Jail Time Coming for Walter & Kelly?

Dan Noyes on Ng’s Fate:

The charging document, “the United States of America versus Walter Ng and Kelly Ng,” says they, in effect, looted the funds by making repeated cash withdrawals. The Ng’s are charged with “structuring transactions for the purpose of evading a reporting requirement;” 11 counts for Walter, 20 for Kelly. Each count carries a possible 10 years in prison and a $500,000 fine.

Quick math:

  • Walter 11×10 = 110 years, $500,000 fine
  • Kelly 20×10 = 200 years, $500,000 fine

May they live that long to serve out their potential prison terms….

Where’s Bruce, we ask?

Courtesty KGO

Courtesty KGO

While many of us are beyond the age when a tax write off is helpful, it may provide solace for some.  John Robie’s message to everyone who got ripped off:  KEEP UP THE FIGHT.  Anyone who invested in RE Loans, RE Reno, or Mortgage Fund ’08 needs each and every one of you to stay strong and keep the pressure on.  Kudos to Brown and Bernard Wittenburg, amongst many others, for their efforts.

Finally, thanks to Dan Noyes for being the only reporter in the NATION who has stayed on top of this story.

http://abclocal.go.com/kgo/video?id=9273735&pid=9273730

RE LOANS FILES FOR BANKRUPTCY PROTECTION

RE Loans filed for bankruptcy.  While this was inevitable, no doubt, it’s still a shock to the system.  Despite the fact that it’s our money, our lives and our futures, the real bankrupt entity is the Ng Family Dynasty.  They’re morally bankrupt.  They’re ethically bankrupt.  Yet they’re still out there doing business and tricking more suckers like us out of their hard-earned savings.

Maybe Led Zepplin said it best in “When the levee breaks”

If it keeps on rainin’, levee’s goin’ to break,
When The Levee Breaks I’ll have no place to stay.
Mean old levee taught me to weep and moan,
Got what it takes to make a mountain man leave his home

Equitatus posted the following a few minutes ago: Continue reading

Keep Your Eye On The Ball

Or don’t.

Just know that the Siena story isn’t simply history.  It is a story that is constantly evolving and unfolding right before our very eyes.  It is an amazingly instructive story that can only help us if we pay attention.  Continue reading

The Siena Saga Continues

Aram, King Kong, Arent Fox and Barney are not fulfilling their end of the bargain – and it’s likely costing us all.

Barney’s Failed Experiment – The Siena…where the fun never ends…

Interested in staying up-to-speed on the Siena?  Click on the two links below and let us know if you can find any items of interest:

Cash Flow July 2010

Cash Flow August 2010

RE Reno Seven Months Later…

On May 14, 2009 Barney Ng wrote the following to RE Reno investors:

I recognize and appreciate the trust that you as an investor have placed in me in originally providing this Loan to the Siena, and because of this I am committed to the pay-off of the loan.

Barney’s commitment to paying off the loan should be lauded.  His follow-through, however, is laughable (so is yours, Walter – you, too, signed the personal guarantee).  Barney continues… Continue reading

Barney Being Bad

We’ve had a lot of action here today.  Why not end the day on a positive (unless your name is Barney Ng).  An obscure blogger sent the following to us today:

CLICK HERE

 

The Long Trail Of Lies Continues

Walter’s letter to RE Reno investors, dated November 11, 2010, states that the sale of the Siena “has not closed as of November 15, 2010.”  That’s just the beginning of the absurdity contained within Walter’s letter, found HERE.

Walter states that “it appears likely that the aggregate distribution to R.E. Reno from the sale proceeds will be in the range of $2 million to $2.5 million.”  Is Walter so senile as to actually believe that RER will command over half of the sale price when companies like IGT, Konami Gaming and the various city and state agencies are all vying for the proceeds?  This is just another case of half-truths and nonsensical blue sky B.S.

Continue reading

The ‘Mourning’ After

Rage faded to disappointment overnight, but returned with a vengeance this morning.  The realization (or was it a reminder?) that the valuations provided by the NG family aren’t simply inflated, but greatly exaggerated, hit like a ton of bricks.  Weissenborn and his high-priced team have been noticeably quiet.  They apparently don’t have time to update us on anything, let alone the great financial loss we sustained yesterday.  Arent Fox made money.  Stephanie & Matthew Kelly made a few bucks.  So did Innovation Capital, to the tune of $300,000 plus consulting fees of $10,000 per month.  We, however, lost everything unless, of course, you believe in divine intervention.

Continue reading

Siena Auction TODAY – Rambling Thoughts and Questions

From REreno:

“So tomorrow is the auction. I’m a bit of an insider and have been following the activity closely. There was only one party who conducted a thorough due diligence inspection of the Siena as far as I can tell (I read vanity plates and the contractor signs on the F-150s in the parking lot). I think the opening bid will be $1. And I have no indication that there is a back up bidder. I don’t think that RE Reno or Loans has the deep pockets anymore to enter the fray. Meaning you investors will be wiped out 100%.”

We know Konami Gaming filed another objection yesterday.  We read what REreno wrote above.

WHAT DOES THIS MEAN?


Continue reading

Siena Watch – UPDATE

Per the RGJ’s Ray Hagar this morning:

The auction of the Siena Hotel Casino in downtown Reno will take place next week in a Reno courtroom, where a national investment banking firm will try to sell the downtown resort that recently closed after a long string of financial problems.

“The reality is that the Siena has ceased operations and we are going to sell this in a bulk sale in one transaction to a singular buyer,” said Matt Sodl, managing director of Innovation Capital LLC in Los Angeles. “It will be a turn-key operation for that buyer and that buyer can either run it as it were, with the hotel and casino, or the buyer can decided if they want to operate a casino there or not.”

Those interested in participating the Nov. 10 auction are asked by Monday noon to submit a $250,000 deposit by wire transfer, evidence of financial wherewithal, a signed non-collusion affidavit and a mark-up of the Debtors’ form purchase agreement.

One-on-one tours of the property will be held on Tuesday with the auction Wednesday in the U.S. Bankruptcy Court of Judge Gregg Zive.

“We have marketed this thing far and wide and have a lot of interest in this asset,” Sodl said. “We have had a lot of interest from in-market competitors to buyers who are looking to get involved in the Reno market.”

Siena Watch – Update

It appears as if the Siena will be put on the auction block. No “binding, acceptable offer[s]” were made to buy the property.

Here is the closing paragraph from the Arent Fox filing:

WHEREFORE, based on the foregoing, the Debtors respectfully request that the Court enter an order: (a) establishing auction procedures with respect to the sale of the Debtors’ real and personal property; (b) approving and authorizing the sale by auction of the Debtors’ real property free and clear of liens, claims, interests, and encumbrances, subject to higher and better offers, (c) approving the assumption and assignment of certain unexpired leases and executory contracts to the winning bidder and establishing the cure amounts, if any, payable under such Assumed Agreements, or, in the alternative, approving the rejection of the Debtors’ unexpired leases and executory contracts to the extent such agreements are not assumed and assigned to the winning bidder, (d) approving that certain addendum to Innovation’s engagement letter dated October 28, 2010; (e) waiving the 14 day stay provided in Rule 6004(h); and (f) granting such other and further relief the Court deems just and proper.

Continue reading

Barney Finally Called On His High Jinx

 On October 6, 2010 we discussed Barney’s Supplemental Statement filing.  This filing asked the bankruptcy court to allow Barney’s group to hire a few firms, amongst them the Kelly Law Group.  KLG was to provide legal services to the Siena.  As we all know, the Kelly Law Group is run by (virtual) legal dynamos Stephanie & Matthew Kelly, also known as Barney’s daughter and son-in-law. 


While the SEC allowed its employees to spend many of their office hours watching pornography on the internet instead of prosecuting the NG family and Bruce Horwitz, the lawyers in the Office of The U.S. Trustee were working hard, as evidenced by their October 20, 2010 filing objecting to the arrangement between Barney NG and the Kellys.  The Attorneys for the Acting U.S. Trustee August B. Landis deserve a standing ovation thus far.

In 13 easy-to-comprehend pages, Landis’ attorneys spell out exactly why the sweetheart deal Barney put in place with his family doesn’t pass muster and would have been denied by Judge Newsome had the Siena not shut down earlier this week.  It is comforting to finally see Barney take a right hook to the chin.  Perhaps he didn’t realize he’d get called on his bullshit.  This isn’t the bush leagues anymore, Barney.  You can no longer make up the rules as you go along, enriching yourself and those you deem worthy.  You are now playing in the big leagues.  Everything you do shows up on PACER.  Sure, the RGJ and other newspapers may not cover ever move you make, but you can be certain the team behind http://www.barkinvestors.blogspot.com will.  A simple Google search leads people to this website.  The web traffic shows people are coming to this website often, looking for updates on your latest transgressions.  You and your Bar-K cohorts fooled us for years.  Those days are over.

Getting back to the Landis filing, here are the salient points:

RELEVANT FACTS:


1.  Matthew Kelly is Barney Ng’s son-in-law and grand-son-in-law to Walter Ng.
2.  Barney Ng is the managing member of each of the debtors and has served in that capacity since May 8, 1998.
3.  Barney Ng is the 100% owner of Wild Game Ng, LLC.
4.  Barney Ng is the sole unsecured creditor for Hi-Five Enterprises, LLC ($75,000).
5.  Barney Ng and Walter Ng are co-debtors with One South Lake Street, LLC on the secured note to RE Reno, LLC.
6.  Walter Ng is the registered agent and manager of One South Lake Street, LLC.
7.  The Kelly Law Group – Matt Kelly was paid $4,656.70 on the petition date.
8.  Matthew Kelly is not licensed to practice law in Nevada, only California.
9.  The Kelly Law Group, LLP is “a virtual law firm.”
10.  Although the Application states that the Applicant was employed since December 2009, the Engagement Letter is dated July 22, 2010.
11.  Barney Ng’s testimony at the 341 hearing state in-part:
      a.  Matthew Kelly was employed on an “oral basis before the bankruptcies were filed “because he’s my son-in-law”;
      b.  the flat fee rate of $7,000 per month is a “family discount”;
      c.  Matthew Kelly was employed by Barney Ng on numerous personal matters;
      d.  Matthew Kelly was in-house counsel for Bar-K, Inc., an entity owned by Barney Ng and where Barney Ng was also employed;
      e.  Matthew Kelly left Bar-K, Inc. employment when Barney Ng left Bar-K, Inc. employment;
      f.  Walter Ng and Barney Ng’s brother were also involved with Bar-K, Inc.;
     g.  initially, Matthew Kelly was working on mostly personal issues for Barney Ng (70% of his time), not the Debtors; and
      h.  Barney Ng has an unsecured claim of approximately $35 to $36 million, that he intends to subordinate to other unsecured claims.
12.  The first application to employ the Applicant was filed on September 8, 2010, forty-nine (49) days after the petitions were filed.

Whew.  That’s a lot to digest, but we’re not done yet!

In the “Application Of Authorities To The Relevant Facts” section of the filing, Landis’ team describes  why the Kelly Law Group is not eligible to receive Barney’s rich handout.

 A professional in a bankruptcy case should not be put in the position of having to divide his loyalties.  Matthew Kelly, as Barney Ng’s son-in-law, is an insider and therefore is NOT a disinterested person. 

The Application and the accompanying verified statement of Applicant and Barney Ng, do not adequately disclose the significant connections between the Applicant, Barney Ng and Walter Ng. 

Additionally, Applicant gave a less than full disclosure that his “four years working in-house for one of California’s largest private commercial real estate lenders” was Bar-K, Inc., a company that is owned by Barney Ng and also involved Barney Ng, Walter Ng and Barney Ng’s brother.  Applicant’s statement that he “is a disinterested person as that term is defined in 11 U.S.C. § 101(14),” shows a lack of understanding of and appreciation for the requirements of disclosure by professionals working for a bankruptcy estate.

Applicant’s legal abilities are not unique or extraordinary enough to warrant overlooking the obvious concerns regarding his allegiance to his family over the interests of the estates.

Allow us to summarize:

1.  The U.S. Trustee and his staff won’t stand for Barney’s bovine feces.
2.  Matthew Kelly attested to the fact that he and his firm would be a “disinterested” party as required by law.  Landis called him on his blatant lie.  The California State Bar will want to look into this ethical breach.
3.  Barney’s $7,000 per month gravy train broke down and became unhitched.
4.  How much would this contract cost if the ‘family discount’ weren’t applied?
4.  We still haven’t recovered a single cent of our investment, unlike favored investors Leonard Epstein and Phillip Tagami.

Please add your own analysis below in the comments section.

**BREAKING NEWS** SIENA HOTEL SHUTTERED

Inside sources report that the Siena will close at noon today. 

This page will be updated as the story unfolds.

Per a document filed by Hi-Five’s attorneys yesterday:


“…liquidity constraints have required that the Debtors shutdown their hotel operation until adequate operating capital can be obtained. The Debtors intend to complete their current negotiations no later than October 29, 2010, at which time they will either seek Court approval of a transaction that will provide for the reopening of the casino or reposition the Cases consistent with a longterm shut down of the business and the marketing and sale of the real estate asset. Consistent with this  repositioning, the Debtors hereby withdraw certain of the motions and applications currently set for hearing on October 21, 2010.

“On October 8, 2010, the Debtors were faced with a serious liquidity crisis precipitated by their inability to pay current invoices due to NV Energy with respect to their utility services. The Debtors considered a full shutdown of the Siena at that time. However, several investors remained interested in financing the property’s operations, even on a very compressed timeframe. Accordingly, in order to allow these negotiations to further develop, the Debtors took the interim step of closing the gaming floor at the Siena, thereby eliminating their
minimum bankroll requirement and freeing up cash to pay various operating expenses, including outstanding utility bills, Nevada gaming taxes, and certain insurance premiums.  This drastic step provided the company and Innovation with additional time to continue dialog with three interested investors. While one of those parties declined to go forward for reasons unrelated to the Siena, two others have remained in active negotiations with the Debtors and their advisors. However, due in part to the loss of revenue precipitated by the closing of the gaming floor, the Debtors have quite simply run out of time and money. As of October 20, 2010, they concluded that they are unable to continue to fund operations while these negotiations play out, and the Siena is currently in the process of being shutdown on at least an interim basis.”

We will keep you posted on all further developments.

Links Galore:

Reno Gazette Journal
Channel 4
Channel 2
KOLO TV
Las Vegas Sun
Siena’s own website
Letter To Siena Employees
REreno blog

PHOTOS:

Siena BK Venue Change Confirmed

The latest filing from Barney’s attorneys lists the following:


Hearing
DATE: October 21, 2010
TIME: 11:00 a.m.
PLACE: 300 Booth Street, Courtroom 3
Reno, NV 89509

The judge is the Honorable Gregg W. Zive .  Zive is also handling the Station Casinos BK.


The venue change is good news.  It takes the filing out of Barney’s backyard and moves it to Reno, the location of the Siena.  If you happen to be in Reno on the 21st, please drop on by 300 Booth Street, Courtroom 3.  It should be rather interesting.

Here’s the meat of the filing, which was filed in response to the objections raised by Konami Gaming:

Konami, who had not previously raised concerns with respect to the Lease Motion and therefore was not a party to the Stipulation, filed an objection to the Lease Motion. The Debtors submit that Konami’s objections and concerns have been addressed in full by the Stipulation except for Konami’s unfounded request that it be insulated from potential disgorgement of post-petition payments it receives from the Debtors in the event that Wild Game ultimately lacks the funds necessary to pay One South on account of the administrative claim granted to it under the Stipulation.

 The Debtors submit that the issue of disgorgement is premature since the Stipulation merely
alleviates Wild Game from having to make full Contract Rent (as that term is defined in the
Stipulation) payments for a limited period of time , thereby allowing Wild Game to pay trade creditors and contract parties such as Konami, and the Stipulation otherwise reserves the
rights of parties-in-interest and establishes a framework for the intercompany claims between
Wild Game and One South to be resolved at a later date.

CONCLUSION

WHEREFORE, based on the foregoing, the Debtors respectfully ask that this Court grant the Lease Motion with the modifications as reflected in the Stipulation.

 Our conclusion?  Let’s see how Zive rules on this issue, as well as the $4,000/month payments to Matthew Kelly.  The half a million a month payments from Wild Game Ng to One South Lake would be sliced to a “mere” $11,000, but one thing is clear – Barney still wants to be paid by Barney.

Please feel free to share your thoughts and opinions in the comments section below.

Siena GM Clyde Callicott: "The staff and management of the Siena have made a major commitment to you."

The August 2, 2010 Siena Newsletter from Mr. Callicott speaks of such good things to come.  Do you remember all the way back in August when the Siena was on top of the world?  Yeah, neither do we.  Clyde teases us with this statement:  “We a few (sic) new surprises this time just to shake things up a bit.”  Who knew that meant they would stop allowing gambling at the casino?

Perhaps the Nevada AG should investigate this sentence:  “Everyone is a guaranteed winner.”  We’re not winners on this deal.  Are you?

Callicott ends by saying, “See you on the floor,” but fails to alert us to the fact that the table games will be gone, the slots will be unplugged and the gambling floor will be walled off two short months later.  Details, details….

 Message from the Siena General Manager – Clyde Callicott

Another Reno Summer is whizzing by at the Siena and the action is getting even hotter. We a few new surprises this time just to shake things up a bit. Let’s start with tournaments. Not only do we have $2K Open Slot Tournaments, now on it’s new day Tuesdays from 12vnoon to 8PM where you could win your share of $2000.00 in cash and prizes, we’ve added a new tournament, The Siena $1000 Free Video Poker Tournament, Saturdays from 12noon to 3PM . For River Club card member we are rolling out the Red Carpet as we host special “Guest Appreciation Days”.

On Monday’s all River card Members will receive 2X points for their Slot, Video Poker and Keno play as well as 2 for 1 lunch specials and 50% off all drink prices from 6PM to 9PM.

On Thursday join us for the all new Ladies Night – All Day !! All female River Card members will receive 2X points and 50% off drinks from 6PM to 9PM and that’s not all, all Female River Card members will also be eligible for a special drawing where they can win their share of $500.00 in cash and Spa packages.

It’s the return of 2 of our more popular promotions, Friday’s in August it’s the Great Point Stacker, where the top 20 point earners for the day win $50.00 in Free Play and on Saturdays The CASH IS KING is back. You could win your share of $1000.00 in cash simply by spinning the Siena Spin to Win Wheel.

Everyone is a guaranteed winner. Drawings every 30 minutes from 4 to 9 PM Spin the wheel of cash for your shot at $1,000 in cold hard cash. And don’t forget that you can now EARN 3X’s MORE FREE PLAY AND MORE VALUABLE COMPS than ever before simply by using your River Club Card.

It’s all about the experience, the guest service, the great food, and fun and exciting entertainment. The staff and management of the Siena have made a major commitment to you. So I ask you again – Don’t you think it’s time to rediscover the Siena?

See you on the floor,

Clyde Callicott, General Manager
One South Lake Street, Reno, NV 775-32-SIENA

Wikipedia Needs Your Help

There’s so much left unsaid on the Siena’s Wikipedia site.  Who wants to take a stab at correcting the record?

http://en.wikipedia.org/wiki/Siena_Hotel_Spa_Casino

RGJ Update: Siena shifts money "to other obligations"

Update at 3:38 p.m.:

 Dennis Neilander, chairman of the Nevada Gaming Control Board, said the Siena requested temporary closure of its gaming operations. Its sports book will remain open because it is run by the Cal Neva under a separate license.

Neilander said there is a requirement for licensees to maintain a minimum bankroll, calculated based on the types of games they have and potential jackpots.

“They decided to shut down (their) gaming operation and take that bankroll to other obligations as part of steps to make the property viable,” Neilander said.

Gaming was shut down about 4 a.m. Friday morning and agents from the board were on hand to observe the final drop about 6 a.m.

Neilander said the Siena is working on proposals to redo the slot floor.  “I think they decided this was the best course of action,” he said.

Temporary closures are done by quarter. The approval runs through the end of this quarter. If the Siena wants to remain closed for another quarter they can make another request.

Jeff Siri, CEO and president of the Cal Neva, said they will continue to keep the sports book in the Siena open.  “Our sports book’s done OK business today, surprisingly,” he said, noting that a 6-foot wall had been placed around the slot machines. “Hopefully we can spruce up the area and stay active. If they can keep the hotel business open I think it could do OK.”

Reno Mayor Bob Cashell said about 3 p.m. he hadn’t spoken with anyone at the Siena yet, but had heard they closed the gaming to do a renovation.  “I’m just hoping they’re not closing,” he said.

Siena Bankruptcy Update

Following up on the September 14th posting entitled “Siena Bankruptcy”, we stated that we were anxiously anticipating the day the Wild Game Ng / Hi-Five and/or Five-Way Development lease would be made public.  That day is upon us.

There are two leases that we could find.  The original lease from March 6, 2000 and the amended lease from April 14, 2000.  Are we to believe that the original lease Barney signed with Barney wasn’t rich enough for Barney in hindsight (6 weeks later)?

It turns out that we were way off on the numbers from the September 14th posting.  The monthly rent wasn’t $350,000 per month. It’s actually $553,333.34 and, prior to the Siena BK filing, was scheduled to balloon its way up to $774,666.67 shortly, as the lease hits its tenth year. It was scheduled to escalate to $885,333.34 in its 15th year. Anyway, the latest filing seeks to suspend these $553,333.34 monthly payments from Wild Game Ng to One South Lake, substituting $11,000 monthly payments instead.  For those of us who are mathematically challenged, that’s $132,000 a year – a nice income that many of us would be thrilled to have given the state of our investment(s)…but let’s move on, shall we?

Something that initially makes no sense is the fact that the lease is by and between Wild Game Ng and Five-Way Development.

“On or about March 6, 2000, One South (as successor-in-interest to Hi-Five Enterprises, LLC and Five-Way Development) entered into a Land Lease and Hotel Casino Lease pursuant to which it leases the Property to WGN.”

 

If that’s the case, why is One South Lake the beneficiary?  Well, on August 22, 2001, Hi-Five Enterprises Granted, Bargained, or Sold to One South Lake Street – you can find this document on the marvelous Washoe County Recorder’s website.

The BK lease document is full of good information.  The following comes from Barney NG’s declaration:

“Pursuant to the Casino Lease, WGN is currently required to pay to One South
monthly rent, without deduction, setoff, prior notice, or demand, equal to an estimated $553,333.34 per month, payable in advance. This rental amount is based upon lease modification documents recently provided to the Debtors by RE Reno, which documents are inconsistent with the Debtors’ internal books and records. The Debtors’ accounting team, under my supervision and direction, is currently verifying this number and reconciling all available documents with the Debtors’ books and records. Since commencing these cases on July 21, 2010 (the “Petition Date,”), however. WGN has not made such rent payments. In connection with WGN’s usage of cash, WGN and One South have been providing R.E. Reno, LLC (“RE Reno”), One South’s secured lender, with periodic operating reports setting forth the Debtors’ net cash flow and operating results, and comparing those results to the Debtors’ operating budget previously tiled with this Court. As demonstrated both by the Debtors’ budget and by its actual operating results during the pendency of these Chapter II cases, WGN is operating on close to a “break even” basis and does not have the ability to make the lease payments called for under the Casino Lease, Furthermore, as of the Petition Date, WGN owed One South as much as $10 million or more pursuant to the Casino Lease on account of unpaid, prepetition rent. (The amount of the prepetition default under the Casino Lease is still being calculated and verified by the Debtors’ accounting staff. under my supervision and direction,).  The Debtors commenced these cases primarily to obtain the breathing space afforded by the Bankruptcy Code’s automatic stay while they implement various operating improvements, locate a new operator or transactional partner for The Siena, and develop a plan of reorganization for their business. Those efforts have been ongoing, and 1 have received numerous expressions of interest that I am currently exploring.” 

Anyone care to comment?  There is plenty of meat in the above paragraph.

Finally, we’ll leave you with the following – does anyone care to comment on the sheer number of affiliated entities and loans and deals zinging back and forth between Walter and Barney (and Barney and Barney)?  Who recognizes Gold Mountain Financial Institution?  Didn’t the RE Loans Operating Agreement strictly cap the percentage of affiliated loans that could be made?

VIII.  FUNDS FOR TENANT IMPROVEMENTS
Landlord shall provide construction funds for tenant improvements to the premises. Such construction funds shall not exceed $35,000,000.00 (less closing costs, attorneys’ fees, the Land Lease Portion defined below and other related costs and expenses) (the “Construction Funds”) which amount, together with $5,000,000.00 borrowed for acquisition of the premises and loan broker fees, Landlord has or shall borrow from Gold Mountain Financial Institution through two loans arranged by Bar K, Inc., a California corporation, evidenced by a promissory note in the amount of $20,000,000.00 dated June 29, 1999 secured by a first position deed of trust recorded against the premises (the “First Loan”) and evidenced by a promissory note in the amount of $20,000,000.00 dated April 17, 2000 secured by a second position deed of trust recorded against the premises (the “Second Loan”) other real property. The lien of such deeds of trust against the premises shall be senior and superior to this Lease. The disbursement of the Construction Funds shall be made in accordance with the requirements of such lender.  Tenant shall have the right to approve the use of the Construction Funds.  All costs of construction in excess of the Construction Funds shall be the responsibility of Tenant.  The term “Hotel & Casino Lease Percentage” shall be deemed to be the percentage determined by dividing the difference between the amount that has been funded under the two loans minus $2,090,000 (which equals that portion of the $40,000,000.00 that is used to pay existing liens against the property that is secured by the deed of trust under the Second Loan that is not secured by the premises) by the amount that has been funded under the two loans.  The term “Portion Funded Percentage” shall be 100% less the percentage determined by  dividing that portion of the $40,000,000.00 that is not funded for construction by $40,000,000.00.