SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Amendment No. 2)
UNDER THE SECURITIES EXCHANGE ACT OF 1934*
Red Rock Resorts, Inc.
(Name of Issuer)
Common A Common Stock, par value $0.01
(Title of Class of Securities)
75700L108
(CUSIP Number)
Frank J. Fertitta III
1505 South Pavilion Center Drive
Las Vegas, Nevada 89135
(702) 495-3000
with a copy to:
Deborah J. Conrad, Esq.
Milbank LLP
2029 Century Park East, 33rd Floor
Los Angeles, California 90067
(424) 386-4000
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
August 9, 2019
(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: ☐
NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 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 persons 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).
SCHEDULE 13D
| ||
CUSIP No. 75700L108 | Page 2 of 21 Pages |
(1) | Name of reporting person
Fertitta Business Management LLC | |||||
(2) | Check the appropriate box if a member of a group (a) ☐ (b) ☐
| |||||
(3) | SEC use only
| |||||
(4) | Source of funds
OO (See Item 3) | |||||
(5) | Check box if disclosure of legal proceeding is required pursuant to items 2(d) or 2(e) ☐
| |||||
(6) | Citizenship or place of organization
Nevada | |||||
Number of shares beneficially owned by each reporting person with
|
(7) | Sole voting power
0 | ||||
(8) | Shared voting power
28,208,745 | |||||
(9) | Sole dispositive power
0 | |||||
(10) | Shared dispositive power
28,208,745 | |||||
(11) |
Aggregate amount beneficially owned by each reporting person
28,208,745 | |||||
(12) | Check box if the aggregate amount in row (11) excludes certain shares ☐
| |||||
(13) | Percent of class represented by amount in row (11)
28.63% | |||||
(14) | Type of reporting person (see instructions)
OO (Limited Liability Company) |
2
SCHEDULE 13D
| ||
CUSIP No. 75700L108 | Page 3 of 21 Pages |
(1) | Name of reporting person
FI Station Investor LLC | |||||
(2) | Check the appropriate box if a member of a group (a) ☐ (b) ☐
| |||||
(3) | SEC use only
| |||||
(4) | Source of funds
OO (See Item 3) | |||||
(5) | Check box if disclosure of legal proceeding is required pursuant to items 2(d) or 2(e) ☐
| |||||
(6) | Citizenship or place of organization
Delaware | |||||
Number of shares beneficially owned by each reporting person with
|
(7) | Sole voting power
0 | ||||
(8) | Shared voting power
22,656,184 | |||||
(9) | Sole dispositive power
0 | |||||
(10) | Shared dispositive power
22,656,184 | |||||
(11) |
Aggregate amount beneficially owned by each reporting person
22,656,184 | |||||
(12) | Check box if the aggregate amount in row (11) excludes certain shares ☐
| |||||
(13) | Percent of class represented by amount in row (11)
24.38% | |||||
(14) | Type of reporting person (see instructions)
OO (Limited Liability Company) |
3
SCHEDULE 13D
| ||
CUSIP No. 75700L108 | Page 4 of 21 Pages |
(1) | Name of reporting person
FBM Sub 1 LLC | |||||
(2) | Check the appropriate box if a member of a group (a) ☐ (b) ☐
| |||||
(3) | SEC use only
| |||||
(4) | Source of funds
OO (See Item 3) | |||||
(5) | Check box if disclosure of legal proceeding is required pursuant to items 2(d) or 2(e) ☐
| |||||
(6) | Citizenship or place of organization
Delaware | |||||
Number of shares beneficially owned by each reporting person with
|
(7) | Sole voting power
0 | ||||
(8) | Shared voting power
6,000,000 | |||||
(9) | Sole dispositive power
0 | |||||
(10) | Shared dispositive power
6,000,000 | |||||
(11) |
Aggregate amount beneficially owned by each reporting person
6,000,000 | |||||
(12) | Check box if the aggregate amount in row (11) excludes certain shares ☐
| |||||
(13) | Percent of class represented by amount in row (11)
7.86% | |||||
(14) | Type of reporting person (see instructions)
OO (Limited Liability Company) |
4
SCHEDULE 13D
| ||
CUSIP No. 75700L108 | Page 5 of 21 Pages |
(1) | Name of reporting person
The Frank J. Fertitta, III and Jill Ann Fertitta Family Trust | |||||
(2) | Check the appropriate box if a member of a group (a) ☐ (b) ☐
| |||||
(3) | SEC use only
| |||||
(4) | Source of funds
OO (See Item 3) | |||||
(5) | Check box if disclosure of legal proceeding is required pursuant to items 2(d) or 2(e) ☐
| |||||
(6) | Citizenship or place of organization
Nevada | |||||
Number of shares beneficially owned by each reporting person with
|
(7) | Sole voting power
0 | ||||
(8) | Shared voting power
608,000 | |||||
(9) | Sole dispositive power
0 | |||||
(10) | Shared dispositive power
608,000 | |||||
(11) |
Aggregate amount beneficially owned by each reporting person
608,000 | |||||
(12) | Check box if the aggregate amount in row (11) excludes certain shares ☐
| |||||
(13) | Percent of class represented by amount in row (11)
0.86% | |||||
(14) | Type of reporting person (see instructions)
OO (Trust) |
5
SCHEDULE 13D
| ||
CUSIP No. 75700L108 | Page 6 of 21 Pages |
(1) | Name of reporting person
The Lorenzo J. Fertitta and Teresa Jo Fertitta Family Trust | |||||
(2) | Check the appropriate box if a member of a group (a) ☐ (b) ☐
| |||||
(3) | SEC use only
| |||||
(4) | Source of funds
OO (See Item 3) | |||||
(5) | Check box if disclosure of legal proceeding is required pursuant to items 2(d) or 2(e) ☐
| |||||
(6) | Citizenship or place of organization
Nevada | |||||
Number of shares beneficially owned by each reporting person with
|
(7) | Sole voting power
0 | ||||
(8) | Shared voting power
608,000 | |||||
(9) | Sole dispositive power
0 | |||||
(10) | Shared dispositive power
608,000 | |||||
(11) |
Aggregate amount beneficially owned by each reporting person
608,000 | |||||
(12) | Check box if the aggregate amount in row (11) excludes certain shares ☐
| |||||
(13) | Percent of class represented by amount in row (11)
0.86% | |||||
(14) | Type of reporting person (see instructions)
OO (Trust) |
6
SCHEDULE 13D
| ||
CUSIP No. 75700L108 | Page 7 of 21 Pages |
(1) | Name of reporting person
Frank J. Fertitta, III 2006 Irrevocable Trust | |||||
(2) | Check the appropriate box if a member of a group (a) ☐ (b) ☐
| |||||
(3) | SEC use only
| |||||
(4) | Source of funds
OO (See Item 3) | |||||
(5) | Check box if disclosure of legal proceeding is required pursuant to items 2(d) or 2(e) ☐
| |||||
(6) | Citizenship or place of organization
Nevada | |||||
Number of shares beneficially owned by each reporting person with
|
(7) | Sole voting power
0 | ||||
(8) | Shared voting power
152,000 | |||||
(9) | Sole dispositive power
0 | |||||
(10) | Shared dispositive power
152,000 | |||||
(11) |
Aggregate amount beneficially owned by each reporting person
152,000 | |||||
(12) | Check box if the aggregate amount in row (11) excludes certain shares ☐
| |||||
(13) | Percent of class represented by amount in row (11)
0.22% | |||||
(14) | Type of reporting person (see instructions)
OO (Trust) |
7
SCHEDULE 13D
| ||
CUSIP No. 75700L108 | Page 8 of 21 Pages |
(1) | Name of reporting person
Lorenzo J. Fertitta 2006 Irrevocable Trust | |||||
(2) | Check the appropriate box if a member of a group (a) ☐ (b) ☐
| |||||
(3) | SEC use only
| |||||
(4) | Source of funds
OO (See Item 3) | |||||
(5) | Check box if disclosure of legal proceeding is required pursuant to items 2(d) or 2(e) ☐
| |||||
(6) | Citizenship or place of organization
Nevada | |||||
Number of shares beneficially owned by each reporting person with
|
(7) | Sole voting power
0 | ||||
(8) | Shared voting power
152,000 | |||||
(9) | Sole dispositive power
0 | |||||
(10) | Shared dispositive power
152,000 | |||||
(11) |
Aggregate amount beneficially owned by each reporting person
152,000 | |||||
(12) | Check box if the aggregate amount in row (11) excludes certain shares ☐
| |||||
(13) | Percent of class represented by amount in row (11)
0.22% | |||||
(14) | Type of reporting person (see instructions)
OO (Trust) |
8
SCHEDULE 13D
| ||
CUSIP No. 75700L108 | Page 9 of 21 Pages |
(1) | Name of reporting person
Fertitta Holdco LLC | |||||
(2) | Check the appropriate box if a member of a group (a) ☐ (b) ☐
| |||||
(3) | SEC use only
| |||||
(4) | Source of funds
OO (See Item 3) | |||||
(5) | Check box if disclosure of legal proceeding is required pursuant to items 2(d) or 2(e) ☐
| |||||
(6) | Citizenship or place of organization
Delaware | |||||
Number of shares beneficially owned by each reporting person with
|
(7) | Sole voting power
0 | ||||
(8) | Shared voting power
22,656,184 | |||||
(9) | Sole dispositive power
0 | |||||
(10) | Shared dispositive power
22,656,184 | |||||
(11) |
Aggregate amount beneficially owned by each reporting person
22,656,184 | |||||
(12) | Check box if the aggregate amount in row (11) excludes certain shares ☐
| |||||
(13) | Percent of class represented by amount in row (11)
24.38% | |||||
(14) | Type of reporting person (see instructions)
OO (Limited Liability Company) |
9
SCHEDULE 13D
| ||
CUSIP No. 75700L108 | Page 10 of 21 Pages |
(1) | Name of reporting person
Fertitta Investment LLC | |||||
(2) | Check the appropriate box if a member of a group (a) ☐ (b) ☐
| |||||
(3) | SEC use only
| |||||
(4) | Source of funds
OO (See Item 3) | |||||
(5) | Check box if disclosure of legal proceeding is required pursuant to items 2(d) or 2(e) ☐
| |||||
(6) | Citizenship or place of organization
Delaware | |||||
Number of shares beneficially owned by each reporting person with
|
(7) | Sole voting power
0 | ||||
(8) | Shared voting power
20,906,616 | |||||
(9) | Sole dispositive power
0 | |||||
(10) | Shared dispositive power
20,906,616 | |||||
(11) |
Aggregate amount beneficially owned by each reporting person
20,906,616 | |||||
(12) | Check box if the aggregate amount in row (11) excludes certain shares ☐
| |||||
(13) | Percent of class represented by amount in row (11)
22.92% | |||||
(14) | Type of reporting person (see instructions)
OO (Limited Liability Company) |
10
SCHEDULE 13D
| ||
CUSIP No. 75700L108 | Page 11 of 21 Pages |
(1) | Name of reporting person
KVF Investments, LLC | |||||
(2) | Check the appropriate box if a member of a group (a) ☐ (b) ☐
| |||||
(3) | SEC use only
| |||||
(4) | Source of funds
OO (See Item 3) | |||||
(5) | Check box if disclosure of legal proceeding is required pursuant to items 2(d) or 2(e) ☐
| |||||
(6) | Citizenship or place of organization
Nevada | |||||
Number of shares beneficially owned by each reporting person with
|
(7) | Sole voting power
0 | ||||
(8) | Shared voting power
8,609,629 | |||||
(9) | Sole dispositive power
0 | |||||
(10) | Shared dispositive power
8,609,629 | |||||
(11) |
Aggregate amount beneficially owned by each reporting person
8,609,629 | |||||
(12) | Check box if the aggregate amount in row (11) excludes certain shares ☐
| |||||
(13) | Percent of class represented by amount in row (11)
10.91% | |||||
(14) | Type of reporting person (see instructions)
OO (Limited Liability Company) |
11
SCHEDULE 13D
| ||
CUSIP No. 75700L108 | Page 12 of 21 Pages |
(1) | Name of reporting person
LNA Investments, LLC | |||||
(2) | Check the appropriate box if a member of a group (a) ☐ (b) ☐
| |||||
(3) | SEC use only
| |||||
(4) | Source of funds
OO (See Item 3) | |||||
(5) | Check box if disclosure of legal proceeding is required pursuant to items 2(d) or 2(e) ☐
| |||||
(6) | Citizenship or place of organization
Nevada | |||||
Number of shares beneficially owned by each reporting person with
|
(7) | Sole voting power
0 | ||||
(8) | Shared voting power
8,609,629 | |||||
(9) | Sole dispositive power
0 | |||||
(10) | Shared dispositive power
8,609,629 | |||||
(11) |
Aggregate amount beneficially owned by each reporting person
8,609,629 | |||||
(12) | Check box if the aggregate amount in row (11) excludes certain shares ☐
| |||||
(13) | Percent of class represented by amount in row (11)
10.91% | |||||
(14) | Type of reporting person (see instructions)
OO (Limited Liability Company) |
12
SCHEDULE 13D
| ||
CUSIP No. 75700L108 | Page 13 of 21 Pages |
(1) | Name of reporting person
F & J Fertitta Family Business Trust | |||||
(2) | Check the appropriate box if a member of a group (a) ☐ (b) ☐
| |||||
(3) | SEC use only
| |||||
(4) | Source of funds
OO (See Item 3) | |||||
(5) | Check box if disclosure of legal proceeding is required pursuant to items 2(d) or 2(e) ☐
| |||||
(6) | Citizenship or place of organization
Nevada | |||||
Number of shares beneficially owned by each reporting person with
|
(7) | Sole voting power
0 | ||||
(8) | Shared voting power
14,104,372 | |||||
(9) | Sole dispositive power
0 | |||||
(10) | Shared dispositive power
14,104,372 | |||||
(11) |
Aggregate amount beneficially owned by each reporting person
14,104,372 | |||||
(12) | Check box if the aggregate amount in row (11) excludes certain shares ☐
| |||||
(13) | Percent of class represented by amount in row (11)
16.71% | |||||
(14) | Type of reporting person (see instructions)
OO (Trust) |
13
SCHEDULE 13D
| ||
CUSIP No. 75700L108 | Page 14 of 21 Pages |
(1) | Name of reporting person
L &T Fertitta Family Business Trust | |||||
(2) | Check the appropriate box if a member of a group (a) ☐ (b) ☐
| |||||
(3) | SEC use only
| |||||
(4) | Source of funds
OO (See Item 3) | |||||
(5) | Check box if disclosure of legal proceeding is required pursuant to items 2(d) or 2(e) ☐
| |||||
(6) | Citizenship or place of organization
Nevada | |||||
Number of shares beneficially owned by each reporting person with
|
(7) | Sole voting power
0 | ||||
(8) | Shared voting power
14,104,372 | |||||
(9) | Sole dispositive power
0 | |||||
(10) | Shared dispositive power
14,104,372 | |||||
(11) |
Aggregate amount beneficially owned by each reporting person
14,104,372 | |||||
(12) | Check box if the aggregate amount in row (11) excludes certain shares ☐
| |||||
(13) | Percent of class represented by amount in row (11)
16.71% | |||||
(14) | Type of reporting person (see instructions)
OO (Trust) |
14
SCHEDULE 13D
| ||
CUSIP No. 75700L108 | Page 15 of 21 Pages |
(1) | Name of reporting person
Frank J. Fertitta III | |||||
(2) | Check the appropriate box if a member of a group (a) ☐ (b) ☐
| |||||
(3) | SEC use only
| |||||
(4) | Source of funds
OO (See Item 3) | |||||
(5) | Check box if disclosure of legal proceeding is required pursuant to items 2(d) or 2(e) ☐
| |||||
(6) | Citizenship or place of organization
U.S.A. | |||||
Number of shares beneficially owned by each reporting person with
|
(7) | Sole voting power
0 | ||||
(8) | Shared voting power
46,188,003 | |||||
(9) | Sole dispositive power
0 | |||||
(10) | Shared dispositive power
46,188,003 | |||||
(11) |
Aggregate amount beneficially owned by each reporting person
46,188,003 | |||||
(12) | Check box if the aggregate amount in row (11) excludes certain shares ☐
| |||||
(13) | Percent of class represented by amount in row (11)
39.92% | |||||
(14) | Type of reporting person (see instructions)
IN |
15
SCHEDULE 13D
| ||
CUSIP No. 75700L108 | Page 16 of 21 Pages |
(1) | Name of reporting person
Lorenzo J. Fertitta | |||||
(2) | Check the appropriate box if a member of a group (a) ☐ (b) ☐
| |||||
(3) | SEC use only
| |||||
(4) | Source of funds
OO (See Item 3) | |||||
(5) | Check box if disclosure of legal proceeding is required pursuant to items 2(d) or 2(e) ☐
| |||||
(6) | Citizenship or place of organization
U.S.A. | |||||
Number of shares beneficially owned by each reporting person with
|
(7) | Sole voting power
0 | ||||
(8) | Shared voting power
46,188,003 | |||||
(9) | Sole dispositive power
0 | |||||
(10) | Shared dispositive power
46,188,003 | |||||
(11) |
Aggregate amount beneficially owned by each reporting person
46,188,003 | |||||
(12) | Check box if the aggregate amount in row (11) excludes certain shares ☐
| |||||
(13) | Percent of class represented by amount in row (11)
39.92% | |||||
(14) | Type of reporting person (see instructions)
IN |
16
SCHEDULE 13D
| ||
CUSIP No. 75700L108 | Page 17 of 21 Pages |
EXPLANATORY NOTE
This Amendment No. 2 to Schedule 13D (this Amendment No. 2) amends and supplements the Schedule 13D filed with the Securities and Exchange Commission (the SEC) on May 12, 2016 (the Original Schedule 13D), as amended by Amendment No. 1 to Schedule 13D filed with the SEC on May 20, 2016 (Amendment No. 1, and together with the Original Schedule 13D, the Schedule 13D), as specifically set forth herein. Capitalized terms used but not defined in this Amendment No. 2 have the meanings given to such terms in the Original Schedule 13D and Amendment No. 1, as the case may be.
Item 2. Identity and Background
Item 2(a) is amended and restated in its entirety to read as follows:
This Schedule 13D is being filed by (i) FI Station Investor LLC (FI Station), in its capacity as the record owner of the Issuers securities as set forth herein; (ii) Fertitta Investment LLC (Fertitta Investment), in its capacity as the majority member of FI Station; (iii) KVF Investments, LLC (KVF), in its capacity as a member of FI Station and Fertitta Investment; (iv) LNA Investments, LLC (LNA), in its capacity as a member of FI Station and Fertitta Investment; (v) FBM Sub 1 LLC (FBM Sub 1), in its capacity as a record owner of the Issuers securities as set forth herein; (vi) Fertitta Business Management LLC (FBM), in its capacity as the record owner of the Issuers securities as set forth herein and as a member of Fertitta Investment and the member of FBM Sub 1; (vii) F & J Fertitta Family Business Trust (the F&J Trust), in its capacity as a member of FBM; (viii) L & T Fertitta Family Business Trust (the L&T Trust), in its capacity as a member of FBM; (ix) Fertitta Holdco LLC (Fertitta Holdco), in its capacity as manager of FI Station and Fertitta Investment; (x) The Frank J. Fertitta, III and Jill Ann Fertitta Family Trust (the F&J Fertitta Family Trust), in its capacity as the record owner of the Issuers securities as set forth herein; (xi) The Lorenzo J. Fertitta and Teresa Jo Fertitta Family Trust (the L&T Fertitta Family Trust), in its capacity as the record owner of the Issuers securities as set forth herein; (xii) Frank J. Fertitta, III 2006 Irrevocable Trust (the FJF Irrevocable Trust), in its capacity as the record owner of the Issuers securities as set forth herein; (xiii) Lorenzo J. Fertitta 2006 Irrevocable Trust (the LJF Irrevocable Trust), in its capacity as the record owner of the Issuers securities as set forth herein; (xiv) Frank J. Fertitta III; and (xv) Lorenzo J. Fertitta (the foregoing entities and persons collectively, the Reporting Persons) pursuant to their agreement to the joint filing of this Schedule 13D, attached hereto as Exhibit 22.
As of the date of this statement, (i) FI Station is the record owner of 42,199 shares of Class A Common Stock, 22,613,985 shares of Class B Common Stock and 22,613,985 LLC Units, (ii) FBM Sub 1 is the record owner of 6,000,000 shares of Class B Common Stock and 6,000,000 LLC Units; (iii) FBM is the record owner of 16,771,819 shares of Class B Common Stock and 16,771,819 LLC Units, (iv) the F&J Fertitta Family Trust is the record owner of 608,000 shares of Class A Common Stock, (v) the L&T Fertitta Family Trust is the record owner of 608,000 shares of Class A Common Stock, (vi) the FJF Irrevocable Trust is the record owner of 152,000 shares of Class A Common Stock, and (vii) the LJF Irrevocable Trust is the record owner of 152,000 shares of Class A Common Stock. FI Stations principal business is to invest in the equity securities of Holdco and the Issuer. FBM Sub 1s principal business is to hold securities of Holdco and the Issuer. FBMs principal business is to invest in the equity securities of Holdco and the Issuer as well as other business enterprises of Frank J. Fertitta, III and Lorenzo J. Fertitta. The principal business of each of the F&J Fertitta Family Trust, L&T Fertitta Family Trust, FJF Irrevocable Trust and LJF Irrevocable Trust is to hold assets for its beneficiaries. Fertitta Investment is the majority member of FI Station, and Fertitta Investments principal business is to act as such. KVF and LNA are members of FI Station and Fertitta Investment and their principal business is to invest in the equity securities of the Issuer and Holdco as well as other business enterprises of Frank J. Fertitta III and Lorenzo J. Fertitta. The F&J Trust and the L&T Trust are the members of FBM and their principal business is to invest in the equity securities of the Issuer and Holdco as well as other business enterprises of Frank J. Fertitta III and Lorenzo J. Fertitta. Fertitta Holdco is the manager of FI Station and Fertitta Investment and its principal business is to manage FI Station and Fertitta Investment and other business enterprises of Frank J. Fertitta III and Lorenzo J. Fertitta.
Due to their relationships with FI Station, FBM Sub 1 and FBM, each of Fertitta Holdco, Fertitta Investment, KVF, LNA, the F&J Trust and the L&T Trust may be deemed to have shared voting and investment power with respect to the Class A Common Stock, Class B Common Stock and LLC Units beneficially owned by FI
17
SCHEDULE 13D
| ||
CUSIP No. 75700L108 | Page 18 of 21 Pages |
Station, FBM Sub 1 and FBM. As such, Fertitta Holdco, Fertitta Investment, KVF, LNA, the F&J Trust and the L&T Trust may be deemed to have shared beneficial ownership over such securities. Each of Fertitta Investment, KVF, LNA, the F&J Trust and the L&T Trust, however, disclaims beneficial ownership of any shares of Class A Common Stock, shares of Class B common Stock and LLC Units, except to the extent of any pecuniary interest therein.
Fertitta Holdco is owned and managed by Frank J. Fertitta III and Lorenzo J. Fertitta. KVF is managed by Frank J. Fertitta III and is beneficially owned by various trusts established for the benefit of his three children. LNA is managed by Lorenzo J. Fertitta and is beneficially owned by various trusts established for the benefit of his three children. FBM Sub 1 is owned and controlled by FBM. FBM is owned and controlled 50% by the F&J Trust, a revocable trust for which Frank J. Fertitta III has sole investment and voting power, and 50% by the L&T Trust, a revocable trust for which Lorenzo J. Fertitta has sole investment and voting power. The F&J Fertitta Family Trust is a revocable trust for which Frank J. Fertitta III is co-trustee and has shared investment and voting power. The L&T Fertitta Family Trust is a revocable trust for which Lorenzo J. Fertitta is co-trustee and has shared investment and voting power. The FJF Irrevocable Trust is an irrevocable trust for which Lorenzo J. Fertitta is trustee and has sole investment and voting power. The LJF Irrevocable Trust is an irrevocable trust for which Frank J. Fertitta III is trustee and has sole investment and voting power. Accordingly, each of Frank J. Fertitta III and Lorenzo J. Fertitta may be deemed to have shared voting and investment power with respect to the Class A Common Stock, Class B Common Stock and LLC Units beneficially owned by FI Station, FBM Sub 1 and FBM. As such, each of Frank J. Fertitta III and Lorenzo J. Fertitta may be deemed to have shared beneficial ownership over such securities. In addition, Frank J. Fertitta III may be deemed to have beneficial ownership over the securities held by the F&J Fertitta Family Trust and the LJF Irrevocable Trust, and Lorenzo J. Fertitta may be deemed to have beneficial ownership over the securities held by the L&T Fertitta Family Trust and the FJF Irrevocable Trust. Each of Frank J. Fertitta III and Lorenzo J. Fertitta disclaims beneficial ownership of any shares of Class A Common Stock, shares of Class B common Stock and LLC Units beneficially owned by FI Station, Fertitta Investment, FBM Sub 1, FBM, KVF, LNA, the F&J Trust, the L&T Trust, the F&J Fertitta Family Trust, the L&T Fertitta Family Trust, the FJF Irrevocable Trust and the LJF Irrevocable Trust, except to the extent of any pecuniary interest therein.
Item 3. Source and Amount of Funds or Other Consideration
Item 3 is amended by adding the following paragraph:
Between August 8, 2019 and August 9, 2019, the F&J Fertitta Family Trust, the L&T Fertitta Family Trust, the FJF Irrevocable Trust and the LJF Irrevocable Trust purchased an aggregate of 1,520,000 shares of Class A Common Stock for aggregate consideration of $28,466,724 (inclusive of broker fees). The source of funds for the purchases was separate loans to each of the F&J Fertitta Family Trust, the L&T Fertitta Family Trust, the FJF Irrevocable Trust and the LJF Irrevocable Trust (each, a Trust Direct Stockholder) from a limited partnership in which each of the Trust Direct Stockholders is a limited partner. See Item 6 below.
Item 5. Interest in Securities of the Issuer
Item 5(a) and (b) are amended and restated to read as follows:
(a) and (b) The following table sets forth the aggregate number and percentage of the Class A Common Stock beneficially owned by each Reporting Person (based on 70,328,141 shares of Class A Common Stock outstanding as of July 31, 2019). The aggregate number and percentage of the Class A Common Stock beneficially owned by each Reporting Person is calculated in accordance with Rule 13d-3.
Reporting Person |
Number of Shares Beneficially Owned |
Percentage of Class A Common Stock Outstanding(1) |
||||||
FBM |
28,208,745 | 28.63 | % | |||||
FI Station |
22,656,184 | 24.38 | % | |||||
FBM Sub 1 |
6,000,000 | 7.86 | % | |||||
F&J Fertitta Family Trust |
608,000 | 0.86 | % | |||||
L&T Fertitta Family Trust |
608,000 | 0.86 | % | |||||
FJF Irrevocable Trust |
152,000 | 0.22 | % |
18
SCHEDULE 13D
| ||
CUSIP No. 75700L108 | Page 19 of 21 Pages |
LJF Irrevocable Trust |
152,000 | 0.22 | % | |||||
Fertitta Holdco |
22,656,184 | 24.38 | % | |||||
Fertitta Investment |
20,906,616 | 22.92 | % | |||||
KVF |
8,609,629 | 10.91 | % | |||||
LNA |
8,609,629 | 10.91 | % | |||||
F&J Trust |
14,104,372 | 16.71 | % | |||||
L&T Trust |
14,104,372 | 16.71 | % | |||||
Frank J. Fertitta III |
46,188,003 | 39.92 | % | |||||
Lorenzo J. Fertitta |
46,188,003 | 39.92 | % | |||||
Total for Group |
46,948,003 | 40.57 | % |
(1) | Based on the number of shares of Class A Common Stock (70,328,141) issued and outstanding as of July 31, 2019, and assuming all outstanding LLC Units beneficially owned by the Reporting Person were exchanged for newly-issued shares of Class A Common Stock on a one-for-one basis. |
Item 5(c) is amended and restated to read as follows:
(c) The following table sets forth all transactions in the Class A Common Stock effected by the Reporting Persons in the past sixty days. All such transactions were effected in the open market through a broker, and the prices exclude commissions.
Reporting Person |
Trade Date | Shares Purchased | Weighted Average Price per Share ($) |
Low Price per Share ($) |
High Price per Share ($) |
|||||||||||||
F&J Fertitta Family Trust |
August 8, 2019 | 144,238 | 18.148 | 17.600 | 18.595 | |||||||||||||
F&J Fertitta Family Trust |
August 8, 2019 | 135,762 | 18.696 | 18.600 | 18.870 | |||||||||||||
F&J Fertitta Family Trust |
August 9, 2019 | 328,000 | 18.969 | 18.525 | 19.200 | |||||||||||||
L&T Fertitta Family Trust |
August 8, 2019 | 144,238 | 18.148 | 17.600 | 18.595 | |||||||||||||
L&T Fertitta Family Trust |
August 8, 2019 | 135,762 | 18.696 | 18.600 | 18.870 | |||||||||||||
L&T Fertitta Family Trust |
August 9, 2019 | 328,000 | 18.969 | 18.525 | 19.200 | |||||||||||||
FJF Irrevocable Trust |
August 8, 2019 | 36,060 | 18.148 | 17.600 | 18.595 | |||||||||||||
FJF Irrevocable Trust |
August 8, 2019 | 33,940 | 18.696 | 18.600 | 18.870 | |||||||||||||
FJF Irrevocable Trust |
August 9, 2019 | 82,000 | 18.969 | 18.525 | 19.200 | |||||||||||||
LJF Irrevocable Trust |
August 8, 2019 | 36,060 | 18.148 | 17.600 | 18.595 | |||||||||||||
LJF Irrevocable Trust |
August 8, 2019 | 33,940 | 18.696 | 18.600 | 18.870 | |||||||||||||
LJF Irrevocable Trust |
August 9, 2019 | 82,000 | 18.969 | 18.525 | 19.200 |
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer
Item 6 is amended by adding the following:
On August 9, 2019 and August 12, 2019, each of the Trust Direct Stockholders issued one or more separate Secured Demand Promissory Notes (each, a Promissory Note and collectively the Promissory Notes) to Victoria
19
SCHEDULE 13D
| ||
CUSIP No. 75700L108 | Page 20 of 21 Pages |
Partners, Limited Partnership (the Lender), a limited partnership in which each of the Trust Direct Stockholders is a limited partner, evidencing the loans made by the Lender to such Trust Direct Stockholder to provide the funds for such Trust Direct Stockholder to make the purchases of Class A Common Stock described in Item 5(c). The aggregate principal amount of the Promissory Notes is $28,474,000. Other than the principal amounts, the terms of each Promissory Note are the same. Each Promissory Notes provides for interest to accrue at an annual rate equal to the Federal Reserve discount rate in effect from day to day plus 0.35%. Interest is payable under each Promissory Note monthly in arrears. Principal and accrued but unpaid interest is payable upon demand by the Lender. Under the terms of each Promissory Note, the applicable Trust Direct Stockholder has pledged to the Lender such Trust Direct Stockholders limited partnership interests in the Lender as security for such Trust Direct Stockholders obligations under such Promissory Note.
The foregoing summary of the Promissory Notes does not purport to be complete, and is qualified in its entirety by reference to the Promissory Notes filed herewith as Exhibits 16, 17, 18, 19, 20 and 21 and incorporated herein by reference.
In addition, in September 2018, FBM contributed 6,000,000 shares of Class B Common Stock and 6,000,000 LLC Units to FBM Sub 1, its wholly owned subsidiary. Subsequently, FBM Sub 1 pledged each of such shares of Class B Common Stock and LLC Units as collateral security under a margin loan agreement with a third party commercial bank. Other than upon the occurrence, if any, of certain types of default under the revolving line of credit, FBM Sub 1 retains the right to vote and dispose of the shares and units subject to the pledge.
Item 7. Material to be Filed as Exhibits
Exhibit |
Description | |
Exhibit 1 | Power of Attorney for Frank J. Fertitta III (incorporated by reference to Exhibit 1 to Amendment No. 1 to the Schedule 13D filed by certain of the Reporting Persons on May 20, 2016). | |
Exhibit 2 | Power of Attorney for Fertitta Business Management LLC (incorporated by reference to Exhibit 2 to Amendment No. 1 to the Schedule 13D filed by certain of the Reporting Persons on May 20, 2016). | |
Exhibit 3 | Power of Attorney for FI Station Investor LLC (incorporated by reference to Exhibit 3 to Amendment No. 1 to the Schedule 13D filed by certain of the Reporting Persons on May 20, 2016). | |
Exhibit 4 | Power of Attorney for Fertitta Investment LLC (incorporated by reference to Exhibit 4 to Amendment No. 1 to the Schedule 13D filed by certain of the Reporting Persons on May 20, 2016). | |
Exhibit 5 | Power of Attorney for KVF Investments, LLC (incorporated by reference to Exhibit 5 to Amendment No. 1 to the Schedule 13D filed by certain of the Reporting Persons on May 20, 2016). | |
Exhibit 6 | Power of Attorney for LNA Investments, LLC (incorporated by reference to Exhibit 7 to Amendment No. 1 to the Schedule 13D filed by certain of the Reporting Persons on May 20, 2016). | |
Exhibit 7 | Power of Attorney for F & J Fertitta Family Business Trust (incorporated by reference to Exhibit 8 to Amendment No. 1 to the Schedule 13D filed by certain of the Reporting Persons on May 20, 2016). | |
Exhibit 8 | Power of Attorney for L & T Fertitta Family Business Trust (incorporated by reference to Exhibit 9 to Amendment No. 1 to the Schedule 13D filed by certain of the Reporting Persons on May 20, 2016). | |
Exhibit 9 | Power of Attorney for Lorenzo J. Fertitta (incorporated by reference to Exhibit 10 to Amendment No. 1 to the Schedule 13D filed by certain of the Reporting Persons on May 20, 2016). |
20
SCHEDULE 13D
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CUSIP No. 75700L108 | Page 21 of 21 Pages |
Exhibit 10 | Power of Attorney for Fertitta Holdco LLC (incorporated by reference to Exhibit 11 to Amendment No. 1 to the Schedule 13D filed by certain of the Reporting Persons on May 20, 2016). | |
Exhibit 11 | Power of Attorney for The Frank J. Fertitta, III and Jill Ann Fertitta Family Trust. | |
Exhibit 12 | Power of Attorney for The Lorenzo J. Fertitta and Teresa Jo Fertitta Family Trust. | |
Exhibit 13 | Power of Attorney for Frank J. Fertitta, III 2006 Irrevocable Trust. | |
Exhibit 14 | Power of Attorney for Lorenzo J. Fertitta 2006 Irrevocable Trust. | |
Exhibit 15 | Power of Attorney for FBM Sub 1 LLC. | |
Exhibit 16 | Secured Demand Promissory Note, dated August 12, 2019, issued by The Frank J. Fertitta, III and Jill Ann Fertitta Family Trust to Victoria Partners, Limited Partnership. | |
Exhibit 17 | Secured Demand Promissory Note, dated August 12, 2019, issued by The Lorenzo J. Fertitta and Teresa Jo Fertitta Family Trust to Victoria Partners, Limited Partnership. | |
Exhibit 18 | Secured Demand Promissory Note, dated August 9, 2019, issued by Frank J. Fertitta, III 2006 Irrevocable Trust to Victoria Partners, Limited Partnership. | |
Exhibit 19 | Secured Demand Promissory Note, dated August 9, 2019, issued by Lorenzo J. Fertitta 2006 Irrevocable Trust to Victoria Partners, Limited Partnership. | |
Exhibit 20 | Secured Demand Promissory Note, dated August 12, 2019, issued by Frank J. Fertitta, III 2006 Irrevocable Trust to Victoria Partners, Limited Partnership. | |
Exhibit 21 | Secured Demand Promissory Note, dated August 12, 2019, issued by Lorenzo J. Fertitta 2006 Irrevocable Trust to Victoria Partners, Limited Partnership. | |
Exhibit 22 | Joint Filing Agreement as required by Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended. |
21
SIGNATURES
After reasonable inquiry and to the best of each of the undersigneds knowledge and belief, each of the undersigned, severally and not jointly, certifies that the information set forth in this statement is true, complete and correct.
Dated: August 12, 2019
Fertitta Business Management LLC | ||||
By: | /s/ John Hertig | |||
Name: | John Hertig | |||
Title: | Attorney-in-Fact | |||
FI Station Investor LLC | ||||
By: | /s/ John Hertig | |||
Name: | John Hertig | |||
Title: | Attorney-in-Fact | |||
FBM Sub 1 LLC | ||||
By: | /s/ John Hertig | |||
Name: | John Hertig | |||
Title: | Attorney-in-Fact | |||
The Frank J. Fertitta, III and Jill Ann Fertitta Family Trust | ||||
By: | /s/ John Hertig | |||
Name: | John Hertig | |||
Title: | Attorney-in-Fact | |||
The Lorenzo J. Fertitta and Teresa Jo Fertitta Family Trust | ||||
By: | /s/ John Hertig | |||
Name: | John Hertig | |||
Title: | Attorney-in-Fact | |||
Frank J. Fertitta, III 2006 Irrevocable Trust | ||||
By: | /s/ John Hertig | |||
Name: | John Hertig | |||
Title: | Attorney-in-Fact | |||
Lorenzo J. Fertitta 2006 Irrevocable Trust | ||||
By: | /s/ John Hertig | |||
Name: | John Hertig | |||
Title: | Attorney-in-Fact | |||
Fertitta Investment LLC | ||||
By: | /s/ John Hertig | |||
Name: | John Hertig | |||
Title: | Attorney-in-Fact |
Fertitta Holdco LLC | ||||
By: | /s/ John Hertig | |||
Name: | John Hertig | |||
Title: | Attorney-in-Fact | |||
LNA Investments, LLC | ||||
By: | /s/ John Hertig | |||
Name: | John Hertig | |||
Title: | Attorney-in-Fact | |||
KVF Investments, LLC | ||||
By: | /s/ John Hertig | |||
Name: | John Hertig | |||
Title: | Attorney-in-Fact | |||
F & J Fertitta Family Business Trust | ||||
By: | /s/ John Hertig | |||
Name: | John Hertig | |||
Title: | Attorney-in-Fact | |||
L & T Fertitta Family Business Trust | ||||
By: | /s/ John Hertig | |||
Name: | John Hertig | |||
Title: | Attorney-in-Fact | |||
/s/ John Hertig as Attorney-in-Fact | ||||
Frank J. Fertitta III | ||||
/s/ John Hertig as Attorney-in-Fact | ||||
Lorenzo J. Fertitta |
Exhibit 16
Secured Demand Promissory Note
$11,387,000.00 | Las Vegas, Nevada | August 12, 2019 |
FOR VALUE RECEIVED, The Frank J. Fertitta, III and Jill Ann Fertitta Family Trust (Borrower) promises to pay to Victoria Partners, Limited Partnership, a Nevada limited partnership (Partnership Lender), or order, at such place as Partnership Lender may from time to time in writing designate, the total principal sum of Eleven Million Three Hundred Eighty-Seven Thousand and 00/100 Dollars ($11,387,000.00) (the Loan) plus interest thereon to accrue at the fluctuating rate per annum of the Federal Reserve discount rate in effect from day to day plus Thirty Five Hundredths of One Percent (0.35%), beginning as of the date set forth above.
Payment of principal and interest under this Secured Demand Promissory Note (this Note) shall be made in immediately available United States Dollars. Interest on this Note shall accrue at the rate of interest set forth above, including Default interest accruing hereunder, and shall continue to accrue at that same rate (except as otherwise provided herein) until Borrowers obligations under this Note have been satisfied in full.
Borrower shall make payments of interest monthly in arrears on the last business day of each month. All principal and accrued but unpaid interest is payable upon demand of Partnership Lender. If not demanded sooner by Partnership Lender, the entire remaining principal amount outstanding under this Note and all accrued and unpaid interest thereon shall be due and payable in full on the fourth anniversary of the date first above written.
Borrower shall have the right to prepay all or any portion of its obligation under this Note. All payments on this Note shall be applied first to accrued interest and then to principal. Until further notice in writing by Partnership Lender, all payments and notices to Partnership Lender hereunder shall be made to Victoria Partners, Limited Partnership, c/o John A. Hertig, 10801 W. Charleston Blvd., Suite 600, Las Vegas, NV 89135.
As security for Borrowers obligations under this Note, Borrower hereby pledges to Partnership Lender a lien on and security interest in Borrowers limited partnership interests in Partnership Lender. Borrower agrees not to allow the lien and security interest granted hereunder to become subordinate to any parties without Partnership Lenders prior written consent, until such time that Borrowers obligations to Partnership Lender under this Note have been satisfied in full.
Borrower and each surety, guarantor and endorser of this Note, jointly and severally and to the extent permitted by law, waive demand, presentment for payment, notice of dishonor, protest and notice of protest; waive any and all lack of diligence or delays in the collection or enforcement hereof; and consent that the time of payment may be extended or this Note renewed without notice and without releasing the undersigned or any such surety, guarantor or endorser.
Borrowers failure to make any payment as herein provided when such payment is due and payable, or to perform or observe any of the terms, conditions or obligations hereunder, shall constitute an event of default under this Note (each, a Default). In the event of a Default, the entire unpaid principal balance, together with accrued interest, shall immediately become due and payable and Partnership Lender may proceed at once to exercise any or all remedies available to Partnership Lender under this Note, at law or in equity. After any Default, and so long as such
1
Default remains uncured, at the option of Partnership Lender, the unpaid principal sum hereof shall bear interest at the rate of interest then applicable to the Loan hereunder plus three percent (3.00%) per annum, compounded monthly until paid. At such time as a judgment is obtained for any amounts owing under this Note, interest shall continue to accrue on the amount of the judgment at the rate of interest then applicable to the Loan hereunder plus three percent (3.00%) per annum. Borrower acknowledges that the foregoing, and other provisions of this Note, may result in compounding of interest and Borrower agrees thereto pursuant to the provisions of Nevada Revised Statutes 99.050.
All rights and remedies herein given to Partnership Lender are cumulative and not alternative, are in addition to all of the same which are available to Partnership Lender under all statutes at law or in equity, and may be exercised in any order or simultaneously, at Partnership Lenders sole election. Any forbearance or delay by Partnership Lender in exercising the same shall not be deemed to be a waiver thereof or of the right to exercise the same in the event of any subsequent Default or in the event of continuance of any existing Default, and the exercise of any right or partial exercise thereof shall not preclude the further exercise thereof, and the same shall continue in full force and effect until specifically waived by an instrument in writing executed by Partnership Lender.
Borrower also agrees to pay all costs of collection if suit is brought. Costs of collection include, without limitation, reasonable attorneys fees if this Note is placed in the hands of attorneys for collection (whether or not suit is brought to collect the amount past due), together with all court costs, investigative costs and other expenses incurred in the prosecution of any suit.
Borrower hereby waives and releases all errors, defects and imperfections in any proceedings instituted by Partnership Lender under the terms of this Note, as well as all benefit that might accrue to Borrower by virtue of any present or future laws providing for any stay of execution to be issued on any judgment recovered on this Note, and Borrower agrees that any real or personal property that may be levied upon pursuant to a judgment obtained by virtue hereof, on any writ of execution issued thereon, may be sold upon any such writ, in whole or in part, in any order desired by Partnership Lender.
This Note may only be amended, supplemented, modified or terminated by an instrument in writing executed by Partnership Lender and Borrower. No waiver of any term, covenant or provision of this Note shall be effective unless given in writing by the party waiving same, and, if so given by the party waiving same, shall only be effective in the specific instance in which given.
Borrower acknowledges that this Note and Borrowers obligations under this Note are and shall at all times continue to be absolute and unconditional in all respects, and shall at all times be valid and enforceable. This Note sets forth the entire agreement and understanding of Partnership Lender and Borrower. Borrower acknowledges that no oral or other agreements, understandings, representations or warranties exist with respect to this Note or with respect to the obligations of Borrower under this Note, except those specifically set forth in this Note. Borrower additionally agrees that this Note shall be subject to any and all applicable provisions of the Partnership Lenders limited partnership agreement.
2
This Note shall be governed by and construed in accordance with the laws of the State of Nevada, without reference to such States principles of conflicts of laws.
Borrower agrees to submit to personal jurisdiction in Clark County, Nevada, in any action or proceeding arising out of this Note and, in furtherance of such agreement, Borrower hereby agrees and consents that, without limiting other methods of obtaining jurisdiction, personal jurisdiction over Borrower in any such action or proceeding may be obtained within or without the jurisdiction of any court located in Nevada and that any process or notice of motion or other application to any such court in connection with any such action or proceeding may be served upon Borrower by registered or certified mail to or by personal service at the last known address of Borrower, whether such address be within or without the jurisdiction of any such court.
TO THE EXTENT PERMITTED BY LAW, BORROWER HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS NOTE, OR IN ANY WAY CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE DEALINGS OF BORROWER AND PARTNERSHIP LENDER WITH RESPECT TO THIS NOTE, OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BORROWER HEREBY AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY.
Every term and provision of this Note is intended to be severable. If any term or provision hereof is declared by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason whatsoever, such illegality, invalidity or unenforceability shall be treated as though the term or provision never existed and shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain in full force and effect.
Upon receipt by Borrower of written notice from Partnership Lender of the disappearance, loss, theft, destruction or mutilation of this Note, Borrower shall execute and deliver to Partnership Lender in lieu thereof, a replacement note in identical form to this Note and dated as of the date of this Note; provided that Partnership Lender shall indemnify Borrower from and against any loss, cost, damage, liability, expense or claim which Borrower may incur (including, without limitation, attorneys fees and costs) as a result thereof.
* * * Signatures Appear On Following Page * * *
3
IN WITNESS WHEREOF, the undersigned parties have caused this Secured Demand Promissory Note to be executed, delivered and effective as of the date first above written.
BORROWER:
THE FRANK J. FERTITTA, III AND JILL ANN FERTITTA FAMILY TRUST
By: |
|
Name: Frank J. Fertitta, III | ||
Its: Trustee |
PARTNERSHIP LENDER:
VICTORIA PARTNERS, LIMITED PARTNERSHIP
By: Fertitta Enterprises, Inc.
Its: General Partner
By: |
|
Name: John A. Hertig | ||||
Its: Treasurer |
[Signature Page to Secured Demand Promissory Note LP to VPLP]
Exhibit 17
Secured Demand Promissory Note
$11,387,000.00 | Las Vegas, Nevada | August 12, 2019 |
FOR VALUE RECEIVED, The Lorenzo J. Fertitta and Teresa Jo Fertitta Family Trust (Borrower) promises to pay to Victoria Partners, Limited Partnership, a Nevada limited partnership (Partnership Lender), or order, at such place as Partnership Lender may from time to time in writing designate, the total principal sum of Eleven Million Three Hundred Eighty-Seven Thousand and 00/100 Dollars ($11,387,000.00) (the Loan) plus interest thereon to accrue at the fluctuating rate per annum of the Federal Reserve discount rate in effect from day to day plus Thirty Five Hundredths of One Percent (0.35%), beginning as of the date set forth above.
Payment of principal and interest under this Secured Demand Promissory Note (this Note) shall be made in immediately available United States Dollars. Interest on this Note shall accrue at the rate of interest set forth above, including Default interest accruing hereunder, and shall continue to accrue at that same rate (except as otherwise provided herein) until Borrowers obligations under this Note have been satisfied in full.
Borrower shall make payments of interest monthly in arrears on the last business day of each month. All principal and accrued but unpaid interest is payable upon demand of Partnership Lender. If not demanded sooner by Partnership Lender, the entire remaining principal amount outstanding under this Note and all accrued and unpaid interest thereon shall be due and payable in full on the fourth anniversary of the date first above written.
Borrower shall have the right to prepay all or any portion of its obligation under this Note. All payments on this Note shall be applied first to accrued interest and then to principal. Until further notice in writing by Partnership Lender, all payments and notices to Partnership Lender hereunder shall be made to Victoria Partners, Limited Partnership, c/o John A. Hertig, 10801 W. Charleston Blvd., Suite 600, Las Vegas, NV 89135.
As security for Borrowers obligations under this Note, Borrower hereby pledges to Partnership Lender a lien on and security interest in Borrowers limited partnership interests in Partnership Lender. Borrower agrees not to allow the lien and security interest granted hereunder to become subordinate to any parties without Partnership Lenders prior written consent, until such time that Borrowers obligations to Partnership Lender under this Note have been satisfied in full.
Borrower and each surety, guarantor and endorser of this Note, jointly and severally and to the extent permitted by law, waive demand, presentment for payment, notice of dishonor, protest and notice of protest; waive any and all lack of diligence or delays in the collection or enforcement hereof; and consent that the time of payment may be extended or this Note renewed without notice and without releasing the undersigned or any such surety, guarantor or endorser.
Borrowers failure to make any payment as herein provided when such payment is due and payable, or to perform or observe any of the terms, conditions or obligations hereunder, shall constitute an event of default under this Note (each, a Default). In the event of a Default, the entire unpaid principal balance, together with accrued interest, shall immediately become due and payable and Partnership Lender may proceed at once to exercise any or all remedies available to Partnership Lender under this Note, at law or in equity. After any Default, and so long as such
1
Default remains uncured, at the option of Partnership Lender, the unpaid principal sum hereof shall bear interest at the rate of interest then applicable to the Loan hereunder plus three percent (3.00%) per annum, compounded monthly until paid. At such time as a judgment is obtained for any amounts owing under this Note, interest shall continue to accrue on the amount of the judgment at the rate of interest then applicable to the Loan hereunder plus three percent (3.00%) per annum. Borrower acknowledges that the foregoing, and other provisions of this Note, may result in compounding of interest and Borrower agrees thereto pursuant to the provisions of Nevada Revised Statutes 99.050.
All rights and remedies herein given to Partnership Lender are cumulative and not alternative, are in addition to all of the same which are available to Partnership Lender under all statutes at law or in equity, and may be exercised in any order or simultaneously, at Partnership Lenders sole election. Any forbearance or delay by Partnership Lender in exercising the same shall not be deemed to be a waiver thereof or of the right to exercise the same in the event of any subsequent Default or in the event of continuance of any existing Default, and the exercise of any right or partial exercise thereof shall not preclude the further exercise thereof, and the same shall continue in full force and effect until specifically waived by an instrument in writing executed by Partnership Lender.
Borrower also agrees to pay all costs of collection if suit is brought. Costs of collection include, without limitation, reasonable attorneys fees if this Note is placed in the hands of attorneys for collection (whether or not suit is brought to collect the amount past due), together with all court costs, investigative costs and other expenses incurred in the prosecution of any suit.
Borrower hereby waives and releases all errors, defects and imperfections in any proceedings instituted by Partnership Lender under the terms of this Note, as well as all benefit that might accrue to Borrower by virtue of any present or future laws providing for any stay of execution to be issued on any judgment recovered on this Note, and Borrower agrees that any real or personal property that may be levied upon pursuant to a judgment obtained by virtue hereof, on any writ of execution issued thereon, may be sold upon any such writ, in whole or in part, in any order desired by Partnership Lender.
This Note may only be amended, supplemented, modified or terminated by an instrument in writing executed by Partnership Lender and Borrower. No waiver of any term, covenant or provision of this Note shall be effective unless given in writing by the party waiving same, and, if so given by the party waiving same, shall only be effective in the specific instance in which given.
Borrower acknowledges that this Note and Borrowers obligations under this Note are and shall at all times continue to be absolute and unconditional in all respects, and shall at all times be valid and enforceable. This Note sets forth the entire agreement and understanding of Partnership Lender and Borrower. Borrower acknowledges that no oral or other agreements, understandings, representations or warranties exist with respect to this Note or with respect to the obligations of Borrower under this Note, except those specifically set forth in this Note. Borrower additionally agrees that this Note shall be subject to any and all applicable provisions of the Partnership Lenders limited partnership agreement.
2
This Note shall be governed by and construed in accordance with the laws of the State of Nevada, without reference to such States principles of conflicts of laws.
Borrower agrees to submit to personal jurisdiction in Clark County, Nevada, in any action or proceeding arising out of this Note and, in furtherance of such agreement, Borrower hereby agrees and consents that, without limiting other methods of obtaining jurisdiction, personal jurisdiction over Borrower in any such action or proceeding may be obtained within or without the jurisdiction of any court located in Nevada and that any process or notice of motion or other application to any such court in connection with any such action or proceeding may be served upon Borrower by registered or certified mail to or by personal service at the last known address of Borrower, whether such address be within or without the jurisdiction of any such court.
TO THE EXTENT PERMITTED BY LAW, BORROWER HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS NOTE, OR IN ANY WAY CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE DEALINGS OF BORROWER AND PARTNERSHIP LENDER WITH RESPECT TO THIS NOTE, OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BORROWER HEREBY AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY.
Every term and provision of this Note is intended to be severable. If any term or provision hereof is declared by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason whatsoever, such illegality, invalidity or unenforceability shall be treated as though the term or provision never existed and shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain in full force and effect.
Upon receipt by Borrower of written notice from Partnership Lender of the disappearance, loss, theft, destruction or mutilation of this Note, Borrower shall execute and deliver to Partnership Lender in lieu thereof, a replacement note in identical form to this Note and dated as of the date of this Note; provided that Partnership Lender shall indemnify Borrower from and against any loss, cost, damage, liability, expense or claim which Borrower may incur (including, without limitation, attorneys fees and costs) as a result thereof.
* * * Signatures Appear On Following Page * * *
3
IN WITNESS WHEREOF, the undersigned parties have caused this Secured Demand Promissory Note to be executed, delivered and effective as of the date first above written.
BORROWER:
THE LORENZO J. FERTITTA AND TERESA JO FERTITTA FAMILY TRUST
By: |
|
Name: Lorenzo J. Fertitta | ||
Its: Trustee |
PARTNERSHIP LENDER:
VICTORIA PARTNERS, LIMITED PARTNERSHIP
By: Fertitta Enterprises, Inc.
Its: General Partner
By: |
|
Name: John A. Hertig | ||||
Its: Treasurer |
[Signature Page to Secured Demand Promissory Note LP to VPLP]
Exhibit 18
Secured Demand Promissory Note
$1,500,000.00 | Las Vegas, Nevada | August 9, 2019 |
FOR VALUE RECEIVED, Frank J. Fertitta, III 2006 Irrevocable Trust (Borrower) promises to pay to Victoria Partners, Limited Partnership, a Nevada limited partnership (Partnership Lender), or order, at such place as Partnership Lender may from time to time in writing designate, the total principal sum of One Million Five Hundred Thousand and 00/100 Dollars ($1,500,000.00) (the Loan) plus interest thereon to accrue at the fluctuating rate per annum of the Federal Reserve discount rate in effect from day to day plus Thirty Five Hundredths of One Percent (0.35%), beginning as of the date set forth above.
Payment of principal and interest under this Secured Demand Promissory Note (this Note) shall be made in immediately available United States Dollars. Interest on this Note shall accrue at the rate of interest set forth above, including Default interest accruing hereunder, and shall continue to accrue at that same rate (except as otherwise provided herein) until Borrowers obligations under this Note have been satisfied in full.
Borrower shall make payments of interest monthly in arrears on the last business day of each month. All principal and accrued but unpaid interest is payable upon demand of Partnership Lender. If not demanded sooner by Partnership Lender, the entire remaining principal amount outstanding under this Note and all accrued and unpaid interest thereon shall be due and payable in full on the fourth anniversary of the date first above written.
Borrower shall have the right to prepay all or any portion of its obligation under this Note. All payments on this Note shall be applied first to accrued interest and then to principal. Until further notice in writing by Partnership Lender, all payments and notices to Partnership Lender hereunder shall be made to Victoria Partners, Limited Partnership, c/o John A. Hertig, 10801 W. Charleston Blvd., Suite 600, Las Vegas, NV 89135.
As security for Borrowers obligations under this Note, Borrower hereby pledges to Partnership Lender a lien on and security interest in Borrowers limited partnership interests in Partnership Lender. Borrower agrees not to allow the lien and security interest granted hereunder to become subordinate to any parties without Partnership Lenders prior written consent, until such time that Borrowers obligations to Partnership Lender under this Note have been satisfied in full.
Borrower and each surety, guarantor and endorser of this Note, jointly and severally and to the extent permitted by law, waive demand, presentment for payment, notice of dishonor, protest and notice of protest; waive any and all lack of diligence or delays in the collection or enforcement hereof; and consent that the time of payment may be extended or this Note renewed without notice and without releasing the undersigned or any such surety, guarantor or endorser.
Borrowers failure to make any payment as herein provided when such payment is due and payable, or to perform or observe any of the terms, conditions or obligations hereunder, shall constitute an event of default under this Note (each, a Default). In the event of a Default, the entire unpaid principal balance, together with accrued interest, shall immediately become due and payable and Partnership Lender may proceed at once to exercise any or all remedies available to Partnership Lender under this Note, at law or in equity. After any Default, and so long as such
1
Default remains uncured, at the option of Partnership Lender, the unpaid principal sum hereof shall bear interest at the rate of interest then applicable to the Loan hereunder plus three percent (3.00%) per annum, compounded monthly until paid. At such time as a judgment is obtained for any amounts owing under this Note, interest shall continue to accrue on the amount of the judgment at the rate of interest then applicable to the Loan hereunder plus three percent (3.00%) per annum. Borrower acknowledges that the foregoing, and other provisions of this Note, may result in compounding of interest and Borrower agrees thereto pursuant to the provisions of Nevada Revised Statutes 99.050.
All rights and remedies herein given to Partnership Lender are cumulative and not alternative, are in addition to all of the same which are available to Partnership Lender under all statutes at law or in equity, and may be exercised in any order or simultaneously, at Partnership Lenders sole election. Any forbearance or delay by Partnership Lender in exercising the same shall not be deemed to be a waiver thereof or of the right to exercise the same in the event of any subsequent Default or in the event of continuance of any existing Default, and the exercise of any right or partial exercise thereof shall not preclude the further exercise thereof, and the same shall continue in full force and effect until specifically waived by an instrument in writing executed by Partnership Lender.
Borrower also agrees to pay all costs of collection if suit is brought. Costs of collection include, without limitation, reasonable attorneys fees if this Note is placed in the hands of attorneys for collection (whether or not suit is brought to collect the amount past due), together with all court costs, investigative costs and other expenses incurred in the prosecution of any suit.
Borrower hereby waives and releases all errors, defects and imperfections in any proceedings instituted by Partnership Lender under the terms of this Note, as well as all benefit that might accrue to Borrower by virtue of any present or future laws providing for any stay of execution to be issued on any judgment recovered on this Note, and Borrower agrees that any real or personal property that may be levied upon pursuant to a judgment obtained by virtue hereof, on any writ of execution issued thereon, may be sold upon any such writ, in whole or in part, in any order desired by Partnership Lender.
This Note may only be amended, supplemented, modified or terminated by an instrument in writing executed by Partnership Lender and Borrower. No waiver of any term, covenant or provision of this Note shall be effective unless given in writing by the party waiving same, and, if so given by the party waiving same, shall only be effective in the specific instance in which given.
Borrower acknowledges that this Note and Borrowers obligations under this Note are and shall at all times continue to be absolute and unconditional in all respects, and shall at all times be valid and enforceable. This Note sets forth the entire agreement and understanding of Partnership Lender and Borrower. Borrower acknowledges that no oral or other agreements, understandings, representations or warranties exist with respect to this Note or with respect to the obligations of Borrower under this Note, except those specifically set forth in this Note. Borrower additionally agrees that this Note shall be subject to any and all applicable provisions of the Partnership Lenders limited partnership agreement.
2
This Note shall be governed by and construed in accordance with the laws of the State of Nevada, without reference to such States principles of conflicts of laws.
Borrower agrees to submit to personal jurisdiction in Clark County, Nevada, in any action or proceeding arising out of this Note and, in furtherance of such agreement, Borrower hereby agrees and consents that, without limiting other methods of obtaining jurisdiction, personal jurisdiction over Borrower in any such action or proceeding may be obtained within or without the jurisdiction of any court located in Nevada and that any process or notice of motion or other application to any such court in connection with any such action or proceeding may be served upon Borrower by registered or certified mail to or by personal service at the last known address of Borrower, whether such address be within or without the jurisdiction of any such court.
TO THE EXTENT PERMITTED BY LAW, BORROWER HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS NOTE, OR IN ANY WAY CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE DEALINGS OF BORROWER AND PARTNERSHIP LENDER WITH RESPECT TO THIS NOTE, OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BORROWER HEREBY AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY.
Every term and provision of this Note is intended to be severable. If any term or provision hereof is declared by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason whatsoever, such illegality, invalidity or unenforceability shall be treated as though the term or provision never existed and shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain in full force and effect.
Upon receipt by Borrower of written notice from Partnership Lender of the disappearance, loss, theft, destruction or mutilation of this Note, Borrower shall execute and deliver to Partnership Lender in lieu thereof, a replacement note in identical form to this Note and dated as of the date of this Note; provided that Partnership Lender shall indemnify Borrower from and against any loss, cost, damage, liability, expense or claim which Borrower may incur (including, without limitation, attorneys fees and costs) as a result thereof.
* * * Signatures Appear On Following Page * * *
3
IN WITNESS WHEREOF, the undersigned parties have caused this Secured Demand Promissory Note to be executed, delivered and effective as of the date first above written.
BORROWER:
FRANK J. FERTITTA, III 2006 IRREVOCABLE TRUST
By: |
|
Name: Lorenzo J. Fertitta | ||
Its: Trustee |
PARTNERSHIP LENDER:
VICTORIA PARTNERS, LIMITED PARTNERSHIP
By: Fertitta Enterprises, Inc.
Its: General Partner
By: |
|
Name: John A. Hertig | ||||
Its: Treasurer |
[Signature Page to Secured Demand Promissory Note LP to VPLP]
Exhibit 19
Secured Demand Promissory Note
$1,500,000.00 | Las Vegas, Nevada | August 9, 2019 |
FOR VALUE RECEIVED, Lorenzo J. Fertitta 2006 Irrevocable Trust (Borrower) promises to pay to Victoria Partners, Limited Partnership, a Nevada limited partnership (Partnership Lender), or order, at such place as Partnership Lender may from time to time in writing designate, the total principal sum of One Million Five Hundred Thousand and 00/100 Dollars ($1,500,000.00) (the Loan) plus interest thereon to accrue at the fluctuating rate per annum of the Federal Reserve discount rate in effect from day to day plus Thirty Five Hundredths of One Percent (0.35%), beginning as of the date set forth above.
Payment of principal and interest under this Secured Demand Promissory Note (this Note) shall be made in immediately available United States Dollars. Interest on this Note shall accrue at the rate of interest set forth above, including Default interest accruing hereunder, and shall continue to accrue at that same rate (except as otherwise provided herein) until Borrowers obligations under this Note have been satisfied in full.
Borrower shall make payments of interest monthly in arrears on the last business day of each month. All principal and accrued but unpaid interest is payable upon demand of Partnership Lender. If not demanded sooner by Partnership Lender, the entire remaining principal amount outstanding under this Note and all accrued and unpaid interest thereon shall be due and payable in full on the fourth anniversary of the date first above written.
Borrower shall have the right to prepay all or any portion of its obligation under this Note. All payments on this Note shall be applied first to accrued interest and then to principal. Until further notice in writing by Partnership Lender, all payments and notices to Partnership Lender hereunder shall be made to Victoria Partners, Limited Partnership, c/o John A. Hertig, 10801 W. Charleston Blvd., Suite 600, Las Vegas, NV 89135.
As security for Borrowers obligations under this Note, Borrower hereby pledges to Partnership Lender a lien on and security interest in Borrowers limited partnership interests in Partnership Lender. Borrower agrees not to allow the lien and security interest granted hereunder to become subordinate to any parties without Partnership Lenders prior written consent, until such time that Borrowers obligations to Partnership Lender under this Note have been satisfied in full.
Borrower and each surety, guarantor and endorser of this Note, jointly and severally and to the extent permitted by law, waive demand, presentment for payment, notice of dishonor, protest and notice of protest; waive any and all lack of diligence or delays in the collection or enforcement hereof; and consent that the time of payment may be extended or this Note renewed without notice and without releasing the undersigned or any such surety, guarantor or endorser.
Borrowers failure to make any payment as herein provided when such payment is due and payable, or to perform or observe any of the terms, conditions or obligations hereunder, shall constitute an event of default under this Note (each, a Default). In the event of a Default, the entire unpaid principal balance, together with accrued interest, shall immediately become due and payable and Partnership Lender may proceed at once to exercise any or all remedies available to Partnership Lender under this Note, at law or in equity. After any Default, and so long as such
1
Default remains uncured, at the option of Partnership Lender, the unpaid principal sum hereof shall bear interest at the rate of interest then applicable to the Loan hereunder plus three percent (3.00%) per annum, compounded monthly until paid. At such time as a judgment is obtained for any amounts owing under this Note, interest shall continue to accrue on the amount of the judgment at the rate of interest then applicable to the Loan hereunder plus three percent (3.00%) per annum. Borrower acknowledges that the foregoing, and other provisions of this Note, may result in compounding of interest and Borrower agrees thereto pursuant to the provisions of Nevada Revised Statutes 99.050.
All rights and remedies herein given to Partnership Lender are cumulative and not alternative, are in addition to all of the same which are available to Partnership Lender under all statutes at law or in equity, and may be exercised in any order or simultaneously, at Partnership Lenders sole election. Any forbearance or delay by Partnership Lender in exercising the same shall not be deemed to be a waiver thereof or of the right to exercise the same in the event of any subsequent Default or in the event of continuance of any existing Default, and the exercise of any right or partial exercise thereof shall not preclude the further exercise thereof, and the same shall continue in full force and effect until specifically waived by an instrument in writing executed by Partnership Lender.
Borrower also agrees to pay all costs of collection if suit is brought. Costs of collection include, without limitation, reasonable attorneys fees if this Note is placed in the hands of attorneys for collection (whether or not suit is brought to collect the amount past due), together with all court costs, investigative costs and other expenses incurred in the prosecution of any suit.
Borrower hereby waives and releases all errors, defects and imperfections in any proceedings instituted by Partnership Lender under the terms of this Note, as well as all benefit that might accrue to Borrower by virtue of any present or future laws providing for any stay of execution to be issued on any judgment recovered on this Note, and Borrower agrees that any real or personal property that may be levied upon pursuant to a judgment obtained by virtue hereof, on any writ of execution issued thereon, may be sold upon any such writ, in whole or in part, in any order desired by Partnership Lender.
This Note may only be amended, supplemented, modified or terminated by an instrument in writing executed by Partnership Lender and Borrower. No waiver of any term, covenant or provision of this Note shall be effective unless given in writing by the party waiving same, and, if so given by the party waiving same, shall only be effective in the specific instance in which given.
Borrower acknowledges that this Note and Borrowers obligations under this Note are and shall at all times continue to be absolute and unconditional in all respects, and shall at all times be valid and enforceable. This Note sets forth the entire agreement and understanding of Partnership Lender and Borrower. Borrower acknowledges that no oral or other agreements, understandings, representations or warranties exist with respect to this Note or with respect to the obligations of Borrower under this Note, except those specifically set forth in this Note. Borrower additionally agrees that this Note shall be subject to any and all applicable provisions of the Partnership Lenders limited partnership agreement.
2
This Note shall be governed by and construed in accordance with the laws of the State of Nevada, without reference to such States principles of conflicts of laws.
Borrower agrees to submit to personal jurisdiction in Clark County, Nevada, in any action or proceeding arising out of this Note and, in furtherance of such agreement, Borrower hereby agrees and consents that, without limiting other methods of obtaining jurisdiction, personal jurisdiction over Borrower in any such action or proceeding may be obtained within or without the jurisdiction of any court located in Nevada and that any process or notice of motion or other application to any such court in connection with any such action or proceeding may be served upon Borrower by registered or certified mail to or by personal service at the last known address of Borrower, whether such address be within or without the jurisdiction of any such court.
TO THE EXTENT PERMITTED BY LAW, BORROWER HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS NOTE, OR IN ANY WAY CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE DEALINGS OF BORROWER AND PARTNERSHIP LENDER WITH RESPECT TO THIS NOTE, OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BORROWER HEREBY AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY.
Every term and provision of this Note is intended to be severable. If any term or provision hereof is declared by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason whatsoever, such illegality, invalidity or unenforceability shall be treated as though the term or provision never existed and shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain in full force and effect.
Upon receipt by Borrower of written notice from Partnership Lender of the disappearance, loss, theft, destruction or mutilation of this Note, Borrower shall execute and deliver to Partnership Lender in lieu thereof, a replacement note in identical form to this Note and dated as of the date of this Note; provided that Partnership Lender shall indemnify Borrower from and against any loss, cost, damage, liability, expense or claim which Borrower may incur (including, without limitation, attorneys fees and costs) as a result thereof.
* * * Signatures Appear On Following Page * * *
3
IN WITNESS WHEREOF, the undersigned parties have caused this Secured Demand Promissory Note to be executed, delivered and effective as of the date first above written.
BORROWER:
LORENZO J. FERTITTA 2006 IRREVOCABLE TRUST
By: |
|
Name: Frank J. Fertitta, III | ||
Its: Trustee |
PARTNERSHIP LENDER:
VICTORIA PARTNERS, LIMITED PARTNERSHIP
By: Fertitta Enterprises, Inc.
Its: General Partner
By: |
|
Name: John A. Hertig | ||||
Its: Treasurer |
[Signature Page to Secured Demand Promissory Note LP to VPLP]
Exhibit 20
Secured Demand Promissory Note
$1,350,000.00 | Las Vegas, Nevada | August 12, 2019 |
FOR VALUE RECEIVED, Frank J. Fertitta, III 2006 Irrevocable Trust (Borrower) promises to pay to Victoria Partners, Limited Partnership, a Nevada limited partnership (Partnership Lender), or order, at such place as Partnership Lender may from time to time in writing designate, the total principal sum of One Million Three Hundred Fifty Thousand and 00/100 Dollars ($1,350,000.00) (the Loan) plus interest thereon to accrue at the fluctuating rate per annum of the Federal Reserve discount rate in effect from day to day plus Thirty Five Hundredths of One Percent (0.35%), beginning as of the date set forth above.
Payment of principal and interest under this Secured Demand Promissory Note (this Note) shall be made in immediately available United States Dollars. Interest on this Note shall accrue at the rate of interest set forth above, including Default interest accruing hereunder, and shall continue to accrue at that same rate (except as otherwise provided herein) until Borrowers obligations under this Note have been satisfied in full.
Borrower shall make payments of interest monthly in arrears on the last business day of each month. All principal and accrued but unpaid interest is payable upon demand of Partnership Lender. If not demanded sooner by Partnership Lender, the entire remaining principal amount outstanding under this Note and all accrued and unpaid interest thereon shall be due and payable in full on the fourth anniversary of the date first above written.
Borrower shall have the right to prepay all or any portion of its obligation under this Note. All payments on this Note shall be applied first to accrued interest and then to principal. Until further notice in writing by Partnership Lender, all payments and notices to Partnership Lender hereunder shall be made to Victoria Partners, Limited Partnership, c/o John A. Hertig, 10801 W. Charleston Blvd., Suite 600, Las Vegas, NV 89135.
As security for Borrowers obligations under this Note, Borrower hereby pledges to Partnership Lender a lien on and security interest in Borrowers limited partnership interests in Partnership Lender. Borrower agrees not to allow the lien and security interest granted hereunder to become subordinate to any parties without Partnership Lenders prior written consent, until such time that Borrowers obligations to Partnership Lender under this Note have been satisfied in full.
Borrower and each surety, guarantor and endorser of this Note, jointly and severally and to the extent permitted by law, waive demand, presentment for payment, notice of dishonor, protest and notice of protest; waive any and all lack of diligence or delays in the collection or enforcement hereof; and consent that the time of payment may be extended or this Note renewed without notice and without releasing the undersigned or any such surety, guarantor or endorser.
Borrowers failure to make any payment as herein provided when such payment is due and payable, or to perform or observe any of the terms, conditions or obligations hereunder, shall constitute an event of default under this Note (each, a Default). In the event of a Default, the entire unpaid principal balance, together with accrued interest, shall immediately become due and payable and Partnership Lender may proceed at once to exercise any or all remedies available to Partnership Lender under this Note, at law or in equity. After any Default, and so long as such
1
Default remains uncured, at the option of Partnership Lender, the unpaid principal sum hereof shall bear interest at the rate of interest then applicable to the Loan hereunder plus three percent (3.00%) per annum, compounded monthly until paid. At such time as a judgment is obtained for any amounts owing under this Note, interest shall continue to accrue on the amount of the judgment at the rate of interest then applicable to the Loan hereunder plus three percent (3.00%) per annum. Borrower acknowledges that the foregoing, and other provisions of this Note, may result in compounding of interest and Borrower agrees thereto pursuant to the provisions of Nevada Revised Statutes 99.050.
All rights and remedies herein given to Partnership Lender are cumulative and not alternative, are in addition to all of the same which are available to Partnership Lender under all statutes at law or in equity, and may be exercised in any order or simultaneously, at Partnership Lenders sole election. Any forbearance or delay by Partnership Lender in exercising the same shall not be deemed to be a waiver thereof or of the right to exercise the same in the event of any subsequent Default or in the event of continuance of any existing Default, and the exercise of any right or partial exercise thereof shall not preclude the further exercise thereof, and the same shall continue in full force and effect until specifically waived by an instrument in writing executed by Partnership Lender.
Borrower also agrees to pay all costs of collection if suit is brought. Costs of collection include, without limitation, reasonable attorneys fees if this Note is placed in the hands of attorneys for collection (whether or not suit is brought to collect the amount past due), together with all court costs, investigative costs and other expenses incurred in the prosecution of any suit.
Borrower hereby waives and releases all errors, defects and imperfections in any proceedings instituted by Partnership Lender under the terms of this Note, as well as all benefit that might accrue to Borrower by virtue of any present or future laws providing for any stay of execution to be issued on any judgment recovered on this Note, and Borrower agrees that any real or personal property that may be levied upon pursuant to a judgment obtained by virtue hereof, on any writ of execution issued thereon, may be sold upon any such writ, in whole or in part, in any order desired by Partnership Lender.
This Note may only be amended, supplemented, modified or terminated by an instrument in writing executed by Partnership Lender and Borrower. No waiver of any term, covenant or provision of this Note shall be effective unless given in writing by the party waiving same, and, if so given by the party waiving same, shall only be effective in the specific instance in which given.
Borrower acknowledges that this Note and Borrowers obligations under this Note are and shall at all times continue to be absolute and unconditional in all respects, and shall at all times be valid and enforceable. This Note sets forth the entire agreement and understanding of Partnership Lender and Borrower. Borrower acknowledges that no oral or other agreements, understandings, representations or warranties exist with respect to this Note or with respect to the obligations of Borrower under this Note, except those specifically set forth in this Note. Borrower additionally agrees that this Note shall be subject to any and all applicable provisions of the Partnership Lenders limited partnership agreement.
2
This Note shall be governed by and construed in accordance with the laws of the State of Nevada, without reference to such States principles of conflicts of laws.
Borrower agrees to submit to personal jurisdiction in Clark County, Nevada, in any action or proceeding arising out of this Note and, in furtherance of such agreement, Borrower hereby agrees and consents that, without limiting other methods of obtaining jurisdiction, personal jurisdiction over Borrower in any such action or proceeding may be obtained within or without the jurisdiction of any court located in Nevada and that any process or notice of motion or other application to any such court in connection with any such action or proceeding may be served upon Borrower by registered or certified mail to or by personal service at the last known address of Borrower, whether such address be within or without the jurisdiction of any such court.
TO THE EXTENT PERMITTED BY LAW, BORROWER HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS NOTE, OR IN ANY WAY CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE DEALINGS OF BORROWER AND PARTNERSHIP LENDER WITH RESPECT TO THIS NOTE, OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BORROWER HEREBY AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY.
Every term and provision of this Note is intended to be severable. If any term or provision hereof is declared by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason whatsoever, such illegality, invalidity or unenforceability shall be treated as though the term or provision never existed and shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain in full force and effect.
Upon receipt by Borrower of written notice from Partnership Lender of the disappearance, loss, theft, destruction or mutilation of this Note, Borrower shall execute and deliver to Partnership Lender in lieu thereof, a replacement note in identical form to this Note and dated as of the date of this Note; provided that Partnership Lender shall indemnify Borrower from and against any loss, cost, damage, liability, expense or claim which Borrower may incur (including, without limitation, attorneys fees and costs) as a result thereof.
* * * Signatures Appear On Following Page * * *
3
IN WITNESS WHEREOF, the undersigned parties have caused this Secured Demand Promissory Note to be executed, delivered and effective as of the date first above written.
BORROWER:
FRANK J. FERTITTA, III 2006 IRREVOCABLE TRUST
By: |
|
Name: Lorenzo J. Fertitta | ||
Its: Trustee |
PARTNERSHIP LENDER:
VICTORIA PARTNERS, LIMITED PARTNERSHIP
By: Fertitta Enterprises, Inc.
Its: General Partner
By: |
|
Name: John A. Hertig | ||||
Its: Treasurer |
[Signature Page to Secured Demand Promissory Note LP to VPLP]
Exhibit 21
Secured Demand Promissory Note
$1,350,000.00 | Las Vegas, Nevada | August 12, 2019 |
FOR VALUE RECEIVED, Lorenzo J. Fertitta 2006 Irrevocable Trust (Borrower) promises to pay to Victoria Partners, Limited Partnership, a Nevada limited partnership (Partnership Lender), or order, at such place as Partnership Lender may from time to time in writing designate, the total principal sum of One Million Three Hundred Fifty Thousand and 00/100 Dollars ($1,350,000.00) (the Loan) plus interest thereon to accrue at the fluctuating rate per annum of the Federal Reserve discount rate in effect from day to day plus Thirty Five Hundredths of One Percent (0.35%), beginning as of the date set forth above.
Payment of principal and interest under this Secured Demand Promissory Note (this Note) shall be made in immediately available United States Dollars. Interest on this Note shall accrue at the rate of interest set forth above, including Default interest accruing hereunder, and shall continue to accrue at that same rate (except as otherwise provided herein) until Borrowers obligations under this Note have been satisfied in full.
Borrower shall make payments of interest monthly in arrears on the last business day of each month. All principal and accrued but unpaid interest is payable upon demand of Partnership Lender. If not demanded sooner by Partnership Lender, the entire remaining principal amount outstanding under this Note and all accrued and unpaid interest thereon shall be due and payable in full on the fourth anniversary of the date first above written.
Borrower shall have the right to prepay all or any portion of its obligation under this Note. All payments on this Note shall be applied first to accrued interest and then to principal. Until further notice in writing by Partnership Lender, all payments and notices to Partnership Lender hereunder shall be made to Victoria Partners, Limited Partnership, c/o John A. Hertig, 10801 W. Charleston Blvd., Suite 600, Las Vegas, NV 89135.
As security for Borrowers obligations under this Note, Borrower hereby pledges to Partnership Lender a lien on and security interest in Borrowers limited partnership interests in Partnership Lender. Borrower agrees not to allow the lien and security interest granted hereunder to become subordinate to any parties without Partnership Lenders prior written consent, until such time that Borrowers obligations to Partnership Lender under this Note have been satisfied in full.
Borrower and each surety, guarantor and endorser of this Note, jointly and severally and to the extent permitted by law, waive demand, presentment for payment, notice of dishonor, protest and notice of protest; waive any and all lack of diligence or delays in the collection or enforcement hereof; and consent that the time of payment may be extended or this Note renewed without notice and without releasing the undersigned or any such surety, guarantor or endorser.
Borrowers failure to make any payment as herein provided when such payment is due and payable, or to perform or observe any of the terms, conditions or obligations hereunder, shall constitute an event of default under this Note (each, a Default). In the event of a Default, the entire unpaid principal balance, together with accrued interest, shall immediately become due and payable and Partnership Lender may proceed at once to exercise any or all remedies available to Partnership Lender under this Note, at law or in equity. After any Default, and so long as such
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Default remains uncured, at the option of Partnership Lender, the unpaid principal sum hereof shall bear interest at the rate of interest then applicable to the Loan hereunder plus three percent (3.00%) per annum, compounded monthly until paid. At such time as a judgment is obtained for any amounts owing under this Note, interest shall continue to accrue on the amount of the judgment at the rate of interest then applicable to the Loan hereunder plus three percent (3.00%) per annum. Borrower acknowledges that the foregoing, and other provisions of this Note, may result in compounding of interest and Borrower agrees thereto pursuant to the provisions of Nevada Revised Statutes 99.050.
All rights and remedies herein given to Partnership Lender are cumulative and not alternative, are in addition to all of the same which are available to Partnership Lender under all statutes at law or in equity, and may be exercised in any order or simultaneously, at Partnership Lenders sole election. Any forbearance or delay by Partnership Lender in exercising the same shall not be deemed to be a waiver thereof or of the right to exercise the same in the event of any subsequent Default or in the event of continuance of any existing Default, and the exercise of any right or partial exercise thereof shall not preclude the further exercise thereof, and the same shall continue in full force and effect until specifically waived by an instrument in writing executed by Partnership Lender.
Borrower also agrees to pay all costs of collection if suit is brought. Costs of collection include, without limitation, reasonable attorneys fees if this Note is placed in the hands of attorneys for collection (whether or not suit is brought to collect the amount past due), together with all court costs, investigative costs and other expenses incurred in the prosecution of any suit.
Borrower hereby waives and releases all errors, defects and imperfections in any proceedings instituted by Partnership Lender under the terms of this Note, as well as all benefit that might accrue to Borrower by virtue of any present or future laws providing for any stay of execution to be issued on any judgment recovered on this Note, and Borrower agrees that any real or personal property that may be levied upon pursuant to a judgment obtained by virtue hereof, on any writ of execution issued thereon, may be sold upon any such writ, in whole or in part, in any order desired by Partnership Lender.
This Note may only be amended, supplemented, modified or terminated by an instrument in writing executed by Partnership Lender and Borrower. No waiver of any term, covenant or provision of this Note shall be effective unless given in writing by the party waiving same, and, if so given by the party waiving same, shall only be effective in the specific instance in which given.
Borrower acknowledges that this Note and Borrowers obligations under this Note are and shall at all times continue to be absolute and unconditional in all respects, and shall at all times be valid and enforceable. This Note sets forth the entire agreement and understanding of Partnership Lender and Borrower. Borrower acknowledges that no oral or other agreements, understandings, representations or warranties exist with respect to this Note or with respect to the obligations of Borrower under this Note, except those specifically set forth in this Note. Borrower additionally agrees that this Note shall be subject to any and all applicable provisions of the Partnership Lenders limited partnership agreement.
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This Note shall be governed by and construed in accordance with the laws of the State of Nevada, without reference to such States principles of conflicts of laws.
Borrower agrees to submit to personal jurisdiction in Clark County, Nevada, in any action or proceeding arising out of this Note and, in furtherance of such agreement, Borrower hereby agrees and consents that, without limiting other methods of obtaining jurisdiction, personal jurisdiction over Borrower in any such action or proceeding may be obtained within or without the jurisdiction of any court located in Nevada and that any process or notice of motion or other application to any such court in connection with any such action or proceeding may be served upon Borrower by registered or certified mail to or by personal service at the last known address of Borrower, whether such address be within or without the jurisdiction of any such court.
TO THE EXTENT PERMITTED BY LAW, BORROWER HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS NOTE, OR IN ANY WAY CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE DEALINGS OF BORROWER AND PARTNERSHIP LENDER WITH RESPECT TO THIS NOTE, OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BORROWER HEREBY AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY.
Every term and provision of this Note is intended to be severable. If any term or provision hereof is declared by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason whatsoever, such illegality, invalidity or unenforceability shall be treated as though the term or provision never existed and shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain in full force and effect.
Upon receipt by Borrower of written notice from Partnership Lender of the disappearance, loss, theft, destruction or mutilation of this Note, Borrower shall execute and deliver to Partnership Lender in lieu thereof, a replacement note in identical form to this Note and dated as of the date of this Note; provided that Partnership Lender shall indemnify Borrower from and against any loss, cost, damage, liability, expense or claim which Borrower may incur (including, without limitation, attorneys fees and costs) as a result thereof.
* * * Signatures Appear On Following Page * * *
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IN WITNESS WHEREOF, the undersigned parties have caused this Secured Demand Promissory Note to be executed, delivered and effective as of the date first above written.
BORROWER:
LORENZO J. FERTITTA 2006 IRREVOCABLE TRUST
By: |
|
Name: Frank J. Fertitta, III | ||
Its: Trustee |
PARTNERSHIP LENDER:
VICTORIA PARTNERS, LIMITED PARTNERSHIP
By: Fertitta Enterprises, Inc.
Its: General Partner
By: |
|
Name: John A. Hertig | ||||
Its: Treasurer |
[Signature Page to Secured Demand Promissory Note LP to VPLP]
Exhibit 22
JOINT FILING AGREEMENT
This Agreement is made this 12th day of August, 2019, by and among each of the undersigned.
WHEREAS, each of the undersigned is required to file a Schedule 13D with respect to ownership of securities in Red Rock Resorts, Inc.;
NOW, THEREFORE, the undersigned agree to file only one Schedule 13D reflecting their combined beneficial ownership of securities in Red Rock Resorts, 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each of the undersigned has executed this Joint Filing Agreement as of the date first written above.
The Frank J. Fertitta, III and Jill Ann Fertitta Family Trust (Frank & Jill Fertitta, Co-Trustees) | ||
By: | /s/ John A. Hertig | |
Name: John A. Hertig | ||
Title: Attorney-in-Fact | ||
The Lorenzo J. Fertitta and Teresa Jo Fertitta Family Trust (Lorenzo & Teresa Fertitta, Co-Trustees) | ||
By: | /s/ John A. Hertig | |
Name: John A. Hertig | ||
Title: Attorney-in-Fact | ||
Frank J. Fertitta, III 2006 Irrevocable Trust (Lorenzo J. Fertitta, Trustee) | ||
By: | /s/ John A. Hertig | |
Name: John A. Hertig | ||
Title: Attorney-in-Fact | ||
Lorenzo J. Fertitta 2006 Irrevocable Trust (Frank J. Fertitta, III, Trustee) | ||
By: | /s/ John A. Hertig | |
Name: John A. Hertig | ||
Title: Attorney-in-Fact | ||
FBM Sub 1 LLC | ||
By: | /s/ John Hertig | |
Name: John Hertig | ||
Title: Attorney-in-Fact | ||
Fertitta Business Management LLC | ||
By: | /s/ John Hertig | |
Name: John Hertig | ||
Title: Attorney-in-Fact | ||
FI Station Investor LLC | ||
By: | /s/ John Hertig | |
Name: John Hertig | ||
Title: Attorney-in-Fact | ||
Fertitta Investment LLC | ||
By: | /s/ John Hertig | |
Name: John Hertig | ||
Title: Attorney-in-Fact |
[Signature Page 13D Joint Filing Agreement]
Fertitta Holdco LLC | ||
By: | /s/ John Hertig | |
Name: John Hertig | ||
Title: Attorney-in-Fact | ||
LNA Investments, LLC | ||
By: | /s/ John Hertig | |
Name: John Hertig | ||
Title: Attorney-in-Fact | ||
KVF Investments, LLC | ||
By: | /s/ John Hertig | |
Name: John Hertig | ||
Title: Attorney-in-Fact | ||
F & J Fertitta Family Business Trust | ||
By: | /s/ John Hertig | |
Name: John Hertig | ||
Title: Attorney-in-Fact | ||
L & T Fertitta Family Business Trust | ||
By: | /s/ John Hertig | |
Name: John Hertig | ||
Title: Attorney-in-Fact | ||
/s/ John Hertig as Attorney-in-Fact | ||
Frank J. Fertitta III | ||
/s/ John Hertig as Attorney-in-Fact | ||
Lorenzo J. Fertitta |
[Signature Page 13D Joint Filing Agreement]