or preparing to defend any such action, suit, proceeding (including any inquiry or investigation) or claim (whether or not such indemnified person is a party to any action or proceeding out of which any such expenses arise); provided, however, that you shall not have to indemnify any indemnified person or any person to whom liabilities for the actions of such indemnified person are imputed under applicable employment law or agency law against any loss, claim, damage, expense or liability to the extent same resulted from the gross negligence or willful misconduct of such indemnified person (as determined by a court of competent jurisdiction in a final and non-appealable judgment).  Neither any Commitment Party nor any other indemnified person shall be responsible or liable to you or any other person or entity for (x) any determination made by it pursuant to this Commitment Letter in the absence of gross negligence or willful misconduct on the part of such person or entity (as determined by a court of competent jurisdiction in a final and non-appealable judgment), (y) any damages arising from the use by others of information or other materials obtained through electronic, telecommunications or other information transmission systems or (z) any indirect, special, incidental, punitive or consequential damages (including, without limitation, any loss of profits, business or anticipated savings) which may be alleged as a result of this Commitment Letter, the Existing Bank Commitment Letter or the financing contemplated hereby.

Each Commitment Party (including in its capacities as an agent or arranger hereunder) reserves the right to employ the services of its affiliates in providing services contemplated by this Commitment Letter and to allocate, in whole or in part, to its affiliates certain fees payable to each Commitment Party in such manner as such Commitment Party and its affiliates may agree in their sole discretion.  You also agree that the Commitment Parties may at any time and from time to time assign all or any portion of its commitments hereunder to one or more of its affiliates; provided, that the Commitment Parties agree not to assign their commitments hereunder to any principal investment portfolios of the Commitment Parties or their branches or subsidiaries.  You further acknowledge that (i) each Commitment Party may share with any of its affiliates, and such affiliates may share with the Commitment Parties, any information related to the Transaction, Sponsor Holdco, the Borrower, the Sponsors (and your and their respective subsidiaries and affiliates), or any of the matters contemplated hereby, and (ii) each Commitment Party and its affiliates may be providing debt financing, equity capital or other services (including financial advisory services) to other companies in respect of which you or the Target may have conflicting interests regarding the transactions described herein and otherwise; provided, however, that notwithstanding the foregoing, in consideration of the payments made by you under the Fee Letter and the covenants and undertakings by you in our favor under this Commitment Letter, DBSI, DBTCA, JPMorgan and JPMCB, for themselves and on behalf of their affiliates, agree, for a period of one year from the date hereof and so long as you are not in material breach of any of your material obligations hereunder, that none of DBSI, DBTCA, JPMorgan or JPMCB or any of their respective affiliates shall provide financing to any other person or group that seeks to make a competing bid to purchase or otherwise take control of  the Target.  Consistent with each Commitment Party’s policy to hold in confidence the affairs of its clients, each Commitment Party agrees (as to itself only) to treat, and cause any such affiliate of such Commitment Party to treat, all non-public information provided to it by Sponsor Holdco, Fertitta Partners, Sponsors and the Borrower as confidential information.

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You agree that this Commitment Letter and the Fee Letter are for your confidential use only and that, unless each Commitment Party has otherwise consented, neither their existence nor the terms hereof or thereof will be disclosed by you to any person or entity other than (a) your officers, directors, employees, accountants, attorneys and other advisors, and then only on a “need to know” basis in connection with the transactions contemplated hereby and on a confidential basis, (b) potential co-investors who agree to be subject to the confidentiality provisions set forth herein, (c) as reasonably required in connection with regulatory matters and (d) the Target and its advisors on a confidential basis in connection with the proposed Acquisition.

You hereby represent and acknowledge that, to the best of your knowledge, neither any Commitment Party nor any employees or agents of, or other persons affiliated with, any Commitment Party have directly or indirectly made or provided any statement (oral or written) to you or to any of your employees or agents, or other persons affiliated with or related to you (or, so far as you are aware, to any other person), as to the potential tax consequences of the Transaction.

The reimbursement, indemnification, jurisdiction and confidentiality provisions contained herein and in the Fee Letter shall survive any termination of this Commitment Letter.

In order to comply with the USA PATRIOT Act, each Commitment Party must obtain, verify and record information that sufficiently identifies each entity (or individual) that enters into a business relationship with such Commitment Party.  As a result, in addition to your corporate name and address, each Commitment Party will obtain your corporate tax identification number and certain other information.  Any Commitment Party may also request relevant corporate resolutions and other identifying documents.

This Commitment Letter and the Fee Letter (and your rights and obligations hereunder and thereunder) shall not be assignable by any of the parties hereto to any person or entity without the prior written consent of the other parties (and any purported assignment without such consent shall be null and void).  This Commitment Letter and the Fee Letter may not be amended or modified, or any provision hereof and thereof waived, except by an instrument in writing signed by you and each Commitment Party.  Each of this Commitment Letter and the Fee Letter may be executed in any number of counterparts, each of which shall be an original and all of which, when taken together, shall constitute one agreement.  Delivery of an executed signature page of this Commitment Letter or the Fee Letter by facsimile (or other electronic) transmission shall be effective as delivery of a manually executed counterpart hereof or thereof, as the case may be.  This Commitment Letter and the Fee Letter shall be governed by, and construed in accordance with, the laws of the State of New York.  This Commitment Letter and the Fee Letter set forth the entire agreement between the parties hereto as to the matters set forth herein and supersede all prior communications, written or oral, with respect to the matters herein.  Matters that are not covered or made clear herein, in the Term Sheet or in the Fee Letter are subject to mutual agreement of the parties hereto.  This Commitment Letter and the Fee Letter are intended to be solely for the benefit of the parties hereto and thereto and are not

7



 

intended to confer any benefits upon, or create any rights in favor of, any person or entity other than the parties hereto or thereto (and indemnified persons) and may not be relied upon by any person or entity other than you.  Neither this Commitment Letter nor the Fee Letter are intended to create a fiduciary relationship among the parties hereto or thereto.

This Commitment Letter amends and restates that certain Amended and Restated Financing Commitment Letter, dated as of February 23, 2007 (the “Existing Bank Commitment Letter”), among you, DBSI, DBTCA, JPMorgan and JPMCB and shall be deemed to supersede in its entirety the Existing Bank Commitment Letter, and the Existing Bank Commitment Letter is hereby terminated and of no further force or effect.

Each of the parties hereto hereby waives any right to trial by jury with respect to any claim, action, suit or proceeding arising out of or contemplated by this Commitment Letter or the Fee Letter.  Each of the parties hereto hereby submits to the non-exclusive jurisdiction of the federal and New York state courts located in the county of New York in connection with any dispute related to this Commitment Letter, the Fee Letter or any matters contemplated hereby or thereby.

Each Commitment Party’s willingness, and commitments, with respect to the Revolving Credit Facility as set forth above will terminate on the first to occur of (x) May 23, 2008, unless on or prior to such date the Transaction has been consummated and a definitive credit agreement evidencing the Revolving Credit Facility shall have been entered into and the initial borrowings shall have occurred thereunder or (y) the date of the termination of the definitive agreement with respect to the Acquisition (as it may be amended, the “Acquisition Agreement”) (other than with respect to ongoing indemnities, confidentiality provisions and similar provisions).

*  *  *

If you are in agreement with the foregoing, please sign and return to the Commitment Parties the enclosed copy of this Commitment Letter no later than 11:59 p.m., New York time, on May 5, 2007.  Unless this Commitment Letter is signed and returned by the time and date provided in the immediately preceding sentence, this Commitment Letter shall terminate at such time and date.

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Very truly yours,

 

 

 

 

 

 

 

DEUTSCHE BANK TRUST COMPANY AMERICAS

 

 

 

 

 

 

 

 

 

 

 

 

By:

 

/s/ Alex Johnson

 

 

 

 

Name: Alex Johnson

 

 

 

 

Title: Managing Director

 

 

 

 

 

 

 

By:

 

/s/ Linda Wang

 

 

 

 

Name: Linda Wang

 

 

 

 

Title: Director

 

 

 

 

 

 

 

 

 

 

 

 

DEUTSCHE BANK SECURITIES INC.

 

 

 

 

 

 

 

 

 

 

 

 

By:

 

/s/ Alex Johnson

 

 

 

 

Name: Alex Johnson

 

 

 

 

Title: Managing Director

 

 

 

 

 

 

 

By:

 

/s/ Linda Wang

 

 

 

 

Name: Linda Wang

 

 

 

 

Title: Director

 

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J.P. MORGAN SECURITIES INC.

 

 

 

 

 

 

 

 

 

 

 

 

By:

 

/s/ Eric Tanjeloff

 

 

 

 

Name: Eric Tanjeloff

 

 

 

 

Title: Executive Director

 

 

 

 

 

 

 

 

 

 

 

 

JPMORGAN CHASE BANK, N.A.

 

 

 

 

 

 

 

 

 

 

 

 

By:

 

/s/ Donald Shokrian

 

 

 

 

Name: Donald Shokrian

 

 

 

 

Title: Managing Director

 

 

 

Agreed to and Accepted this
4th day of May, 2007:

FERTITTA COLONY PARTNERS LLC

 

By:

 

/s/ Frank J. Fertitta III

 

 

 

 

Name: Frank J. Fertitta III

 

 

 

 

Title: Authorized Member

 

 

 

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 EX-7.23 6 a07-13424_1ex7d23.htm EX-7.23


Exhibit 7.23

May 3, 2007

CONFIDENTIAL

FERTITTA COLONY PARTNERS LLC
2960 West Sahara Avenue
Las Vegas, NV 89102

FERTITTA PARTNERS LLC
2960 West Sahara Avenue
Las Vegas, NV 89102

Re:  Acquisition Financing —  Second Amended and Restated (CMBS) Financing Commitment Letter

Ladies and Gentlemen:

You have informed German American Capital Corporation (“GACC”), Deutsche Bank AG, New York Branch (“DB”) and JPMorgan Chase Bank, N.A. (“JPMorgan” and, together with DB and GACC, collectively, the “Commitment Parties”) that one or more affiliates of Colony Capital, LLC (collectively, “Colony”), Mr. Frank J. Fertitta III and his personal investment vehicles (collectively, “Frank Fertitta”) and Mr. Lorenzo J. Fertitta and his personal investment vehicles (collectively, “Lorenzo Fertitta” and together with Colony and Frank Fertitta, the “Principal Investors”), together with other co-investors that are reasonably acceptable to, the Commitment Parties prior to the Closing Date (defined below) and their respective affiliates (collectively, the “Sponsors”) and other members of the management team of Station Casinos, Inc. (the “Target”) and other persons reasonably acceptable to the Commitment Parties (collectively, the “Management Investors” and, together with the Sponsors, the “Equity Investors”) have caused the  formation of Fertitta Colony Partners LLC, a newly formed limited liability company (“Sponsor LLC”).  Sponsor LLC will be the parent of a new Nevada corporation (“Sponsor Holdco”) which would (i) acquire, through a newly formed Nevada corporation wholly-owned by Sponsor Holdco (“Sponsor Merger Sub”), approximately 75% of the non-voting common stock of the Target, by way of a merger of Sponsor Merger Sub with and into the Target (the “Acquisition” or the “Merger”) and (ii) concurrently with the consummation of the Acquisition, refinance (the “Refinancing”) the existing senior secured revolving credit facility of the Target and its subsidiaries, provided that Sponsor LLC may instead own Merger Sub directly (rather than indirectly through Sponsor Holdco).  In connection with the Merger, Frank Fertitta, Lorenzo Fertitta, Blake and Delise Sartini and the Management Investors will cause the formation of Fertitta Partners LLC, a newly formed Nevada limited liability company (“Fertitta Partners”) to which Frank Fertitta, Lorenzo Fertitta and Blake and

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Delise Sartini will contribute a portion of the shares of common stock of Target held by such parties.  Following the consummation of the Merger, Fertitta Partners will own approximately 25% of the non-voting common stock of the Target.  Immediately following the consummation of the Merger, FCP VoteCo, LLC, a newly formed Nevada limited liability company that will be owned by Frank Fertitta, Lorenzo Fertitta and Thomas J. Barrack, Jr. (“FCP VoteCo”), will purchase for nominal consideration shares of voting common stock of the Target which will have limited economic rights.  In addition, following the consummation of the Merger and related transactions Target will own, directly or indirectly, 100% of the equity interests in the Mezzanine Borrowers and Senior Borrower (collectively, “Borrower”) described in the term sheet attached hereto as Exhibit B (the “Term Sheet”).  Senior Borrower shall use the cash proceeds of the CMBS Loan contemplated herein, inter alia, to purchase membership interests of newly formed wholly owned real estate holding subsidiaries that will at such purchase closing own the real estate assets used by certain operating subsidiaries of the Target.  Prior to the closing, these real estate subsidiaries will be wholly owned by such operating subsidiaries of the Target and will be merged into Senior Borrower immediately after the purchase closing.  The real estate assets thereby acquired by Senior Borrower will be leased to the Target, which will in turn sublease the same back to the existing operating subsidiaries of the Target (“Subsidiary OpCos”).

In order to effect the Acquisition, the Refinancing, to pay all fees and expenses incurred in connection with the Transaction (as defined below) and to provide for the working capital needs and general corporate requirements of the Borrower and its subsidiaries after giving effect to the Acquisition, you have advised us that you intend to implement the following transactions:  (i) the contribution of equity to Sponsor Holdco and Fertitta Partners by the Equity Investors in an aggregate amount equal to at least 32.5% of the consideration payable under the Acquisition Agreement defined below (a portion of which in an amount to be agreed may be in the form of rollover equity provided by Frank Fertitta, Lorenzo Fertitta and certain other Sponsors and/or Management Investors) (the “Equity Financing”) or such additional amount as the Equity Investors shall elect to contribute in their sole discretion, (ii) the procurement by the Target of senior secured revolving credit facilities in the aggregate amount of $500.0 million (the “Revolving Credit Facility”) and (iii) the procurement by Borrower of a first lien mortgage loan and mezzanine financing in the aggregate amount of $2,725.0 million (collectively, the “CMBS Loan”).

The transactions described in clauses (i) through (iii) above, as more fully described in the Term Sheet, are collectively referred to herein as the “Financing Transactions.”  The Financing Transactions, the Refinancing and the Acquisition are collectively referred to herein as the “Transaction.”  All funds required to finance the Acquisition and Refinancing, and to pay all fees and expenses incurred in connection with the Transaction, shall be provided pursuant to the Financing Transactions.

1.             Commitment.  DB and GACC (in such capacity, collectively, “DB Initial Lender”) are, and JPMorgan (together with DB Initial Lender, in such capacity, collectively, the “Initial Lenders”) is, pleased to confirm to Sponsors, Sponsor LLC and Fertitta Partners that, subject to the terms set forth herein and in the Term Sheet, each of DB Initial Lender and

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JPMorgan hereby severally commits (each, a “Commitment” and collectively, the “Commitments”) to provide, either directly through GACC or DB or through one or more of their affiliates (in the case of DB Initial Lender), and through JPMorgan or one or more of its affiliates, 62.5% and 37.5%, respectively, of the CMBS Loan to Borrower in an aggregate amount equal to $2.725 billion (the “Aggregate Commitment”), subject to (i) Sponsor LLC’s acceptance of this letter (together with all Exhibits and Schedules attached hereto, the “Commitment Letter”); (ii) satisfaction (or waiver by the appropriate party) of the terms and conditions set forth herein (including, without limitation, the coordinated and concurrent closing of each Commitment); and (iii) the prior satisfaction of the Loan Closing Conditions set forth in Exhibit A attached hereto.  Upon satisfaction of the Loan Closing Conditions, the CMBS Loan shall be made available on the Closing Date by the Initial Lenders in accordance with the terms set forth in the Term Sheet.  The “Closing Date” shall be a date prior to the Termination Date (as defined in Exhibit A) mutually acceptable to the Initial Lenders and Sponsor LLC and at which time all the applicable conditions to closing the CMBS Loan (the “Closing”) shall have been satisfied.

2.             Fees.  Sponsor LLC agrees to pay the fees set forth in the separate fee letter (the “Fee Letter”) dated December 8, 2006 with the Initial Lenders in accordance with the terms of the Fee Letter (the “Agreed Fees”).  The Fee Letter remains in full force and effect. The effectiveness of the Commitments is subject to the payment of the Commitment Fees specified in the Fee Letter in immediately available funds, which payment shall occur on or before the date specified in the Fee Letter.

3.             Indemnification; Expenses.  Each of Sponsor LLC and Fertitta Partners agrees to indemnify and hold harmless the Initial Lenders, all other lenders, any arranger, bookrunner or agent acting on behalf of any lender, and each of the other Indemnified Persons identified in accordance with and as set forth in the indemnification provisions attached as Exhibit C hereto (the “Indemnification Provisions”) and hereby made a part hereof as though fully set forth herein.

In further consideration of the issuance of this Commitment Letter, and recognizing that in connection herewith the Initial Lenders are incurring substantial costs and expenses in connection with the documentation of the Commitments and the CMBS Loan, due diligence, loan closing, syndication, securitization and underwriting with respect to the proposed CMBS Loan, including, without limitation, fees and expenses of counsel, accounting fees, transportation, duplication and printing, third party consultant costs, appraisals, environmental reports, regulatory database searches, engineering reports, search fees, and other reasonable out-of-pocket third-party expenses, each of Sponsor LLC and Fertitta Partners agrees to pay such reasonable out-of-pocket costs and expenses (whether incurred before or after the date hereof), upon the occurrence of the Closing of the transactions contemplated hereunder.

4.             Disclosure.  Sponsor LLC and Fertitta Partners agree that this Commitment Letter is for their confidential use only and will not be disclosed by Sponsor LLC or Fertitta Partners to any person other than its respective accountants, attorneys and other

3



advisors, its potential equity investors and their accountants, attorneys and advisors, and Target and its advisors, and then only on a “need to know” basis in connection with the CMBS Loan and on a confidential basis.  Notwithstanding the foregoing, Sponsors, Sponsor LLC and Fertitta Partners may: (i) make public disclosure of the existence of the Commitments, (ii) file a copy of this Commitment Letter in any public record in which it is required by law to be filed, and (iii) make such other public disclosures of the terms and conditions hereof as Sponsors, Sponsor LLC and Fertitta Partners are required by law (including any applicable SEC regulations), in the opinion of its counsel, to make.

Each of Sponsor LLC and Fertitta Partners represents and warrants that all information that has been or will hereafter be made available by Sponsor LLC, Fertitta Partners, the Principal Investors, or any of their representatives in connection with the CMBS Loan to the Initial Lenders or any of their representatives or any potential lender, taken as a whole, are and will be correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, taken as a whole, not misleading in light of the circumstances under which such statements were or are made; provided that with respect to all statements, estimates and projections regarding future performance of Sponsor Holdco, the Borrower, Target and their respective subsidiaries, if any, that have been or will be prepared by the Borrower Parties or any of their representatives and made available to the Initial Lenders or any of their representatives or any potential Lender in connection with the financing contemplated hereby have been or will be prepared in good faith based upon assumptions believed to be reasonable at the time of preparation thereof (it being understood that the Projections are subject to significant uncertainties and contingencies, many of which are beyond your control and that no assurance can be given that such Projections will be realized).  Each of Sponsor LLC and Fertitta Partners agrees to supplement the information and projections from time to time to the extent necessary to cause the representations and warranties contained in this paragraph to remain correct.

The Initial Lenders shall take normal and reasonable precautions and exercise due care to maintain the confidentiality of information provided to them by the Borrower Parties in connection with this Commitment Letter, except to the extent such information (i) was or becomes generally available to the public other than as a result of a disclosure by the Initial Lenders, or (ii) was or becomes available from a source other than the Borrower Parties not known to the Initial Lenders to be in breach of an obligation of confidentiality to the Borrower Parties in the disclosure of such information.  The foregoing shall not be deemed to restrict the Initial Lenders from disclosing such information (a) at the request or pursuant to any requirement of any governmental authority; (b) pursuant to subpoena or other court process, provided that the Initial Lenders will provide the Borrower parties with prior notice of such court process to the extent reasonably feasible; (c) when required to do so in accordance with the provisions of applicable law; (d) to the extent required in connection with any litigation or proceeding to which the Initial Lenders or their affiliates may be a party, provided that the Initial Lenders will provide the Borrower parties with prior notice of such court process to the extent reasonably feasible; (e) to the extent required in connection with the exercise of any remedy hereunder or

4



under any loan document; (f) to the Initial Lenders’ independent auditors, rating agencies, and other professional advisors; and (g) to any prospective participant, investor, or assignee in connection with a syndication or securitization, subject to the confidentiality provisions contained herein.

5.             Expiration and Termination of Commitments.  The Commitments shall: (i) expire if this Commitment Letter is not countersigned and returned to the undersigned prior to 11:59 p.m. Los Angeles time (the “Expiration Time”) on May 5, 2007 (the “Expiration Date”); and (ii) terminate if the Closing does not occur prior to the Termination Date.  In addition, if the definitive agreement with respect to the Acquisition (as it may be amended, the “Acquisition Agreement”) is terminated prior to the consummation of the Transaction, the Commitments will terminate on the date of the termination of the Acquisition Agreement (other than with respect to ongoing indemnities, confidentiality provisions and similar provisions).  Sponsor LLC’s and Fertitta Partners’s respective obligations under Sections 2, 3, and 4 relating to fees, indemnification, costs and expenses and confidentiality shall survive the expiration or termination of the Commitments.

6.             Representations and Warranties.  The Initial Lenders’ commitments and agreements hereunder are subject solely to the conditions set forth in the attachments to this Commitment Letter.  Notwithstanding anything in this Commitment Letter, the Fee Letter, the definitive documentation for the CMBS Loan or any other letter agreement or other undertaking concerning the Transaction to the contrary, the only representations relating to the Borrower,  the Target, its subsidiaries and their businesses the making of which shall be a condition to the closing of the CMBS Loan on the Closing Date shall be (A) such of the representations made by the Target in the Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that you would, but for the application of clause (z) in the lead-in to Article IV of the Acquisition Agreement, have the right to terminate your obligations under the Acquisition Agreement as a result of a breach of such representations in the Acquisition Agreement (the “Acquisition Agreement Representations”), and (B) the Specified Representations (as defined below).  “Specified Representations” means the representations of the Borrower Parties set forth in the Term Sheet and relating to entity power and authority to enter into the documentation relating to the CMBS Loan, due authorization, execution, delivery and enforceability of such documentation, single purpose entity requirements, such documentation not conflicting with or creating a breach or default under charter documents, law or material contracts (it being understood that, subject to customary qualifications, the non-contravention representation shall not be qualified as set forth in the disclosures to Section 4.4 of the Acquisition Agreement), Federal Reserve margin regulations, the Investment Company Act, Property Specific Representations (provided, however, the making of such Property Specific Representations shall only  be a condition to the closing of the CMBS Loan on the Closing Date, to the extent a breach thereof would result in a “Material Adverse Effect on the Company” (as defined in the Acquisition Agreement)), and the perfection and priority of the security interests granted in the proposed collateral.  In addition, in the event a breach of Property Specific Representations results in a Portfolio MAE, the Initial Lenders shall have the right to implement a Property

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Substitution.  As used herein: (A) a Portfolio MAE shall mean a material adverse effect on the Properties taken as a whole, or the operations, business or condition (financial or otherwise) of Borrower, taken as a whole; and (B) Property Substitution shall mean that the Initial Lenders may designate Real Property Interests comprising one or more casino and hotel projects owned by Target (through its subsidiaries) (“Substituted Properties”), which would be conveyed to Senior Borrower in lieu of one or more of the Properties so as to avoid the Portfolio MAE; provided, however, that (i) the designation and conveyance of the Substituted Properties shall be subject to compliance with the other terms and conditions of this Commitment Letter; (ii) all parties shall act reasonably in implementing the Property Substitution consistent with the objective of avoiding the Portfolio MAE while preserving the material terms set forth in the Term Sheet; and (iii) in no event shall such Property Substitution result in an inability to render the opinions contemplated in Section 10 of Exhibit A attached hereto.

7.             Miscellaneous: The following provisions shall be applicable both to this Commitment Letter and to the Fee Letter.

(a)           Reliance on Information.  In undertaking its respective Commitment, each of the Initial Lenders is relying and will continue to rely, without independent verification, thereof, on the accuracy of the information furnished to it by the Borrower Parties, or on their behalf, and the representations and warranties made by Sponsor LLC and Fertitta Partners herein.  The Initial Lenders may also rely on any publicly available information issued or authorized to be issued by Borrower Parties or any of their subsidiaries or affiliates.  The Initial Lenders have no obligation to investigate, and have not undertaken any independent investigation of, any information or materials, public or otherwise, made available by Borrower Parties or any of their subsidiaries or affiliates.  The respective obligations of the Initial Lenders under this Commitment Letter are made solely for the benefit of Sponsors, Sponsor LLC and Fertitta Partners and may not be relied upon or enforced by any other person or entity.

(b)           Complete Agreement; Waivers and Other Changes to be in Writing.  This Commitment Letter (together with the Fee Letter) supersedes all previous negotiations, agreements and other understandings relating to the CMBS Loan, including, without limitation, previous discussions regarding the terms contained on the attached Exhibits.  Please note, however, that the terms and conditions to be set forth in the Loan Documents are not limited to those set forth herein or in the attached Exhibits, provided that unless specifically agreed by the Borrower Parties, they shall not be inconsistent with any provision of this Commitment Letter or the attached Exhibits.  Those matters that are not covered or made clear herein or in the attached Exhibits are subject to further mutual agreement of the parties.  No alteration, waiver, amendment or supplement of or to this Commitment Letter or the Fee Letter shall be binding or effective unless the same is set forth in a writing signed by a duly authorized representative of each party hereto or thereto.

(c)           Power, Authority and Binding Effect.  Each of the parties hereto represents and warrants to each of the other parties hereto that (i) it has all requisite power and authority to enter into this Commitment Letter and the Fee Letter and (ii) each of this

6



Commitment Letter and the Fee Letter has been duly and validly authorized by all necessary corporate action on the part of such party, has been duly executed and delivered by such party and constitutes a legally valid and binding agreement of such party, enforceable against it in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights of creditors generally.

(d)           Time of Essence.  Time shall be of the essence whenever and wherever a date or period of time is prescribed or referred to in this Commitment Letter.

(e)           Governing Law; Consent to Jurisdiction; Waiver of Jury Trial.  This Commitment Letter shall be governed by and construed in accordance with the laws of the State of New York.  The Initial Lenders’ respective obligations as set forth herein shall be subject to all regulatory requirements applicable to them (but such requirements shall not permit the Initial Lenders to terminate this Commitment Letter).

EACH PARTY HERETO IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS COMMITMENT OR THE TRANSACTIONS OR THE MATTERS CONTEMPLATED BY THIS COMMITMENT LETTER.  EACH PARTY HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK COURTS LOCATED IN THE CITY OF NEW YORK IN CONNECTION WITH ANY DISPUTE RELATED TO THIS COMMITMENT LETTER, THE TRANSACTIONS CONTEMPLATED BY THIS COMMITMENT LETTER OR ANY MATTERS RELATED TO THIS COMMITMENT LETTER.  IN THE EVENT OF LITIGATION, THIS LETTER MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

(f)            No Rights or Liability.  Neither this Commitment Letter nor the Fee Letter create, nor shall any of them be construed as creating, any rights enforceable by a person or entity not a party hereto, except as provided in the indemnification provisions.  Each of  Sponsor LLC and Fertitta Partners, on behalf of itself, each other Borrower Party and the Sponsors, acknowledges and agrees that: (i) none of the Initial Lenders, any arranger, bookrunner or agent acting on behalf of any of the Initial Lenders is, nor shall any one of them be construed as, a fiduciary or agent of any Borrower Party or any other person and except as expressly set forth herein, shall have no duties or liabilities to any such person’s equity holders or creditors by virtue of this Commitment Letter or the Fee Letter, all of which are hereby expressly waived; (ii) none of the Initial Lenders nor any arranger, bookrunner or agent acting on behalf of any of the Initial Lenders shall have any liability (including, without limitation, liability for any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements resulting from any negligent act or omission of any of them), whether direct or indirect, in contract, tort or otherwise, to any Borrower Party (including, without limitation, their respective equity holders and creditors) or any other person for or in connection with this Commitment Letter, the Fee Letter or the CMBS Loan, except that a claim in contract for damages recoverable in a contract action that were caused by a breach of any contractual

7



obligation expressly set forth in any written agreement signed by the party against which enforcement of such claim is sought shall not be impaired hereby (provided that no punitive damages are permitted hereunder), and (iii) the Initial Lenders were induced to enter into this Commitment Letter and the Fee Letter by, inter alia, the provisions in Sections 3, 4, and 7 herein.  Without limiting the foregoing, each of Sponsor LLC and Fertitta Partners, on behalf of itself, each other Borrower Party and the Sponsors, acknowledges and agrees that (x) DB Initial Lender shall not have any liability to any Sponsor, Sponsor LLC, Borrower or any other person for or in connection with any act or omission of JPMorgan; and (y) JPMorgan shall not have any liability to any Sponsor, Sponsor LLC, Fertitta Partners, Borrower or any other person for in or in connection with any act or omission of DB Initial Lender; it being understood and agreed that the Commitment of each is several and independent of the other.

(g)           No Liability for Special or Punitive Damages.  To the fullest extent that a claim for punitive damages may lawfully be waived, no party hereto shall ever be liable for any punitive damages on any claim (whether founded in contact, tort, legal duty or any other theory of liability) arising from or related in any manner to this Commitment Letter or the negotiation, execution, administration, performance, breach, or enforcement of this Commitment Letter or the instruments and agreements evidencing, governing or relating to the CMBS Loan contemplated hereby or any amendment thereto or the consummation of, or any failure to consummate, the CMBS Loan or any act, omission, breach or wrongful conduct in any manner related thereto.

(h)           Counterparts.  This Commitment Letter may be executed in one or more counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same agreement.  Delivery of an executed counterpart of this Commitment Letter by facsimile shall be effective as delivery of a manually executed counterpart of this Commitment Letter.

(i)            Amendment and Restatement.  This Commitment Letter amends and restates that certain Amended and Restated Financing Commitment Letter, dated as of February 23, 2007 (the “Existing Bank Commitment Letter”), among Sponsor LLC, DB, GACC and JPMorgan, and shall be deemed to supersede in its entirety the Existing Bank Commitment Letter, and the Existing Bank Commitment Letter is hereby terminated and of no further force or effect.

 

8



Please evidence your acceptance of the provisions of this Commitment Letter, including, without limitation, the attached Exhibits, by (i) signing the enclosed copy of this Commitment Letter; and (ii) returning the signed Commitment Letter to the undersigned at or before the Expiration Date, the time at which the Commitments (if not so accepted prior thereto) will expire.

 

Very truly yours,

 

 

 

DEUTSCHE BANK AG, NEW YORK BRANCH

 

 

 

By:

/s/ Chris Tognola

 

 

 

 

Name:

Chris Tognola

 

 

 

Its:

Managing Director

 

 

 

 

By:

/s/ Todd Sammann

 

 

 

 

Name:

Todd Sammann

 

 

 

 

Its:

Managing Director

 

 

 

 

GERMAN AMERICAN CAPITAL CORPORATION

 

 

 

By:

/s/ Chris Tognola

 

 

 

 

Name:

Chris Tognola

 

 

 

 

Its:

Vice President

 

 

 

 

By:

/s/ Todd Sammann

 

 

 

 

Name:

Todd Sammann

 

 

 

 

Its:

Vice President

 

 

 

 

[SIGNATURES CONTINUED ON NEXT PAGE]

 

 

S-1



 

 

JPMORGAN CHASE BANK, N.A.

 

 

By:

/s/Micah Goodman

 

 

 

Name:

Micah Goodman

 

 

 

Its:

Vice President

 

 

 

[SIGNATURES CONTINUED ON NEXT PAGE]

 

S-2



 

ACCEPTED this 4th day of May, 2007

 

 

FERTITTA COLONY PARTNERS LLC

 

 

 

By:

/s/ Frank J. Fertitta III

 

 

Name:

Frank J. Fertitta III

 

 

Title:

Authorized Member

 

 

 

FERTITTA PARTNERS LLC

 

 

 

By:

/s/ Frank J. Fertitta III

 

 

Name:

Frank J. Fertitta III

 

 

Title:

Authorized Member

 

 

 

S-3


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