**Exhibit 10.4**

 

**Execution Version**

 

TRANSFER RESTRICTION AGREEMENT

 

This Transfer Restriction Agreement (this “Agreement”) is made as of June 18, 2004 among Thomas J. Barrack, Jr. (“Mr.Barrack”), Nicholas L. Ribis (“Mr. Ribis”, and together with Mr. Barrack, the “Coinvestment VoteCo Members”), Colony Resorts LVH Coinvestment VoteCo, LLC, a Delaware limited liability company(“Coinvestment VoteCo”), and Colony Resorts LVH Co-Investment Partners, L.P. (“Co-Investment Partners”), a Delaware limited partnership. 

 

RECITALS

 

WHEREAS, as of the date hereof (the “Closing Date”), Colony Resorts LVH Acquisitions, LLC, a Delaware limited liability company (the“Company”) purchased (the “Acquisition”) substantially all of the assets of LVH Corporation, a Nevada corporation (“LVH”) pursuant to a Purchase and Sale Agreement dated as of December 24, 2003 (asamended through the date hereof, the “Purchase Agreement”); 

 

WHEREAS, the Company was authorized to issue membership units consisting of (i) Class A Membership Units (the “Class AUnits”), and (ii) Class B Membership Units (the “Class BUnits” and, together with the Class A Units, the “Membership Units”); 

 

WHEREAS, immediately prior to the Acquisition, Coinvestment VoteCo was the record owner of 0.90 Class A Units and no other Membership Units, andCo-Investment Partners was the record owner of 900,000 Class B Units and no other Membership Units; 

 

WHEREAS, from time to time, Coinvestment VoteCo may acquire additional Class A Units or other equity interests of the Company’s convertible into,exchangeable for or otherwise providing Coinvestment VoteCo with the right to acquire Class A Units, and Co-Investment Partners may acquire additional Class B Units or other equity interests of the Company’s convertible into, exchangeable foror otherwise providing Co-Investment Partners with the right to acquire Class B Units; 

 

WHEREAS, the Coinvestment VoteCo Members are the record and beneficial owners of all the issued and outstanding limited liability company interests of Coinvestment VoteCo (the “Coinvestment VoteCoInterests”); 

 

WHEREAS, the parties hereto believe itis desirable and in their mutual best interests to provide for procedures regarding the ownership of the Class A Units owned by Coinvestment VoteCo and the Coinvestment VoteCo Interests owned by the Coinvestment VoteCo Members; and 

 

WHEREAS, the parties hereto further believe that the execution of thisAgreement will help facilitate the continuous, harmonious and effective management of Co-Investment Partners’ investment in the Company. 

 

NOW, THEREFORE, in consideration of the recitals and the mutual covenants, promises, agreements,representations and warranties of the parties hereto, the parties hereto hereby agree as follows: 

 

Section 1. Certain Definitions. As used herein, the following terms have the respective meanings set forth below: 

 

“Acquisition” has the meaning given to such term in therecitals set forth above. 

 

“Agreement” has themeaning given to such term in the introduction hereof. 

 

“Approved Purchaser” means a proposed purchaser of Membership Units or Membership Units Equivalents, who, in connection with its proposed purchase of Membership Units or Membership Units Equivalents, has obtained alllicenses, permits, registrations, authorizations, consents, waivers, orders, findings of suitability or other approvals required to be obtained from, and has made all filings, notices or declarations required to be made with, all Gaming Authoritiesunder all applicable Gaming Laws. 

 

“ApprovedSale” has the meaning given to such term in Section 3(a) hereof. 

 

“Approved Sale Date” has the meaning given to such term in Section 3(b) hereof. 

 

“Call Notice” has the meaning given to such term in Section 3(b) hereof 

 

“Class A Equivalents” means any securities of the Company convertible into, exchangeable for or otherwiseproviding the holder thereof any right to acquire Class A Units. 

 

“Class A Holder” means a holder of Class A Units or Class A Equivalents; *provided*that Co-Investment Partners shall not be considered a Class A Holder, regardless of whether Co-Investment Partners holds any Class AUnits. 

 

“Class A Units” has the meaning givento such term in the recitals set forth above. 

 

“Class BEquivalents” means any securities of the Company convertible into, exchangeable for or otherwise providing the holder thereof any right to acquire Class B Units, which securities are substantially equivalent in designations, preferences,limitations, restrictions and relative rights, but not as to voting, to a class or series of Class A Equivalents. 

 

“Class B Units” has the meaning given to such term in the recitals set forth above. 

 

“Co-Investment Partners” has the meaning given to such termin the introduction hereof. 

 

“CoinvestmentVoteCo” has the meaning given to such term in the introduction hereof. 

 

“Coinvestment VoteCo Interest” has the meaning given to such term in the recitals set forth above. 

 

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“Coinvestment VoteCo Member” has the meaning given to such term in the introductionhereof. 

 

“Colony Capital Advisory Committee”means the advisory committee comprised of certain limited partners of Colony Capital Resorts LVH Co-Investment, L.P., the general partner of Co-Investment Partners. 

 

“Company” has the meaning given to such term in the recitals set forth above. 

 

“Corresponding Class A Equivalents” means, with respect toany referenced Class B Equivalents, the Class A Equivalents that are substantially equivalent in designations, preferences, limitations, restrictions and relative rights, but not as to voting, to such specified Class B Equivalents. 

 

“Corresponding Class B Equivalents” means, with respect toany referenced Class A Equivalents, the Class B Equivalents that are substantially equivalent in designations, preferences, limitations, restrictions and relative rights, but not as to voting, to such specified Class A Equivalents. 

 

“Gaming Authorities” means all governmental authorities oragencies with regulatory control or jurisdiction over the gaming or gambling operations of the Company and its subsidiaries, including without limitation, the Nevada Gaming Commission. 

 

“Gaming Laws” means any U.S. Federal, state, local or foreign statute, ordinance, rule, regulation, permit,consent, approval, license, judgment, order, decree, injunction or other authorization governing or relating to the current or contemplated manufacturing, distribution, casino gambling and gaming activities and operations of the Company, including,without limitation, the gaming laws and regulations of the State of Nevada. 

 

“LVH” has the meaning given to such term in the recitals set forth above. 

 

“Membership Units Equivalents” means the Class A Equivalents or Class B Equivalents of the Company. 

 

“Membership Units” has the meaning given to such term in therecitals set forth above. 

 

“Mr. Barrack” hasthe meaning given to such term in the introduction hereto. 

 

“Mr. Ribis” has the meaning given to such term in the introduction hereto. 

 

“Required Number” means the number of Class A Units or Class A Equivalents to be purchased by Co-Investment Partners from CoinvestmentVoteCo pursuant to the exercise by Co-Investment Partners of its option to purchase Class A Units or Class A Equivalents pursuant to the provisions of Section 3 hereof, in connection with an Approved Sale, as specified by Co-Investment Partners in aCall Notice delivered by Co-Investment Partners to Coinvestment VoteCo; *provided*that unless otherwise approved by the Colony Capital Advisory Committee, such specified number shall be equal to the product of (i) the number of Class A

 

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Units or Class A Equivalents, as applicable, held by Coinvestment VoteCo immediately prior to the consummation of suchApproved Sale times (ii) a fraction, the numerator of which is the number of Class B Units or Corresponding Class B Equivalents, as applicable, to be Transferred by Co-Investment Partners to such Approved Purchaser pursuant to such Approved Sale andthe denominator of which is the total number of Class B Units or Corresponding Class B Equivalents, as applicable, held by Co-Investment Partners immediately prior to consummation of such Approved Sale. 

 

“Securities Act” means the Securities Act of 1933, asamended. 

 

“Transfer” means to voluntarily orinvoluntarily sell, assign, exchange or in any other manner transfer with or without consideration, except pursuant to a distribution of equity interests by Co-Investment Partners to its partners. “Transferred” has the correlative meaning.

 

Section 2. Restriction on Transfer. 

 

(a) So long as Coinvestment VoteCo holds Class A Units orClass A Equivalents, Coinvestment VoteCo shall not Transfer ownership of any or all such Membership Units or equivalents owned by it except as contemplated by Section 3 hereof. The Transfer of record or beneficial ownership of any Class A Units orClass A Equivalents, by operation of law or otherwise, by or upon the direction or authorization of Coinvestment VoteCo shall be deemed invalid, null and void, and of no force or effect, unless such Transfer is made pursuant to the provisions ofSection 3 hereof. 

 

(b) No Coinvestment VoteCoMember shall Transfer record or beneficial ownership of any or all Coinvestment VoteCo Interests owned by such Coinvestment VoteCo Member, unless such Transfer is approved in writing by the Colony Capital Advisory Committee. The Transfer of recordor beneficial ownership of any Coinvestment VoteCo Interests, by operation of law or otherwise, by or upon the direction or authorization of any Coinvestment VoteCo Member shall be deemed invalid, null and void, and of no force or effect, and thetransferee of any such Coinvestment VoteCo Interests shall not be entitled to vote such Coinvestment VoteCo Interests or receive distributions on such Coinvestment VoteCo Interests or have any other rights in or respecting such Coinvestment VoteCoInterests, unless such Transfer is approved in writing by the Colony Capital Advisory Committee. 

 

Section 3. Call Option. 

 

(a) Right to Call Class A Units and Class A Equivalents. Notwithstanding any other provision hereof, on each occasion thatCo-Investment Partners proposes to Transfer (including, without limitation, by operation of law or pursuant to any merger, consolidation, reorganization or recapitalization) any of the Class B Units or Class B Equivalents held by it to an ApprovedPurchaser (any such transaction, an “Approved Sale”), then Co-Investment Partners shall have an option, which, unless Co-Investment Partners otherwise receives approval from Gaming Authorities, Co-Investment Partners shall assign tosuch Approved Purchaser (such Approved Purchaser or Co-Investment Partners, as applicable, hereinafter referred to as the “Optionholder”), to purchase from Coinvestment VoteCo upon such Approved Sale the Required Number of Class AUnits, in the case of an Approved Sale of Class 

 

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B Units, or Corresponding Class A Equivalents, in the case of an Approved Sale of Class B Equivalents, ata cash price per unit equal to the sum of (a) the amount in cash or fair market value of any other consideration originally paid by Coinvestment VoteCo for such Required Number of Class A Units or Corresponding Class A Equivalents, as applicable,plus (b) the amount equivalent to a six percent (6%) annual rate of interest on such amount or fair market value, compounded annually, calculated from the date Coinvestment VoteCo acquired such Class A Units or Corresponding Class A Equivalents, asapplicable, on the basis of a 360-day year comprised of twelve 30-day months, to and excluding the Approved Sale Date. 

 

(b) Call Notice. Prior to consummating any Approved Sale, if the Optionholder elects to exercise the options granted to it underthis Section 3, Co-Investment Partners shall provide each of the Class A Holders with a written notice (the “Call Notice”) not less than five (5) days prior to the proposed date of the Approved Sale (the “Approved SaleDate”). The Call Notice shall state that the Optionholder is exercising its option to purchase Class A Units or Class A Equivalents pursuant to this Section 3 and shall set forth: (i) the name and address of the Optionholder, (ii) theaggregate number of Class B Units and Class B Equivalents held of record by Co-Investment Partners as of the date of the Call Notice, (iii) the number of Class B Units or Class B Equivalents to be sold by Co-Investment Partners to the ApprovedPurchaser pursuant to such Approved Sale, (iv) the Required Number of Class A Units or Class A Equivalents to be purchased by the Optionholder in connection with such Approved Sale, (v) the Approved Sale Date and (vi) the address for delivery of thecertificates representing the Class A Units or Class A Equivalents to be purchased by the Optionholder. 

 

(c) Delivery of Certificates. On the Approved Sale Date, Coinvestment VoteCo shall deliver to the Optionholder the certificates forthe Class A Units or Class A Equivalents being sold by it to the Optionholder, duly endorsed for transfer with signatures guaranteed, in the manner and at the address indicated in the Call Notice against delivery of immediately available funds inthe amount of the purchase price for such Class A Units or Class A Equivalents. 

 

Section 4. Legends. Coinvestment VoteCo shall use its reasonable efforts to cause each certificate representing Class A Units or Class A Equivalents owned of record and beneficially by Coinvestment VoteCo tocontain the following legends: 

 

THE SECURITIESREPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, HYPOTHECATED OR OTHERWISE DISPOSED OF (A “TRANSFER”) EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF THE AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT DATED ASOF JUNE 18, 2004. ANY TRANSFEREE OF THESE SECURITIES TAKES SUBJECT TO THE TERMS OF SUCH AGREEMENT, A COPY OF WHICH IS ON FILE WITH THE COMPANY. 

 

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”) OR STATESECURITIES LAWS, AND NO TRANSFER OF THESE SECURITIES MAY BE MADE EXCEPT (A) PURSUANT TO AN EFFECTIVE 

 

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REGISTRATION STATEMENT UNDER THE ACT, OR (B) PURSUANT TO AN EXEMPTION THEREFROM WITHRESPECT TO WHICH THE COMPANY MAY, UPON REQUEST, REQUIRE A SATISFACTORY OPINION OF COUNSEL FOR THE HOLDER THAT SUCH TRANSFER IS EXEMPT FROM THE REQUIREMENTS OF THE ACT. 

 

THE OWNERSHIP AND TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AND RESTRICTEDBY THE TERMS AND CONDITIONS OF A CERTAIN TRANSFER RESTRICTION AGREEMENT DATED JUNE 18, 2004. THE COMPANY WILL FURNISH A COPY OF SUCH TRANSFER RESTRICTION AGREEMENT WITHOUT CHARGE TO ANY MEMBER ON REQUEST. 

 

Section 5. Recapitalization, etc.; After-Acquired Stock. 

 

(a) The provisions of this Agreement (including anycalculation of ownership interests) shall apply to any and all equity interests of the Company or any capital stock, partnership interests or any other security evidencing ownership interests in any successor of the Company (whether by merger,consolidation, sale of assets or otherwise) that may be issued in respect of, in exchange for, or in substitution of the Membership Units by reason of any stock dividend, split, reverse split, combination, recapitalization, liquidation,reclassification, merger, consolidation or otherwise. 

 

(b) Whenever Coinvestment VoteCo becomes the record or beneficial owner of any additional Class A Units, such units shall be subject to the terms of this Agreement and included in the definition of “Class A Units” hereunder.Whenever Coinvestment VoteCo becomes the record or beneficial owner of any additional Class A Equivalents, such Class A Equivalents shall be subject to the terms of this Agreement and included in the definition of “Class A Equivalents”hereunder. The certificates therefor shall be surrendered for legending in accordance with Section 4 of this Agreement, unless already so legended. 

 

Section 6. Termination. This Agreement shall terminate upon the earlier of (a) Coinvestment VoteCo owning no Class A Units and no Class AEquivalents or (b) Co-Investment Partners owning no Class B Units and no Class B Equivalents. 

 

Section 7. Notices. Whenever notice is required to be given under the provisions of this Agreement, it shall be given in writing by hand-delivery, telefax, or United States registered or certified mail, returnreceipt requested, and shall be deemed to have been transmitted on the date such notice is so delivered, transmitted or mailed, if addressed as set forth below or to such other addresses and fax numbers as any of the parties hereto by written noticeto the other parties hereto, may from time to time designate. 

 

if to Mr. Barrack: 

 

c/o Colony Capital, LLC 

1999 Avenue of the Stars, Suite 1200 

Los Angeles, California 90067 

 

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if to Mr. Ribis: 

 

c/o Colony Capital, LLC 

660 Madison Avenue, Suite 1600 

New York, New York 10021 

 

if to Coinvestment VoteCo: 

 

c/o Colony Capital, LLC 

1999 Avenue of the Stars, Suite 1200 

Los Angeles, California 90067 

Attn: Mr. Barrack 

 

if to Co-Investment Partners: 

 

c/oColony Capital, LLC 

1999 Avenue of the Stars, Suite 1200 

Los Angeles, California 90067 

Attn: Mr. Jonathan H. Grunzweig 

 

Section 8. Additional Actions and Documents. Each party hereto shall take or cause to be taken such further actions and to execute and deliver such documents or instruments as may from time to time be reasonably necessary in order tocarry out the purposes of this Agreement. 

 

Section 9.Specific Performance. The parties hereto recognize that the provisions herein contained are of particular importance for the protection and promotion of their existing and future interests; that the Membership Units of the Company and theCoinvestment VoteCo Interests will be closely held; and that the relationships of the parties to one another are and will be such that, in the event of any breach of this Agreement, a claim for monetary damages may not constitute an adequate remedy;and that it may, therefore, be necessary for the protection of all of the parties hereto and for the effectuation of the provisions of this Agreement, in the event of a breach of this Agreement, to apply for specific performance thereof. It is,accordingly, hereby agreed that no objection to the form of the action or to the form of relief prayed for in any proceeding for specific performance of this Agreement, shall be raised by any party hereto, in order that such relief may be obtainedby the party aggrieved. 

 

Section 10. Construction.Unless the context of this Agreement clearly requires otherwise, references to the plural include the singular, to the singular include the plural, to the male gender include the female and neuter genders and vice versa, and to the part include thewhole. The term “including” is not limiting. The words “hereof,” “herein,” “hereby,” “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not to any particularprovision of this Agreement. Section and clause references are to this Agreement unless otherwise specified. 

 

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Section 11. Miscellaneous. 

 

(a) No Waiver. No waiver or modification of any term or condition of this Agreement shall beeffective unless in writing signed by all the parties hereto. 

 

(b) Severability. In case any of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall notaffect any other provision of this Agreement, but this Agreement shall be construed as if such invalid, illegal or unenforceable provision or provisions are not contained herein. 

 

(c) Binding Effect. This Agreement shall be binding and inure to the benefit of the parties hereto,their respective heirs, guardians, personal representatives, successors, successors in interest, and assigns. 

 

(d) Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York.

 

(e) Counterparts. This Agreement maybe executed in counterparts, (including by facsimile) each of which shall be an original, but all of which together shall constitute one document. 

 

[THE BALANCE OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK] 

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal with the intent that thisbe a sealed instrument, as of the day and year first above written. 

 
/s/    Thomas J. Barrack, Jr.        THOMAS J. BARRACK, JR.
 

/s/    Nicholas L.Ribis        
NICHOLAS L. RIBIS
 

COLONY RESORTS LVH COINVESTMENT VOTECO, LLC
By: 
/s/    Nicholas L.Ribis        
  
Name: Nicholas L. Ribis

Title:Member

 

COLONY RESORTS LVH CO-INVESTMENT PARTNERS, L.P.
By: 
COLONY CAPITAL RESORTS LVH CO-INVESTMENT, L.P

*its general partner*

By:
 
COLONY RESORTS LVH CO-INVESTMENT GENPAR, LLC

*its general partner*

By:
 
/s/    Thomas J. Barrack,Jr.        
  
****Name: Thomas J. Barrack, Jr.

Title:Sole Member

 

[Signature Pageto Coinvestment VoteCo Transfer restriction Agreement]