SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Amendment No. 4)
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 23, 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
1,354,239 | |||||
(9) | Sole dispositive power
0 | |||||
(10) | Shared dispositive power
1,354,239 |
(11) |
Aggregate amount beneficially owned by each reporting person
1,354,239 | |||||
(12) | Check box if the aggregate amount in row (11) excludes certain shares
☐ | |||||
(13) | Percent of class represented by amount in row (11)
1.93% | |||||
(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
1,354,239 | |||||
(9) | Sole dispositive power
0 | |||||
(10) | Shared dispositive power
1,354,239 |
(11) |
Aggregate amount beneficially owned by each reporting person
1,354,239 | |||||
(12) | Check box if the aggregate amount in row (11) excludes certain shares
☐ | |||||
(13) | Percent of class represented by amount in row (11)
1.93% | |||||
(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
338,559 | |||||
(9) | Sole dispositive power
0 | |||||
(10) | Shared dispositive power
338,559 |
(11) |
Aggregate amount beneficially owned by each reporting person
338,559 | |||||
(12) | Check box if the aggregate amount in row (11) excludes certain shares
☐ | |||||
(13) | Percent of class represented by amount in row (11)
0.48% | |||||
(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
338,560 | |||||
(9) | Sole dispositive power
0 | |||||
(10) | Shared dispositive power
338,560 |
(11) |
Aggregate amount beneficially owned by each reporting person
338,560 | |||||
(12) | Check box if the aggregate amount in row (11) excludes certain shares
☐ | |||||
(13) | Percent of class represented by amount in row (11)
0.48% | |||||
(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
47,120,802 | |||||
(9) | Sole dispositive power
0 | |||||
(10) | Shared dispositive power
47,120,802 |
(11) |
Aggregate amount beneficially owned by each reporting person
47,120,802 | |||||
(12) | Check box if the aggregate amount in row (11) excludes certain shares
☐ | |||||
(13) | Percent of class represented by amount in row (11)
40.72% | |||||
(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
47,120,801 | |||||
(9) | Sole dispositive power
0 | |||||
(10) | Shared dispositive power
47,120,801 |
(11) |
Aggregate amount beneficially owned by each reporting person
47,120,801 | |||||
(12) | Check box if the aggregate amount in row (11) excludes certain shares
☐ | |||||
(13) | Percent of class represented by amount in row (11)
40.72% | |||||
(14) | Type of reporting person (see instructions)
IN |
16
SCHEDULE 13D
CUSIP No. 75700L108 | Page 17 of 21 Pages |
EXPLANATORY NOTE
This Amendment No. 4 to Schedule 13D (this Amendment No. 4) 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), as amended by Amendment No. 2 to Schedule 13D filed with the SEC on August 12, 2019 (Amendment No. 2), as amended by Amendment No. 3 to Schedule 13D filed with the SEC on August 16, 2019 (Amendment No. 3, and together with the Original Schedule 13D, Amendment No. 1 and Amendment No. 2, the Schedule 13D), as specifically set forth herein. Capitalized terms used but not defined in this Amendment No. 4 have the meanings given to such terms in the Original Schedule 13D, Amendment No. 1, Amendment No. 2 and Amendment No. 3, as the case may be.
Item 2. Identity and Background
The second paragraph of Item 2(a) is amended and restated to read as follows:
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 1,354,239 shares of Class A Common Stock, (v) the L&T Fertitta Family Trust is the record owner of 1,354,239 shares of Class A Common Stock, (vi) the FJF Irrevocable Trust is the record owner of 338,559 shares of Class A Common Stock, and (vii) the LJF Irrevocable Trust is the record owner of 338,560 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.
Item 3. Source and Amount of Funds or Other Consideration
Item 3 is amended by adding the following paragraph:
Between August 19, 2019 and August 23, 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 1,136,897 shares of Class A Common Stock for aggregate consideration of $21,978,275 (inclusive of broker fees). The purchases are funded primarily with 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, as well as from cash on hand. 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.
17
SCHEDULE 13D
CUSIP No. 75700L108 | Page 18 of 21 Pages |
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 |
1,354,239 | 1.93 | % | |||||
L&T Fertitta Family Trust |
1,354,239 | 1.93 | % | |||||
FJF Irrevocable Trust |
338,559 | 0.48 | % | |||||
LJF Irrevocable Trust |
338,560 | 0.48 | % | |||||
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 |
47,120,802 | 40.72 | % | |||||
Lorenzo J. Fertitta |
47,120,801 | 40.72 | % | |||||
Total for Group |
48,813,600 | 42.18 | % |
(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 | |||||||||||||
F&J Fertitta Family Trust |
August 14, 2019 | 146,000 | 18.839 | 18.440 | 19.050 | |||||||||||||
F&J Fertitta Family Trust |
August 15, 2019 | 40,800 | 17.988 | 17.920 | 18.020 | |||||||||||||
F&J Fertitta Family Trust |
August 16, 2019 | 104,680 | 18.499 | 17.995 | 18.965 | |||||||||||||
F&J Fertitta Family Trust |
August 19, 2019 | 640 | 19.576 | 19.520 | 19.620 | |||||||||||||
F&J Fertitta Family Trust |
August 21, 2019 | 10,000 | 19.600 | 19.600 | 19.600 | |||||||||||||
F&J Fertitta Family Trust |
August 23, 2019 | 444,119 | 19.295 | 19.100 | 19.730 | |||||||||||||
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 |
18
SCHEDULE 13D
CUSIP No. 75700L108 | Page 19 of 21 Pages |
L&T Fertitta Family Trust |
August 14, 2019 | 146,000 | 18.839 | 18.440 | 19.050 | |||||||||||||
L&T Fertitta Family Trust |
August 15, 2019 | 40,800 | 17.988 | 17.920 | 18.020 | |||||||||||||
L&T Fertitta Family Trust |
August 16, 2019 | 104,680 | 18.499 | 17.995 | 18.965 | |||||||||||||
L&T Fertitta Family Trust |
August 19, 2019 | 640 | 19.576 | 19.520 | 19.620 | |||||||||||||
L&T Fertitta Family Trust |
August 21, 2019 | 10,000 | 19.600 | 19.600 | 19.600 | |||||||||||||
L&T Fertitta Family Trust |
August 23, 2019 | 444,119 | 19.295 | 19.100 | 19.730 | |||||||||||||
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 | |||||||||||||
FJF Irrevocable Trust |
August 14, 2019 | 36,500 | 18.839 | 18.440 | 19.050 | |||||||||||||
FJF Irrevocable Trust |
August 15, 2019 | 10,200 | 17.988 | 17.920 | 18.020 | |||||||||||||
FJF Irrevocable Trust |
August 16, 2019 | 26,170 | 18.499 | 17.995 | 18.965 | |||||||||||||
FJF Irrevocable Trust |
August 19, 2019 | 160 | 19.576 | 19.520 | 19.620 | |||||||||||||
FJF Irrevocable Trust |
August 21, 2019 | 2,500 | 19.600 | 19.600 | 19.600 | |||||||||||||
FJF Irrevocable Trust |
August 23, 2019 | 111,029 | 19.295 | 19.100 | 19.730 | |||||||||||||
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 | |||||||||||||
LJF Irrevocable Trust |
August 14, 2019 | 36,500 | 18.839 | 18.440 | 19.050 | |||||||||||||
LJF Irrevocable Trust |
August 15, 2019 | 10,200 | 17.988 | 17.920 | 18.020 | |||||||||||||
LJF Irrevocable Trust |
August 16, 2019 | 26,170 | 18.499 | 17.995 | 18.965 | |||||||||||||
LJF Irrevocable Trust |
August 19, 2019 | 160 | 19.576 | 19.520 | 19.620 | |||||||||||||
LJF Irrevocable Trust |
August 21, 2019 | 2,500 | 19.600 | 19.600 | 19.600 | |||||||||||||
LJF Irrevocable Trust |
August 23, 2019 | 111,030 | 19.295 | 19.100 | 19.730 |
19
SCHEDULE 13D
CUSIP No. 75700L108 | Page 20 of 21 Pages |
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer
Item 6 is amended by adding the following:
On August 20, 2019, each of the Trust Direct Stockholders and the Lender converted each of the Promissory Notes previously issued by such Trust Direct Stockholder to the Lender into a single Secured Demand Grid Promissory Note (each, a Grid Note and collectively the Grid Notes). Each such Grid Note provided for the same terms as the Promissory Notes previously issued by the applicable Trust Direct Stockholder to the Lender.
Upon settlement of the Class A Common Stock purchased on August 19, 2019, August 21, 2019 and August 23, 2019, each Grid Note was or will be amended to include the loans issued under such Grid Note, which loans funded or will fund substantially all of the purchase price for such purchases.
The foregoing summary of the Grid Notes does not purport to be complete, and is qualified in its entirety by reference to the Grid Notes filed herewith as Exhibits 17 through 20 and incorporated herein by reference.
Item 7. Material to be Filed as Exhibits
Exhibit |
Description | |
Exhibit 1 | Joint Filing Agreement as required by Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended (incorporated by reference to Exhibit 22 to Amendment No. 2 to the Schedule 13D filed by certain of the Reporting Persons on August 12, 2019). | |
Exhibit 2 | 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 3 | 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 4 | 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 5 | 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 6 | 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 7 | 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 8 | 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 9 | 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 10 | 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). | |
Exhibit 11 | 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). |
20
SCHEDULE 13D
CUSIP No. 75700L108 | Page 21 of 21 Pages |
Exhibit 12 | Power of Attorney for The Frank J. Fertitta, III and Jill Ann Fertitta Family Trust (incorporated by reference to Exhibit 11 to Amendment No. 2 to the Schedule 13D filed by certain of the Reporting Persons on August 12, 2019). | |
Exhibit 13 | Power of Attorney for The Lorenzo J. Fertitta and Teresa Jo Fertitta Family Trust (incorporated by reference to Exhibit 12 to Amendment No. 2 to the Schedule 13D filed by certain of the Reporting Persons on August 12, 2019). | |
Exhibit 14 | Power of Attorney for Frank J. Fertitta, III 2006 Irrevocable Trust (incorporated by reference to Exhibit 13 to Amendment No. 2 to the Schedule 13D filed by certain of the Reporting Persons on August 12, 2019). | |
Exhibit 15 | Power of Attorney for Lorenzo J. Fertitta 2006 Irrevocable Trust (incorporated by reference to Exhibit 14 to Amendment No. 2 to the Schedule 13D filed by certain of the Reporting Persons on August 12, 2019). | |
Exhibit 16 | Power of Attorney for FBM Sub 1 LLC (incorporated by reference to Exhibit 15 to Amendment No. 2 to the Schedule 13D filed by certain of the Reporting Persons on August 12, 2019). | |
Exhibit 17 | Secured Demand Grid Promissory Note, dated August 20, 2019, issued by Lorenzo J. Fertitta 2006 Irrevocable Trust to Victoria Partners, Limited Partnership. | |
Exhibit 18 | Secured Demand Grid Promissory Note, dated August 20, 2019, issued by The Frank J. Fertitta, III and Jill Ann Fertitta Family Trust to Victoria Partners, Limited Partnership. | |
Exhibit 19 | Secured Demand Grid Promissory Note, dated August 20, 2019, issued by The Lorenzo J. Fertitta and Teresa Jo Fertitta Family Trust to Victoria Partners, Limited Partnership. | |
Exhibit 20 | Secured Demand Grid Promissory Note, dated August 20, 2019, issued by Frank J. Fertitta, III 2006 Irrevocable Trust to Victoria Partners, Limited Partnership. |
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 26, 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 17
Secured Demand Grid Promissory Note
Las Vegas, Nevada | August 20, 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 principal amount of each of the loans (collectively, the Loans) outstanding hereunder from time to time, as set forth at Schedule I hereto, 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 of the applicable Loan.
Upon request of Borrower, Partnership Lender may in its discretion from time to time make Loans to Borrower evidenced by this Secured Demand Grid Promissory Note (this Note). All Loans evidenced by this Note shall be entered by Partnership Lender on Schedule I from time to time. Partnership Lender shall enter and record on Schedule I attached hereto the amount of each Loan made under this Note. Each such change to Schedule I shall be approved by Borrower. In the event of an inconsistency between Schedule I and the books and records of Partnership Lender, the books and records of Partnership Lender shall control, and in particular the failure to reflect the making of a Loan on Schedule I shall not impair the obligation of Borrower to repay such Loan or the inclusion of such Loan in the obligations secured pursuant to this Note.
As of the date of this Note, there are several outstanding prior loans made by Partnership Lender to Borrower on the same terms and conditions, and secured by the same collateral, as set forth in this Note. Borrower and Partnership Lender agree that by virtue of the listing of such prior loans on Schedule I, (i) such prior loans shall for all purposes be deemed made under and shall be evidenced by this Note as due, owing and unpaid obligations of Borrower to Partnership Lender, (ii) each prior note having a face amount and date set forth on Schedule I is hereby acknowledged by Partnership Lender to be cancelled and replaced by this Note, (iii) all accrued and unpaid interest that is outstanding as of the date first set forth above in respect of any of the prior loans listed on Schedule I is now due, owing and unpaid under this Note, and (iv) Borrower acknowledges that Partnership Lenders books and records in respect of such prior loans are accurate as of the date first set forth above.
Payment of principal and interest under 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.
1
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 of the Loans, 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 Default remains uncured, at the option of Partnership Lender, the unpaid principal amount of the Loans shall bear interest at the rate of interest then applicable to the Loans 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 Loans 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.
2
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 Partnership Lenders limited partnership agreement.
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.
3
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 * * *
4
IN WITNESS WHEREOF, the undersigned parties have caused this Secured Demand Grid 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 Grid Promissory Note LP to VPLP]
SCHEDULE I*
Date of Loan |
Amount of Loan (U.S. Dollars) ($) |
Borrower Confirmation |
* | (includes loans outstanding prior to the date of this Note) |
[Schedule I to Secured Demand Grid Promissory Note LP to VPLP]
[Lorenzo J. Fertitta 2006 Irrevocable Trust]
Exhibit 18
Secured Demand Grid Promissory Note
Las Vegas, Nevada |
August 20, 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 principal amount of each of the loans (collectively, the Loans) outstanding hereunder from time to time, as set forth at Schedule I hereto, 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 of the applicable Loan.
Upon request of Borrower, Partnership Lender may in its discretion from time to time make Loans to Borrower evidenced by this Secured Demand Grid Promissory Note (this Note). All Loans evidenced by this Note shall be entered by Partnership Lender on Schedule I from time to time. Partnership Lender shall enter and record on Schedule I attached hereto the amount of each Loan made under this Note. Each such change to Schedule I shall be approved by Borrower. In the event of an inconsistency between Schedule I and the books and records of Partnership Lender, the books and records of Partnership Lender shall control, and in particular the failure to reflect the making of a Loan on Schedule I shall not impair the obligation of Borrower to repay such Loan or the inclusion of such Loan in the obligations secured pursuant to this Note.
As of the date of this Note, there are several outstanding prior loans made by Partnership Lender to Borrower on the same terms and conditions, and secured by the same collateral, as set forth in this Note. Borrower and Partnership Lender agree that by virtue of the listing of such prior loans on Schedule I, (i) such prior loans shall for all purposes be deemed made under and shall be evidenced by this Note as due, owing and unpaid obligations of Borrower to Partnership Lender, (ii) each prior note having a face amount and date set forth on Schedule I is hereby acknowledged by Partnership Lender to be cancelled and replaced by this Note, (iii) all accrued and unpaid interest that is outstanding as of the date first set forth above in respect of any of the prior loans listed on Schedule I is now due, owing and unpaid under this Note, and (iv) Borrower acknowledges that Partnership Lenders books and records in respect of such prior loans are accurate as of the date first set forth above.
Payment of principal and interest under 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.
1
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 of the Loans, 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 Default remains uncured, at the option of Partnership Lender, the unpaid principal amount of the Loans shall bear interest at the rate of interest then applicable to the Loans 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 Loans 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.
2
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 Partnership Lenders limited partnership agreement.
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.
3
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 * * *
4
IN WITNESS WHEREOF, the undersigned parties have caused this Secured Demand Grid 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 Grid Promissory Note LP to VPLP]
SCHEDULE I*
Date of Loan |
Amount of Loan (U.S. Dollars) ($) |
Borrower Confirmation |
* | (includes loans outstanding prior to the date of this Note) |
[Schedule I to Secured Demand Grid Promissory Note LP to VPLP]
[The Frank J. Fertitta, III and Jill Ann Fertitta Family Trust]
Exhibit 19
Secured Demand Grid Promissory Note
Las Vegas, Nevada |
August 20, 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 principal amount of each of the loans (collectively, the Loans) outstanding hereunder from time to time, as set forth at Schedule I hereto, 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 of the applicable Loan.
Upon request of Borrower, Partnership Lender may in its discretion from time to time make Loans to Borrower evidenced by this Secured Demand Grid Promissory Note (this Note). All Loans evidenced by this Note shall be entered by Partnership Lender on Schedule I from time to time. Partnership Lender shall enter and record on Schedule I attached hereto the amount of each Loan made under this Note. Each such change to Schedule I shall be approved by Borrower. In the event of an inconsistency between Schedule I and the books and records of Partnership Lender, the books and records of Partnership Lender shall control, and in particular the failure to reflect the making of a Loan on Schedule I shall not impair the obligation of Borrower to repay such Loan or the inclusion of such Loan in the obligations secured pursuant to this Note.
As of the date of this Note, there are several outstanding prior loans made by Partnership Lender to Borrower on the same terms and conditions, and secured by the same collateral, as set forth in this Note. Borrower and Partnership Lender agree that by virtue of the listing of such prior loans on Schedule I, (i) such prior loans shall for all purposes be deemed made under and shall be evidenced by this Note as due, owing and unpaid obligations of Borrower to Partnership Lender, (ii) each prior note having a face amount and date set forth on Schedule I is hereby acknowledged by Partnership Lender to be cancelled and replaced by this Note, (iii) all accrued and unpaid interest that is outstanding as of the date first set forth above in respect of any of the prior loans listed on Schedule I is now due, owing and unpaid under this Note, and (iv) Borrower acknowledges that Partnership Lenders books and records in respect of such prior loans are accurate as of the date first set forth above.
Payment of principal and interest under 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.
1
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 of the Loans, 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 Default remains uncured, at the option of Partnership Lender, the unpaid principal amount of the Loans shall bear interest at the rate of interest then applicable to the Loans 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 Loans 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.
2
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 Partnership Lenders limited partnership agreement.
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.
3
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 * * *
4
IN WITNESS WHEREOF, the undersigned parties have caused this Secured Demand Grid 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 Grid Promissory Note LP to VPLP]
SCHEDULE I*
Date of Loan |
Amount of Loan (U.S. Dollars) ($) |
Borrower Confirmation |
* | (includes loans outstanding prior to the date of this Note) |
[Schedule I to Secured Demand Grid Promissory Note LP to VPLP]
[The Lorenzo J. Fertitta and Teresa Jo Fertitta Family Trust]
Exhibit 20
Secured Demand Grid Promissory Note
Las Vegas, Nevada | August 20, 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 principal amount of each of the loans (collectively, the Loans) outstanding hereunder from time to time, as set forth at Schedule I hereto, 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 of the applicable Loan.
Upon request of Borrower, Partnership Lender may in its discretion from time to time make Loans to Borrower evidenced by this Secured Demand Grid Promissory Note (this Note). All Loans evidenced by this Note shall be entered by Partnership Lender on Schedule I from time to time. Partnership Lender shall enter and record on Schedule I attached hereto the amount of each Loan made under this Note. Each such change to Schedule I shall be approved by Borrower. In the event of an inconsistency between Schedule I and the books and records of Partnership Lender, the books and records of Partnership Lender shall control, and in particular the failure to reflect the making of a Loan on Schedule I shall not impair the obligation of Borrower to repay such Loan or the inclusion of such Loan in the obligations secured pursuant to this Note.
As of the date of this Note, there are several outstanding prior loans made by Partnership Lender to Borrower on the same terms and conditions, and secured by the same collateral, as set forth in this Note. Borrower and Partnership Lender agree that by virtue of the listing of such prior loans on Schedule I, (i) such prior loans shall for all purposes be deemed made under and shall be evidenced by this Note as due, owing and unpaid obligations of Borrower to Partnership Lender, (ii) each prior note having a face amount and date set forth on Schedule I is hereby acknowledged by Partnership Lender to be cancelled and replaced by this Note, (iii) all accrued and unpaid interest that is outstanding as of the date first set forth above in respect of any of the prior loans listed on Schedule I is now due, owing and unpaid under this Note, and (iv) Borrower acknowledges that Partnership Lenders books and records in respect of such prior loans are accurate as of the date first set forth above.
Payment of principal and interest under 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.
1
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 of the Loans, 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 Default remains uncured, at the option of Partnership Lender, the unpaid principal amount of the Loans shall bear interest at the rate of interest then applicable to the Loans 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 Loans 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.
2
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 Partnership Lenders limited partnership agreement.
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.
3
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 * * *
4
IN WITNESS WHEREOF, the undersigned parties have caused this Secured Demand Grid 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 Grid Promissory Note LP to VPLP]
SCHEDULE I*
Date of Loan |
Amount of Loan (U.S. Dollars) ($) |
Borrower Confirmation |
* | (includes loans outstanding prior to the date of this Note) |
[Schedule I to Secured Demand Grid Promissory Note LP to VPLP]
[Frank J. Fertitta, III 2006 Irrevocable Trust]