COMMON PARKING AREA USE AGREEMENT
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THIS COMMON PARKING AREA USE AGREEMENT ("Agreement") is entered into as of
the 26th day of February, 1998 (the "Effective Date"), by and between Aladdin
Gaming, LLC, a Nevada limited liability company ("Aladdin Gaming"), and Aladdin
Bazaar, LLC, a Delaware limited liability company ("Bazaar Company").
R E C I T A L S
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A. Aladdin Gaming owns certain real property located at 0000 Xxx Xxxxx
Xxxxxxxxx Xxxxx in Xxxxx County, Nevada which are more particularly described on
Exhibit "A-1" to the REA (the "Site").
B. Aladdin Gaming and Bazaar Company have entered into that certain Lease
dated of even date herewith (the "Bazaar Lease"), pursuant to which Bazaar
Company leased from Aladdin Gaming that portion of the Site more particularly
described on Exhibit "A-3" to the REA (the "Bazaar Site"). Bazaar Company shall
construct certain improvements on the Bazaar Site (the "Bazaar Improvements")
consisting of an enclosed themed entertainment shopping center containing
approximately 462,000 square feet of gross leasable retail area (the "Retail
Facility"), and a multi-level parking structure adjacent to the Aladdin
Improvements for approximately 4,800 motor vehicles adjacent to the Aladdin
Improvements, and surface-level parking facilities for approximately 364 motor
vehicles beneath and adjacent to the Retail Facility, all as more particularly
described on the Site Plans (as defined in the REA) attached to the REA as
Exhibit "B" (the "Common Parking Area").
C. Aladdin Gaming shall construct or cause to be constructed certain
improvements on that portion of the Site that is more particularly described on
Exhibit "A-2" to the REA (the "Aladdin Site") consisting of a renovated and
expanded hotel-casino containing approximately 2,600 rooms and an approximately
115,000 square foot casino (the "Aladdin Hotel & Casino"), a Theater for
Performing Arts (as that term is defined in the REA) and parking facilities
beneath the Aladdin Hotel and Casino for approximately 500 motor vehicles (the
"Aladdin Parking Area" and, together with the Aladdin Hotel & Casino and Theater
for Performing Arts, the "Aladdin Improvements").
D. Aladdin Gaming and Aladdin Music Holdings, LLC ("Aladdin Music
Holdings") have entered into that certain Lease dated of even date herewith (the
"Music Lease"), pursuant to which Aladdin Music Holdings leased from Aladdin
Gaming an approximately 4.7 acre portion of the Site (the "Music Site") located
at the corner of Xxxxxx Street and Xxxxxx Avenue to permit the construction and
operation by Aladdin Music, LLC ("Aladdin Music") of an approximately 1,000
room, themed hotel with an approximately 50,000 square foot casino (the "Music
Hotel"). Aladdin Music Holdings shall assign all its right, title and interest
in the Music Lease to Aladdin Music.
E. Aladdin Gaming and its Permittees must have the non-exclusive right to
use the Common Parking Area and Bazaar Company agrees to grant to Aladdin Gaming
and its Permittees such non-exclusive right to use the Common Parking Area,
pursuant to the covenants, terms and
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conditions hereinafter set forth.
NOW, THEREFORE, incorporating the foregoing recitals and in consideration
of the mutual promises, representations and covenants set forth herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
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DEFINITIONS
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Accounting Period. "Accounting Period" means any period beginning on
January 1st and ending on the next following December 31st, except that the
first Accounting Period shall commence on the Effective Date and shall end on
the following December 31st.
Adjustment Date. "Adjustment Date" has the meaning ascribed to it in
Section 3.1(b) of this Agreement.
Affiliate. "Affiliate" means a Person that Controls, is directly or
indirectly Controlled by, or is under common ownership or Control with, another
Person. Notwithstanding the foregoing or any other provision of this Agreement
to the contrary, Bazaar Company shall not be considered to be an Affiliate of
Aladdin Gaming or any Affiliates thereof, and Aladdin Gaming shall not be
considered to be an Affiliate of Bazaar Company or any Affiliates thereof,
notwithstanding the fact that an Affiliate of Aladdin Gaming holds a fifty
percent (50%) membership interest in Bazaar Company.
Agreement. "Agreement" means this Common Parking Area Use Agreement, as
amended from time to time.
Aladdin Improvements. "Aladdin Improvements" has the meaning ascribed to
it in Recital C of this Agreement.
Aladdin Music. "Aladdin Music" means Aladdin Music, LLC, a Nevada limited
liability company, its successors and assigns.
Aladdin Music Holdings. "Aladdin Music Holdings" means Aladdin Music
Holdings, LLC, a Nevada limited liability company, its successors and assigns.
Aladdin Site. "Aladdin Site" shall have the meaning ascribed to it in
Recital C of this Agreement.
Allocable Share of Parking Operating Costs. "Allocable Share of Parking
Operating Costs" means that percentage of the Parking Operating Costs allocable
to each of Aladdin Gaming for the Aladdin Site and the Music Site and Bazaar
Company for the Bazaar Site on a monthly basis in and for each Accounting
Period, which share shall be determined by multiplying the amount set forth in
the Estimated Cost Statement by the percentage set forth below, which percentage
shall be subject to equitable adjustment as reasonably determined by the parties
hereto at such time as any Optional Improvements (as that term is defined in the
REA) shall be developed by Aladdin Gaming and its Permitted Transferees under
the REA, or a successor thereof. The initial Allocable Share of Parking
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Operating Costs shall be equal to the percentages and paid by the parties set
forth below, payable to Aladdin Gaming or Bazaar Company, as the case may be, as
set forth herein:
(a) Seventy-five percent (75%) for Aladdin Gaming; and
(b) Twenty-five percent (25%) for Bazaar Company.
Amended LLC Agreement. "Amended LLC Agreement" shall mean that certain
Limited Liability Company Agreement of Bazaar Company dated as of September 3,
1997, as amended by that certain First Amendment to the Limited Liability
Company Agreement dated as of October 16, 1997, as amended.
Arbitration. "Arbitration" means those procedures for resolving Disputes
among the parties set forth in Section 10.1 of this Agreement.
Arbitrator. "Arbitrator" shall have the meaning ascribed to it in Section
10.1(a) of this Agreement.
Base Fee. "Base Fee" shall have the meaning ascribed to it in Section 3.1
of this Agreement.
Base Month. "Base Month" has the meaning ascribed to it in Section 3.1(b)
of this Agreement.
Bazaar Company. "Bazaar Company" means Aladdin Bazaar, LLC, a Delaware
limited liability company, its successors and assigns.
Bazaar Improvements. "Bazaar Improvements" has the meaning ascribed to it
in Recital B of this Agreement.
Bazaar Lease. "Bazaar Lease" has the meaning ascribed to it in Recital B
of this Agreement, as amended from time to time.
Bazaar Site. "Bazaar Site" has the meaning ascribed to it in Recital B of
this Agreement.
Budget. "Budget" has the meaning ascribed to it in Section 3.2(a) of this
Agreement.
CIP. "CIP" shall mean the "Controlled Insurance Program" as defined and
set forth in that certain Contract between Aladdin Gaming and Fluor Xxxxxx, Inc.
for Design/Build Services dated as of December 4, 1997.
Common Parking Area. "Common Parking Area" has the meaning ascribed to it
in Recital B of this Agreement and shall mean that portion of the Bazaar
Improvements as designated on the Site Plans attached to the REA as Exhibit "B"
for the shared use of all parties and the Redeveloped Aladdin and all of their
Permittees in connection with the parking, passage and loading of motor
vehicles, together with related improvements which are at any time constructed
in connection therewith including driveways, pedestrian sidewalks, walkways and
stairways, escalators, elevators,
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light standards, directional signs, curbs and landscaping within and adjacent to
areas used for such shared parking, passage and loading.
Comparison Month. "Comparison Month" has the meaning ascribed to it in
Section 3.1(b) of this Agreement.
Control. "Control" shall mean the power, exercisable jointly or severally,
to manage and direct a Person through the direct or indirect ownership of
partnership interest, stock, trust powers, or other beneficial interests and/or
management or voting rights.
CPI. "CPI" means the Consumer Price Index for Urban Wage Earners and
Clerical Workers, or any successor index thereto, published by the United States
Department of Labor, Bureau of Labor Statistics, for the year in question. In
the event that the CPI is converted to a different standard reference base or
otherwise revised, the determinations to be made based on the CPI pursuant to
Section 3.1 of this Agreement shall be made with the use of such conversion
factor, formula or table for converting the CPI as may be published by the U.S.
Department of Labor or, if not so published, then with the use of such
conversion factor, formula or table as may be published by any nationally
recognized publisher of similar statistical information, or if a conversion
factor, formula or table is unavailable from any such source, the parties shall
select, in good faith, another method to adjust the CPI, or any successor
thereto, to the figure that would have been arrived at had the manner of
computing the CPI in effect on the date of this Agreement not been altered.
Demand. "Demand" shall have the meaning ascribed to it in Section 10.1(a)
of this Agreement.
Demanding Party, Non-Demanding Party. "Demanding Party" and "Non-Demanding
Party" shall have the meanings ascribed to them in Section 10.1(a) of this
Agreement.
Dispute. "Dispute" shall have the meaning ascribed to it in Section
10.1(a) of this Agreement.
Effective Date. "Effective Date" means the date this Agreement is executed
by Aladdin Gaming and Bazaar Company as set forth in the introductory paragraph
of this Agreement.
Employee Parking Areas. "Employee Parking Areas" shall have the meaning
ascribed to it in Section 6.2(b) of this Agreement.
Estimated Cost Statement. "Estimated Cost Statement" shall have the
meaning ascribed to it in Section 3.2(a) of this Agreement.
Event of Default, Default. "Event of Default" or "Default" shall have the
meanings ascribed to them in Article 9 of this Agreement.
Aladdin Gaming. "Aladdin Gaming" means Aladdin Gaming, LLC, a Nevada
limited liability company, its successors and assigns.
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Hazardous Substances. "Hazardous Substances" means and includes the
following, including mixtures thereof; any hazardous substance, pollutant,
contaminant, waste, byproduct or constituent regulated under NRS Chapter 459,
NRS Sections 618.750-618.850, NRS Section 477.045, as amended, or any other
federal, state or local laws and regulations as amended or hereafter enacted
regulating hazardous or toxic substances or wastes, petroleum pollutant or waste
or similar substances, including, but not limited to, as defined in the
Comprehensive Environmental Response, Liability and Compensation Act, 42 U.S.C.
Section 9601 et seq., as amended, the Federal Water Pollution Control Act, 33
U.S.C. Sections 1251, et seq. Hazardous Materials Transportation Act, 49 U.S.C.
Sections 1801, et seq., Resource Conservation and Recovery Act, 42 U.S.C.
Sections 6901, et seq., Safe Drinking Water Act, 42 U.S.C. Sections 3000(f), et
seq., Clean Air Act, 42 U.S.C. Sections 7401, et seq., United States Department
of Transportation Hazardous Materials Table, 49 C.F.R. 172.101, Chapters 444,
445A, 445B, 590 or 618 of NRS, pesticides regulated under the Federal
Insecticides, Fungicide and Rodenticide Act, 7 U.S.C. Section 136 et seq.,
asbestos and asbestos-containing materials, PCBs and other substances regulated
under the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq., source
material, special nuclear material, by-product material and any other
radioactive materials or radioactive wastes, however produced, regulated under
the Atomic Energy Act or the Nuclear Waste Police Act; chemicals subject to the
OSHA Hazard Communication Standard, 29 C.F.R. 1910.1200 et seq.; and industrial
process and pollution control wastes whether or not hazardous within the meaning
of the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.,
all as may be amended.
Involuntary Transfer; Involuntary Transferor; Involuntary Transferee.
"Involuntary Transfer" shall mean the conveyance or reversion of fee or
leasehold title to a Tract (or portion thereof) from a Mortgagor ("Involuntary
Transferor") to a Mortgagee ("Involuntary Transferee") resulting from the
judicial or nonjudicial foreclosure of the Mortgage, the grant of a deed in lieu
of such foreclosure, or the expiration, termination or surrender of a leaseback
in a sale and leaseback transaction; provided, however, in the event of such an
Involuntary Transfer, the Involuntary Transferor shall be conclusively deemed to
have assigned all of its rights, powers, title and interest in its Tract (or the
relevant portion thereof) and this Agreement to the Involuntary Transferee, who
shall be conclusively deemed to have assumed all of the Involuntary Transferor's
covenants and obligations thereunder accruing from and after such Involuntary
Transfer.
Mortgage; Mortgagor; Mortgagee. "Mortgage" shall mean an indenture of
mortgage, deed of trust, or a sale and leaseback of all or a portion of the
interest of a party ("Mortgagor") in its Tract. "Mortgagee" shall mean either
the trustee and beneficiary/mortgagee, individually or collectively as
appropriate, under a Mortgage or Aladdin Gaming or lessor following a sale and
leaseback, provided that such Persons are not in possession of the Tract of the
applicable party. Mortgagee shall not be deemed to be in possession until
Mortgagee takes title to any Tract.
Music Hotel. "Music Hotel" has the meaning ascribed to it in Recital D of
this Agreement.
Music Lease. "Music Lease" has the meaning ascribed to it in Recital D of
this Agreement.
Music Site. "Music Site" has the meaning ascribed to it in Recital D of
this Agreement.
NRS. "NRS" means the Nevada Revised Statutes as in effect from time to
time.
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Offset Rights. "Offset Rights" shall have the meaning ascribed to it in
Section 3.5.
Opening Date. "Opening Date" shall have the meaning ascribed to the term
"First Scheduled Opening Date" in the Site Work Agreement.
Parking Operating Costs. "Parking Operating Costs" shall mean all costs
and expenses of every kind and nature incurred by Bazaar Company in connection
with its operation, management, maintenance, repair, replacement or restoration
of the Common Parking Area, which costs and expenses are not allocated among the
parties as Common Costs (as that term is defined in the REA) and are not
associated with the Retail Facility, including, without limitation, the
following:
(a) all payments made to an operator of any portion of the Common
Parking Area, including administrative fees paid to and actual costs incurred by
Bazaar Company as operator (and Bazaar Company shall be entitled to a ten
percent (10%) override to cover Bazaar Company's general and administrative
costs);
(b) any use taxes or other fees or charges relating to parking
operations imposed by Xxxxx County or any other governmental authority claiming
jurisdiction over the Site;
(c) the cost of licenses, certificates, permits and inspections, and
the cost of contesting the validity or applicability of any governmental
enactments which may affect Parking Operating Costs;
(d) all real estate taxes and general and special assessments
allocable to the Common Parking Area, in accordance with Section 6.6 of the REA;
(e) the cost of insurance premiums with respect to insurance policies
required to be carried by Bazaar Company by its Mortgagee, the REA, or this
Agreement, including business interruption insurance, in an amount equal to the
difference between the aggregate insurance premiums paid by Bazaar Company for
the Bazaar Site and the aggregate insurance premiums which would have been
payable by Bazaar Company if it had only carried required insurance with respect
to the Retail Facility; and
(f) the cost of supplying all utilities, and operating, maintaining,
repairing, renovating and managing all systems and equipment;
(g) wages, salaries and other compensation and benefits of all
persons engaged exclusively (appropriate pro rata portion thereof) in the
operation, management, maintenance or security of the Common Parking Area, and
employer's social security taxes, unemployment taxes or insurance, and any other
taxes which may be levied on such wages, salaries, compensation and benefits;
(h) payments under the Bazaar Lease (excluding rent) or under any
easement, license, operating agreement, declaration, restrictive covenant or
instrument pertaining to the sharing of costs by the Common Parking Area;
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(i) the cost of janitorial service, alarm and security service, trash
removal, maintenance of public areas, maintenance and replacement of curbs,
walkways and roofs;
(j) the cost of landscaping, relamping, supplies, tools, equipment
and materials, and all fees, charges and other costs incurred in connection with
the management, operation, repair and maintenance of the Common Parking Area
pursuant to Section 6.1 of this Agreement; and
(k) the cost of any capital improvements or other costs (i) which are
intended as a labor-saving device or to effect other economies in the operation
or maintenance of the Common Parking Area, (ii) made to the Common Parking Area
after the Opening Date that are required under any governmental law or
regulation enacted after the Effective Date unless such capital improvement or
other cost should have been incurred in connection with the initial construction
of the Common Parking Area in order to comply with then existing governmental
laws and regulations; or (iii) which are reasonably determined by Bazaar Company
to be in the best interests of the Common Parking Area.
If and to the extent any services or transactions referred to in subsections (a)
through (k) of this definition are performed by Affiliates of Bazaar Company,
they shall be at competitive market rates. Except as otherwise specifically
provided above, "Parking Operating Costs" shall not include costs of interest on
debt or amortization on any Mortgages and rent payable under the Bazaar Lease.
Any and all revenues generated by the Common Parking Area shall be offset
against the Parking Operating Costs for the corresponding Accounting Period in
order that Parking Operating Costs shall represent the net cost of operating the
Common Parking Area after application of such revenues.
Parking Regulations. "Parking Regulations" shall have the meaning ascribed
to it in Section 6.2(a) of this Agreement.
Permitted Transferee. "Permitted Transferee" means a Person to whom
Aladdin Gaming or Bazaar Company sells, leases, transfers or assigns its
interest in all of its Tract, together with all or the relevant portion of its
rights and obligations under this Agreement, the REA, the Bazaar Lease and any
and all other agreements affecting or concerning the Site or any portion
thereof, as applicable. Such Person to whom a transfer is made and who becomes
a Permitted Transferee hereunder must expressly assume the transferring party's
rights and obligations under this and all relevant agreements by a writing duly
acknowledged and in recordable form if necessary.
Permittees. "Permittees" shall mean the parties hereto, Aladdin Music, and
all other Persons from time to time entitled to use, occupy or visit the
Redeveloped Aladdin pursuant to any lease, sublease, deed or other instrument,
agreement or arrangement, and their respective officers, directors, employees,
representatives, agents, partners, members, managers, architects, engineers,
contractors, customers, visitors, invitees, tenants, subtenants, licensees,
suppliers, vendors and concessionaires.
Person. "Person" shall mean an individual, fiduciary, trust, partnership,
limited liability company, firm, association and corporation, or any other form
of business or governmental entity.
REA. "REA" means that certain Construction, Operation and Reciprocal
Easement Agreement dated concurrently herewith, by and among Aladdin Gaming,
Bazaar Company and
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Aladdin Music.
Redeveloped Aladdin. "Redeveloped Aladdin" means the Bazaar Improvements,
the Aladdin Improvements, the Music Hotel and the Energy Plant.
Retail Facility. "Retail Facility" has the meaning ascribed to it in
Recital B of this Agreement.
Site. "Site" has the meaning ascribed to it in Recital A of this Agreement.
Site Work Agreement. "Site Work Agreement" means that certain Site Work
Development and Construction Agreement dated concurrently herewith, entered into
by Aladdin Gaming, Aladdin Holdings, LLC, a Delaware limited liability company,
and Bazaar Company.
Subordinated Debt. "Subordinated Debt" shall have the meaning ascribed to
it in Section 3.5 of this Agreement.
Tract. "Tract" shall initially mean all buildings, land and/or air space
comprising the Bazaar Site or the Aladdin Site, as applicable, together with all
other improvements of Aladdin Gaming, or Bazaar Company, as the case may be, now
or hereafter located thereon. If at any time hereafter less than all of the
Bazaar Site or the Aladdin Site is Transferred in accordance with the
requirements of the REA, then that portion of the Tract so Transferred shall
hereinafter be deemed a separate Tract and the Person acquiring or leasing such
new Tract shall be deemed a Permittee hereunder; provided, however, that no
lease or license of space within the Redeveloped Aladdin by either Aladdin
Gaming or Bazaar Company shall be deemed to create a new Tract.
Use Fee. "Use Fee" means, collectively, the Base Fee and Aladdin Gaming's
Allocable Share of Parking Operating Costs which shall be payable to Bazaar
Company at the address for Bazaar Company set forth in Section 10.4 below.
ARTICLE 2
USE OF COMMON PARKING AREA
2.1 Use by Permittees. From and after the Opening Date, all Permittees of
the Redeveloped Aladdin shall have the right to use the Common Parking Area,
subject only to the terms and conditions contained herein.
2.2 Limitations on Use. Notwithstanding any other provision contained in
this Agreement, no Permittee may use the Common Parking Area for any unlawful
purpose and, unless Aladdin Gaming and Bazaar Company otherwise mutually agree,
the Common Parking Area shall be used only for the parking, passage, loading and
unloading of motor vehicles and pedestrian traffic. The use of the Common
Parking Area shall be subject to the Parking Regulations and, more generally,
the provisions of Article 6 hereof. In addition, neither Aladdin Gaming nor any
Permittees shall perform any act or carry on any practice that may damage the
Common Parking Area, normal wear and tear excepted, or cause any offensive odors
or loud noise (aside from odors and noises customarily found in a parking
garage) or constitute a nuisance or a menace. Neither Aladdin Gaming nor Bazaar
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Company shall, without the prior express written consent of the other party
keep, use or store, or allow to be kept, used or stored, upon or about the
Common Parking Area any Hazardous Substances that may endanger any portion
thereof or Permittee thereon; provided, however, a party may use Hazardous
Substances (in quantities necessary for the activities conducted) in the
business of operating the Common Parking Area to the extent such use is in
strict compliance with applicable laws and prudent Hazardous Substance handling
procedures and such Hazardous Substances, to the extent not fully used, are
properly and lawfully disposed of, without violating applicable laws,
endangering human health and safety or impairing any portion of the Site. Each
party indemnifies the other with respect to any claims arising out of the breach
of the foregoing sentence and from any damages resulting from a party's use of
Hazardous Substances which impairs such other party's use of the Common Parking
Area of their Tract.
ARTICLE 3
USE FEE AND ALLOCABLE COSTS
3.1 Base Fee.
(a) Commencing on the Opening Date and for the balance of the
affected Accounting Period, Aladdin Gaming shall pay to Bazaar Company, in such
legal tender of the United States of America as at the time of payment shall be
acceptable for the payment of public and private debts, a fee in the amount of
Three Million Two Hundred Thousand Dollars ($3,200,000) per annum (the "Base
Fee"), payable in twelve (12) equal monthly installments during each year, in
advance, on the first day of the calendar month for which such monthly payment
is being made. Should the Opening Date occur on a day other than the first day
of the calendar month, then the Base Fee for such first fractional month shall
be paid on the Opening Date and shall be computed on a daily basis for the
period from the Opening Date to the end of such calendar month and at an amount
equal to 1/360th of the Base Fee for each such day, and, thereafter, shall be
computed and paid as aforesaid.
(b) Commencing on the first day of the calendar month following the
end of the fifth Accounting Period (the "Adjustment Date") and on the first day
of the calendar month following the end of each successive fifth Accounting
Period thereafter, the Base Fee shall be adjusted in accordance with percentage
increases, if any, in the CPI over the preceding five (5) years, which increase
shall be capped at five percent (5%) per annum. The initial Base Fee shall be
increased by a percentage equal to the percentage increase, if any, in the CPI
published for the calendar month which is three (3) months prior to the month in
which the Adjustment Date occurs (the "Comparison Month") as compared to the CPI
published for the same calendar month immediately preceding the Opening Date
(the "Base Month"). Notwithstanding anything to the contrary herein, if the
CPI for any applicable Comparison Month shall be less than the CPI for the Base
Month, the Base Fee shall remain at the same amount payable immediately prior to
the applicable Adjustment Date. Commencing on the first day of the calendar
month following the end of the sixty-ninth Accounting Period of the term of this
Agreement, and on the first day of the calendar month following the end of each
successive tenth Accounting Period thereafter through the end of the term, the
Base Fee shall be adjusted to market rate.
3.2 Allocable Costs.
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(a) Bazaar Company shall submit to Aladdin Gaming, promptly following
the Effective Date, and in each Accounting Period thereafter, at least ninety
(90) days prior to the first day of the calendar month following the first
anniversary of the Effective Date, and in each successive Accounting Period
thereafter, a reasonable estimate of the total Parking Operating Costs to be
incurred by Bazaar Company during the next Accounting Period (the "Budget"), and
each party's Allocable Share of Parking Operating Costs with respect thereto
(the "Estimated Cost Statement"). Aladdin Gaming may object to the Budget
and/or the Estimated Cost Statement within thirty (30) days of its receipt
thereof, in which event the parties shall negotiate in good faith in an attempt
to reach an agreement. If an agreement concerning the Budget and/or Estimated
Cost Statement is not reached within twenty (20) days of an objection, then the
objection shall be subject to the procedures for Arbitration set forth in
Article 10.1 hereof; provided, however, that during such arbitration, Aladdin
Gaming shall pay to Bazaar Company Aladdin Gaming's Allocable Share of Parking
Operating Costs, as hereinafter provided, based upon the lesser of (x) the
actual cost of the subject Parking Operating Costs for the previous Accounting
Period, plus ten percent (10%), or (y) the Estimated Cost Statement. The
failure of Bazaar Company to timely submit a Budget or the Estimated Cost
Statement shall not preclude Bazaar Company from enforcing its right to collect
Aladdin Gaming's Allocable Share of Parking Operating Costs.
(b) Aladdin Gaming shall pay its Allocable Share of Parking Operating
Costs in twelve (12) equal monthly installments, in advance, on the first day of
each calendar month commencing on the Effective Date (and on and after the
Opening Date, together with its next installment of the Base Fee due), pursuant
to the Estimated Cost Statement. At any time, Bazaar Company, with the
reasonable approval of Aladdin Gaming, may elect to adjust monthly estimated
payments contained in the Estimated Cost Statement to more closely reflect
actual Parking Operating Costs being incurred in order to reduce the magnitude
of any year-end reconciliation. Should the Effective Date occur on a day other
than the first day of the calendar month, then for such first fractional month
the Allocable Share of Parking Operating Costs shall be paid on the Effective
Date and shall be computed on a daily basis for the period from the Effective
Date to the end of such calendar month and at an amount equal to 1/360th of the
Allocable Share of Parking Operating Costs for each such day, and, thereafter,
shall be computed and paid as aforesaid.
(c) Within ninety (90) days following the end of each Accounting
Period, Bazaar Company shall provide Aladdin Gaming with a full, complete and
itemized separate statement, with reasonable supporting documentation as may be
requested, showing the actual Parking Operating Costs incurred during such
Accounting Period. Aladdin Gaming shall also have the right, upon reasonable
notice and at its sole cost and expense, to audit Bazaar Company's records with
respect to the immediately preceding Accounting Period and its allocation of
Parking Operating Costs. If any party has paid more than its Allocable Share of
Parking Operating Costs during any such Accounting Period, such party shall
receive a credit towards its next payment of its Allocable Share of Parking
Operating Costs. If any party has paid less than its Allocable Share of Parking
Operating Costs for such Accounting Period, such party shall pay the deficiency
within thirty (30) days after receipt of such year-end statement.
3.3 Resolution of Disputes. If Aladdin Gaming disagrees with Bazaar
Company's year-end reconciliation of the Allocable Share of Parking Operating
Costs, Aladdin Gaming shall be entitled to object by written notice to Bazaar
Company within thirty (30) days of receipt of such year-
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end statement. If the parties cannot reach an agreement within thirty (30) days
following such notice, the Dispute shall be resolved by Arbitration pursuant to
the provisions of Section 10.1 hereof.
3.4 Creation of Lien and Personal Obligation for Payment of Allocable
Share. Aladdin Gaming and Bazaar Company covenant for the benefit of the other,
regardless of whether such covenant is expressed in any deed to a Tract, that
the delinquent amount of its Allocable Share of Parking Operating Costs and the
delinquent amount of any other payments owing by a party hereunder, together
with any late charges, attorneys' fees or interest due on any delinquent amount,
shall be a charge and a continuing lien upon its Tract, effective upon
recordation of a notice of delinquency as provided herein. The total amount so
due shall be the personal obligation of the party owing such amount and shall
remain the personal obligation of such previous party, and shall pass to
Transferees of such previous party as a lien and charge against its Tract.
Notwithstanding the foregoing, no Mortgagee shall be liable for the payment of
liens for an Allocable Share of Parking Operating Costs or any other payments to
be made by a party hereunder except those accruing after the Mortgagee obtains
title to the Tract encumbered by its Mortgage pursuant to an Involuntary
Transfer but shall take subject to any lien encumbering the property at the time
such Mortgage is recorded. Any Involuntary Transferee shall take title to the
Tract subject to the Mortgage free and clear of any claims and liens for unpaid
Allocable Shares of Parking Operating Costs or other unpaid charges. Any such
Involuntary Transferee who so acquires title to the Tract shall be liable for
payment of Allocable Shares of Parking Operating Costs accruing after the date
of such Involuntary Transfer. Following any such Involuntary Transfer, the
party owing the delinquent amount shall remain personally liable for the payment
thereof.
3.5 Offset Rights. The parties hereto are relying on full performance
under both this Agreement and the Bazaar Lease. The failure of Aladdin Gaming
to pay the Use Fee shall be offset against any amount due from Bazaar Company
under the Bazaar Lease and against the payments due under that subordinated
debenture (the "Subordinated Debt") issued by Bazaar Company to Aladdin Gaming,
LLC upon the terms and conditions set forth in the Amended LLC Agreement (the
"Offset Rights").
3.6 Sublicense to Aladdin Music. Aladdin Gaming shall have the right to
enter into a parking sublicense agreement with Aladdin Music for the purpose of
passing through to such entity one-third of the parking fees and costs incurred
by Aladdin Gaming hereunder (which parking fees and costs Aladdin Music hereby
agrees to assume) relating to Aladdin Gaming's use and its Permittees' use of
the Common Parking Area, including the right to use any portion of the
non-exclusive Common Parking Area; however, Aladdin Gaming's payments to Bazaar
Company hereunder are not contingent upon Aladdin Gaming's receipt of any sums
under any such agreement. Bazaar Company and Aladdin Gaming hereby agree that if
and when Aladdin Music is not indirectly wholly-owned by Aladdin Gaming then
this Agreement shall be amended and restated as a tri-party agreement with
Aladdin Music as the third party with its own obligations and benefits on the
same terms as otherwise exist in this Agreement, except that it bears sole
responsibility for its 25% Allocable Share of Parking Operating Costs with a
corresponding reduction in Aladdin Gaming's Allocable Share of Parking Operating
Costs to 50%. Each party shall cause its Mortgagee to subordinate to such
restated and amended tri-party agreement.
11
ARTICLE 4
TERM
This Agreement shall commence on the Effective Date and shall thereafter
run until December 31, 2097. If Bazaar Company holds over at the Bazaar Site
with Aladdin Gaming's consent following the expiration or any earlier
termination of the Bazaar Lease, this Agreement shall remain in full force and
effect until such time as Bazaar Company shall cease to remain in possession and
control of the Bazaar Site.
ARTICLE 5
INSURANCE
After the Effective Date or after the Opening Date, as applicable, and
throughout the term of this Agreement each party shall maintain through CIP, or
otherwise shall cause to be maintained, in full force and effect with a
financially responsible insurance company or companies, such insurance coverage
as is required in Article 8 of the REA, and to the extent not covered thereby,
garage liability and garage keepers liability policies of not less than Two
Million Dollars ($2,000,000) each subject to deductibles of no greater than Five
Thousand Dollars ($5,000) for each vehicle and Twenty Five Thousand Dollars
($25,000) for each loss covering bodily and personal injury and property damage
for operation of the garage, and comprehensive and collision coverage for
physical damage to vehicles in Bazaar Company's or its Permittees' care, custody
and control. Bazaar Company shall submit any proposed substitution or
modification of such insurance coverage to Aladdin Gaming for Aladdin Gaming's
approval at least forty-five (45) days in advance, which consent shall not be
unreasonably withheld or delayed.
ARTICLE 6
OPERATION; MAINTENANCE
6.1 Operation and Maintenance. Bazaar Company shall be solely responsible
for the operation and maintenance of the Common Parking Area. Subject to
Article 7 and Section 10.2 of this Agreement, Bazaar Company shall operate and
maintain or cause to be operated and maintained the Common Parking Area in good
order, condition and repair, and in first-class condition. Without limiting the
generality of the foregoing, with respect to the Common Parking Area, Bazaar
Company shall observe and comply with those operation, repair, maintenance,
alteration and restoration obligations and standards set forth in Articles 6 and
9 of the REA.
6.2 Parking Regulations.
(a) The use and operation of the Common Parking Area shall be subject
to such reasonable rules, regulations and restrictions as are imposed and
promulgated by Bazaar Company from time to time (the "Parking Regulations").
Copies of the proposed Parking Regulations and, after their implementation, any
proposed amendments to the Parking Regulations, shall be provided to Aladdin
Gaming at least thirty (30) days prior to their adoption by Bazaar Company.
Within ten (10) days of its receipt of the proposed Parking Regulations (or
amendments thereof), Aladdin Gaming
12
shall notify Bazaar Company in writing of any reasonable objections. If Aladdin
Gaming so objects, the parties shall meet and confer in good faith with one
another and their authorized representatives and consultants in an attempt to
resolve their differences during the ten (10) day period following such
notification. If the parties are unable to resolve their differences during
such time period, any party making the demand shall submit to Arbitration
pursuant to the provisions of Section 10.1 hereof. Notwithstanding the
generality of the foregoing, unless Aladdin Gaming and Bazaar Company, in their
sole and absolute discretion, mutually agree, no fee of any type shall be
charged to or collected from any Permittees, including commercial Permittees,
for parking or the right to park vehicles in, or for the use of, or for the
passage through, the Common Parking Area, except for any charges that may be
associated with any valet parking service operated in the Common Parking Area,
which valet parking service fees, if any, shall be reasonably approved by both
parties.
(b) Bazaar Company and Aladdin Gaming shall designate certain areas
within the Common Parking Area or on other land outside the Site within a
reasonable distance from the Site for use as automobile parking space for
certain Permittees of the Site including, without limitation, officers,
directors, managers, and employees of Bazaar Company, Aladdin Gaming, Aladdin
Music and their respective tenants and subtenants (the "Employee Parking
Areas").
(c) So long as such Permittees do not violate the Parking
Regulations, Permittees of the Redeveloped Aladdin shall not be prohibited or
prevented from parking in any portion of the Common Parking Area other than (i)
the Employee Parking Areas, which are for the exclusive use of certain
designated Permittees, and (ii) spaces reserved for valet parking services.
6.3 Use of Entire Structure. Subject to Section 6.4, if at any time
Bazaar Company should determine that it is not necessary to operate or keep open
for use by the public any portion of the Common Parking Area, with the approval
of Aladdin Gaming, it may close that portion of the Common Parking Area for the
time period it deems reasonable.
6.4 Compliance with Applicable Law. Although Bazaar Company shall not be
liable specifically to Aladdin Gaming with respect to whether sufficient parking
and/or loading docks and areas are available within the Common Parking Area to
serve each party's businesses and Buildings, Bazaar Company shall be responsible
for operating and maintaining the Common Parking Area, in strict compliance with
all applicable laws, ordinances, orders, rules, regulations, requirements and
permits of all federal, state and municipal governments and the appropriate
departments, commissions, boards and officers thereof, and for operating and
maintaining the Common Parking Area in strict compliance with all covenants,
conditions and restrictions affecting the Site, including the covenants and
requirements of any Mortgage encumbering the Common Parking Area or insurer of
the Common Parking Area.
6.5 Self-Help Cure of Operation and Maintenance Defaults. If any party
fails to perform any of its duties or obligations under this Article 6 with
respect to the operation and maintenance of Common Parking Area, any other
party may at any time give written notice to the party thus failing, setting
forth the specific nonperformance. If such nonperformance is not corrected
within thirty (30) days after receipt of such notice, or if such nonperformance
is such that it cannot be corrected within such time, then if such party fails
to commence the performance of such duties within such period and diligently
prosecute the same to completion thereafter, then, in either such event, the
party giving such notice shall have the right, upon prior written notice, to
perform same, including the right and
13
temporary license to enter upon the other party's Tract to perform same, and
such party which has failed to perform shall pay the performing party's
reasonable costs thereof, provided, however, that these provisions shall be
without prejudice to such non-performing party to contest the right of the other
party to make such repairs or expend such monies. All work performed by such
party shall be performed in compliance with this Article and shall be performed
by such party to the extent necessary to properly operate such party's Tract.
Notwithstanding anything hereinabove contained to the contrary, in the event of
any emergency situation which threatens immediate injury to persons or immediate
danger to property, or material interference with access to a party's Tract, or
in the event of any closure of the Common Parking Area in violation of this
Agreement or the REA, such party may without the notice required above, but with
such notice as is reasonable under the circumstances, cure any such default.
ARTICLE 7
CONDEMNATION,
DAMAGE OR DESTRUCTION
7.1 Condemnation.
(a) The rights and obligations of the parties hereunder in the event
of a permanent taking of fee title to all or substantially all of the Common
Parking Area for any public or quasi-public use under any statute, or by right
of eminent domain, whether by a condemnation proceeding or otherwise, or any
permanent transfer of all or substantially all of the Common Parking Area in
avoidance of an exercise of the power of eminent domain, shall be governed by
and as set forth in the REA. No party other than Bazaar Company shall have any
interest in any condemnation award under this Agreement; provided, however, that
nothing herein shall limit any rights that the Aladdin Gaming may have in any
condemnation award under any other agreement or lease.
(b) The rights and obligations of the parties hereunder in the event
of any taking or any transfer in avoidance of eminent domain of less than
substantially all of the Common Parking Area, or if such taking or transfer is
less than of a permanent nature, shall be governed by and as set forth in the
REA; provided, however, that assuming that the remaining portion of the Common
Parking Area (after reconstruction, if necessary) is reasonably suitable for
continued use as a parking facility and lawfully remains open for operation,
this Agreement shall remain in force and effect as to that remaining portion,
the Base Fee shall continue to be payable by Aladdin Gaming but shall be reduced
in proportion to the number of usable parking spaces before and after the taking
or transfer, and the Allocable Share of Parking Operating Costs allocable to
Aladdin Gaming shall not reflect any amounts expended by Bazaar Company to
rebuild or repair the remaining portions of the Common Parking Area.
7.2 Damage or Destruction.
(a) The rights and obligations of the parties in the event of any
casualty to the Common Parking Area resulting in damage to or destruction of the
Common Parking Area, shall be governed by and as set forth in the REA; provided,
however, that, assuming that any portion of the Common Parking Area lawfully
remains open for operation, this Agreement shall remain in full force and
effect, and the Base Fee shall continue to be payable by Aladdin Gaming but
shall be proportionately reduced to reflect the amount of insurance proceeds
received by Bazaar Company, and
14
the Allocable Share of Parking Operating Costs allocable to Aladdin Gaming shall
not reflect any amounts expended by Bazaar Company to rebuild or repair those
portions of the Common Parking Area that were damaged or destroyed.
(b) Any excess insurance proceeds after a taking or transfer shall be
paid to Aladdin Gaming and Bazaar Company in the same ratio as the required
number of parking spaces in accordance with the County's laws, codes and
regulations bears to the total number of parking spaces in the Common Parking
Area.
7.3 Payment of Excess Costs to Repair. Any costs to repair or rebuild the
Common Parking Area which are in excess of the condemnation award or insurance
proceeds (as applicable) received by Bazaar Company shall be paid by Aladdin
Gaming and Bazaar Company in the same ratio as the required number of parking
spaces in accordance with the County's laws, codes and regulations bears to the
total number of parking spaces in the Common Parking Area.
ARTICLE 8
ASSIGNMENT
Except as set forth in Section 3.6 hereof, the parties shall have no right
at any time during the term of this Agreement to assign, sell or otherwise
transfer any of their respective rights hereunder, unless such assignment is
made in conjunction with the sale of the relevant party's entire Tract (and, in
the case of Aladdin Gaming, the concurrent sale of its interest in the Bazaar
Lease or Subordinated Debt, as applicable), in which case (a) such assignment
shall expressly be made subject to the provisions of this Agreement and the
transferee shall sign all documents necessary to acknowledge its assumption of
the obligations hereunder, and (b) no party shall be released from liabilities,
whether known or unknown, that accrued before such assignment, however, the
transferring party shall be released from all liabilities accruing after such
assignment, except that this Agreement may be collaterally assigned by either
party in connection with the financing of its improvements and, in the case of
Aladdin Gaming, in the event of the sale of the Subordinated Debt.
ARTICLE 9
DEFAULT
9.1 Event of Default. An "Event of Default" or "Default" shall be deemed
to have occurred upon the happening of one or more of the following events:
(a) if any party shall fail to make payment of the Use Fee or
any portion thereof or any other sum owing hereunder when and as the same shall
have become due and payable, and such Default shall have continued for a period
of thirty (30) days after delivery of a notice of delinquency thereof from the
non-defaulting party to the defaulting party (except that if a Dispute regarding
the payment of such Use Fee or other sum has been submitted to Arbitration, the
defaulting party shall have thirty (30) days after the decision of the
Arbitrator to make any required payment);
(b) if any party shall breach or violate any covenants, terms or
obligations set forth in this Agreement and such Default shall have continued
for a period of ninety (90) days after notice thereof from the non-defaulting
party, to the defaulting party, (or if the default is not capable of being
15
cured within such period, the defaulting party fails within such period to
commence to cure such default and to continuously and diligently prosecute and
pursue such cure thereafter to completion); or
(c) subject to Section 10.2 hereof, if, during the term of this
Agreement, Bazaar Company shall abandon or close down the Common Parking Area,
without the consent of Aladdin Gaming, for a period of three (3) consecutive
days.
9.2 Rights and Remedies. If any Event of Default occurs, the
non-defaulting party shall have the following remedies, in addition to any
rights (including the Offset Rights) that it may possess at law or in equity:
(a) The right to bring suit against the defaulting party for the
amount of damage sustained by the non-defaulting party by reason of such Event
of Default, except that no party shall be liable for consequential or punitive
damages; and
(b) The right to seek such injunctive or other equitable relief as
may be necessary to enforce the terms and conditions hereof, it being understood
and agreed that damages may not be an adequate remedy for the breach hereof.
Except as may be limited by the REA, the rights and remedies of any party
hereunder shall be cumulative and not exclusive of any other rights or remedies
of such party at law or in equity.
9.3 Interest on Default; Late Charge. Any installment of a Use Fee or any
other sum due from either party to the other hereunder which is not timely made
shall bear interest from the date that is ten (10) days subsequent to the
defaulting party's receipt of a notice of delinquency from the non-defaulting
party until such payment is received at the rate of fifteen percent (15%) per
annum. Any delinquent payment made by a party and bearing interest pursuant to
the preceding sentence shall include a late charge in the amount of five percent
(5%) of the delinquent amount due. The late charge shall be deemed to
constitute a part of such party's Allocable Share of Parking Operating Costs and
the right to require it shall be in addition to all of such non-delinquent
party's other rights and remedies hereunder, at law or in equity, and shall not
be construed as liquidated damages or as limiting such party's remedies in any
manner.
ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1 Arbitration.
(a) The parties hereunder agree that if they are unable in good faith
to resolve any dispute or disagreement arising under or pursuant to this
Agreement, including any dispute or disagreement about the interpretation or
application of any provision thereof and any dispute arising pursuant to
Sections 3.2(a), 3.3, or 6.2(a) hereof (collectively, a "Dispute"), but not
including any Event of Default or claim of Default thereunder (which shall be
resolved before a court of law), the party seeking arbitration of the Dispute (a
"Demanding Party") shall deliver written notice of demand to resolve Dispute
(the "Demand") to the other party (the "Non-Demanding Party"), which Demand
shall include a brief statement of the Demanding Party's claim or controversy,
the amount thereof and
16
the name of the proposed arbitrator to decide the Dispute (the "Arbitrator").
(b) Within ten (10) days after receipt of the Demand, the
Non-Demanding Party against whom a Demand is made shall deliver a written
response to the Demanding Party. Such response shall include a short and plain
statement of the Non-Demanding Party's defense to the claim and shall also state
whether such Party agrees to the Arbitrator chosen by the Demanding Party. If
the Non-Demanding Party fails to agree to the Arbitrator chosen by the Demanding
Party, then such Non-Demanding Party shall state in its response the name of the
proposed Arbitrator chosen by such non-Demanding Party as the proposed
Arbitrator. If the Non-Demanding Party fails to deliver its written response to
the Demanding Party within ten (10) days after receipt of the Demand, or if the
Non-Demanding Party fails to select in its written response a proposed
Arbitrator, then the Arbitrator selected by the Demanding Party shall serve as
the Arbitrator. An Arbitrator shall not be employed by any party or its
Affiliate, directly, indirectly or as an agent, except in connection with the
arbitration proceeding. Any person appointed as an Arbitrator shall be
knowledgeable and experienced in the matters sought to be arbitrated.
(c) The locale of the Arbitration shall be the offices of the
American Arbitration Association in Las Vegas, Nevada or at such other location
in Las Vegas, Nevada to which the Demanding Party and the Non-Demanding Party
agree.
(d) If the Non-Demanding Party selects a proposed Arbitrator
different than the Arbitrator selected by the Demanding Party, and such
selection is indicated by the Non-Demanding Party in its written response to the
Demanding Party made within ten (10) days after receipt of the Demand, then the
parties shall, for ten (10) days after the Demanding Party's receipt of the
Non-Demanding Party's written response to the Demand, attempt to agree upon an
Arbitrator. If the parties cannot agree upon an Arbitrator within said ten (10)
day period, then a single neutral Arbitrator shall be appointed by the Eighth
Judicial District Court of the State of Nevada in accordance with NRS Section
38.055 on the application of the Demanding Party.
(e) The Arbitrator's powers shall be limited as follows: the
Arbitrator shall follow the substantive laws of the State of Nevada and the
Rules of Evidence of Nevada, and his/her decision shall be subject to review
thereon in accordance with the provisions of NRS Chapter 38.
(f) The costs of the resolution (including all reporter costs) shall
be split among the parties participating in the Arbitration provided, however,
that such costs, along with all other costs and expenses, including attorneys'
fees, shall be subject to award, in full or in part, by the Arbitrator, in
his/her discretion, to the prevailing party. Unless the Arbitrator so award
attorneys' fees, each party shall be responsible for its own attorneys' fees.
(g) To the extent possible, the Arbitration hearings shall be
conducted on consecutive days, excluding Saturdays, Sundays and holidays, until
the completion of the hearings.
(h) In connection with any Arbitration proceedings commenced
hereunder, any party shall have the right to join any third parties in such
proceedings in order to resolve any other disputes, the facts of which are
related to the matters submitted for arbitration hereunder.
(i) The Arbitrator shall render his/her decisions concerning the
substantive issues
17
in dispute in writing. The written decision shall be sent to the parties no
later than thirty (30) days following the last hearing date.
(j) All hearings shall be concluded within ninety (90) days from the
day the Arbitrator is selected or appointed, unless the Arbitrator determines
that this deadline is impractical.
(k) If any of the provisions relating to Arbitration are not adhered
to or complied with, any party may petition the Eighth Judicial District Court
of the State of Nevada for appropriate relief in accordance with NRS Chapter 38.
(l) Upon application of a party to the Eighth Judicial District Court
of the State of Nevada within one (1) year, the award of Arbitrator may be
confirmed and entered as a judgment in a court of competent jurisdiction. All
Arbitration conducted under this Article 10 shall be in accordance with NRS
Chapter 38 (the Nevada Uniform Arbitration Act) and the rules of the American
Arbitration Association to the extent such rules do not conflict with the
procedures herein set forth. To the extent permitted by law, compliance with
this Article 10 is a condition precedent to the commencement by any party of a
judicial proceeding arising out of any dispute relating directly or indirectly
to this Agreement.
10.2 Force Majeure; Discharge and Release. The force majeure provisions
set forth in Article 10 of the REA and the Discharge and Release provisions set
forth in Article 11 of the REA are hereby incorporated into this Agreement in
their entirety by this reference.
10.3 Attorneys' Fees. If any party shall institute any legal action or
proceeding in connection with any Default or claim of Default under this
Agreement, the prevailing party shall be entitled to recover from the
non-prevailing party its reasonable fees and costs, including attorneys' fees
and other reasonable expenses, as fixed by the court in its discretion.
10.4 Notices.
(a) Any and all notices, demands, requests, consents, approvals,
designations, or other communications (collectively for purposes of this Section
10.4, "Notice") required or desired to be given, made, received and communicated
hereunder by any other party shall be in writing by personal delivery, by
deposit in the United States mail, certified or registered, postage prepaid,
return receipt requested, by overnight express delivery service or by facsimile
transmission, to the following addresses and fax numbers:
18
Aladdin Gaming: Aladdin Gaming, LLC
0000 X. Xxxxxxxxxx Xxxx., Xxxxx 00
Xxx Xxxxx, Xxxxxx 00000
Attn.: Xxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy to:
Xxxxxx Xxxxxxx
c/x Xxxxxx Properties
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
and
Xxxxxxx Xxxxxx
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxx 00000
Attn.: Xxxxx X. Xxxxxxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 702-382-8135
and
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxx X. Xxxxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
Bazaar Company: Bazaar Company, LLC
c/o TH Bazaar Centers, Inc.
0000 Xx Xxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx and Xxxxx Xxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to: Xxxx Xxxxxx
TH Bazaar Centers, Inc.
0000 Xx Xxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
and
00
Xxxxx, Xxxxxxx, Xxxx, Xxxxxx & Xxxxxxx LLP
000 X. Xxxxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
Aladdin Music Holdings: Aladdin Music Holdings, LLC
c/o Xxxxxxx Xxxxxx Properties
0000 Xxxx Xxxxxxxxxx Xxxxxxxxx, Xxxxx 00
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy to:
Xxxxxx Xxxxxxx
c/x Xxxxxx Properties
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
and
Xxxxxxx Xxxxxx
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxx 00000
Attn.: Xxxxx X. Xxxxxxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 702-382-8135
and
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxx X. Xxxxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
Each party may designate at any time a different or additional address for its
receipt of Notice by giving at least ten (10) days' notice of such change of
address to all other parties.
(b) Any Notice shall be deemed to have been given, made,
received and communicated, as the case may be, on the date personal delivery was
effected if personally served, three (3) business days after the deposit thereof
in the United States mail, one (1) business day after the deposit thereof with
the overnight delivery service, and on the date of transmission if by facsimile
[and received by the recipient prior to 5:00 p.m. on the recipient's business
day][(provided a hard copy of the same is sent in another manner permitted
herein within twenty-four (24) hours of transmission)]; provided, however, if
delivery is not completed due to the absence of the recipient or
20
his/her refusal to accept delivery, delivery to the Person identified above for
receipt of copies shall be deemed to be delivery to the primary addressee. If
any such Notice requires any action or response by the recipient or involves any
consent or approval solicited from the recipient, such fact shall be clearly
stated in the Notice.
(c) In the event a party shall give Notice to any other party of a
Default, such Party shall concurrently send each of the other parties and
(provided the Mortgagees shall have given to the party giving such Notice a
notice substantially in the form prescribed in Article 15 of the REA) their
Mortgagees a copy of such Notice, and such Mortgagees shall have the same rights
to Cure Defaults under this Agreement by the owner of the Tract encumbered by
their Mortgages as they have to Cure Defaults under the REA.
10.5 Partial Invalidity. If any provision of this Agreement or the
application thereof to any Person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the application of
such provision to Persons or circumstances other than those to which it is held
invalid or unenforceable, shall not be affected thereby, and each provision of
this Agreement shall be valid and be enforced to the fullest extent permitted by
law.
10.6 Governing Law. This Agreement shall be governed by, interpreted
under, and construed in accordance with the laws of the State of Nevada. The
parties intend and agree that the proper form for the litigation of any and all
disputes or controversies arising out of or related to this Agreement, to the
extent that such dispute is not submitted to Arbitration, is any circuit court
of the State of Nevada or the Eighth Judicial District Court of the State of
Nevada in Las Vegas, Nevada. Each of the parties agrees that it will not
commence any action or proceeding arising out of or relating to this Agreement
in any court other than as specified in the preceding sentence on grounds of
forum non conveniens or any other grounds, and hereby stipulates and irrevocably
agrees that said courts have in personam jurisdiction over each of them for such
litigation of any dispute or controversy arising out of or in any way related to
this Agreement.
10.7 Captions. The captions and headings in this Agreement are for
convenience only, are not a part of this Agreement, and do not in any way limit
or amplify the provisions hereof.
10.8 Amendments. The parties agree that the provisions of this Agreement
may be modified or amended, in whole or in part, only by an instrument in
writing, executed and acknowledged by Bazaar Company and Aladdin Gaming. The
parties shall make those modifications and amendments to this Agreement
requested by any of their respective Mortgagees that do not materially increase
their respective obligations hereunder or adversely affect or diminish their
respective rights, so long as such modifications and amendments shall be at no
cost to the non-requesting party.
10.9 Relationship of Parties. The relationship of the parties is that of
licensor and licensee and nothing herein shall be deemed to be a contract for
employment or to constitute an agreement to share profits and losses or to
create a relationship of joint venture, partnership, agent-principal, or any
other type of association between the parties or any officer, director, manager,
member or employee of the parties.
10.10 Time of Essence. Time is of the essence with respect to the
performance of each of the terms, covenants, restrictions and conditions
contained in this Agreement.
21
10.11 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which, taken
together, shall constitute one and the same instrument.
10.12 Binding Obligations. This Agreement shall be binding upon and
inure to the benefit of the successors and permitted assigns of the parties
hereto.
10.13 Waiver. A party's waiver of another party's default or of a
provision of this Agreement must be made in writing, and no such waiver shall be
implied from a party's failure to take or exercise, or delay in taking or
exercising, any action or right in respect thereof (unless the time specified
herein for taking such action or exercising such right has expired). No express
waiver of any default shall affect any default, or cover any period of time,
other than the precise default and period of time specified in such express
waiver. No waiver of any default in the performance of any term, covenant,
restriction or condition of this Agreement shall be deemed or shall constitute a
waiver of any subsequent default or of any other term, covenant, restriction or
condition, nor shall any waiver constitute a continuing waiver. A party's giving
of its consent or approval to any act or request of another party or the single
or partial exercise of any right shall not be deemed to waive or render
unnecessary the consenting party's consent to or approval of or the exercise of
any subsequent acts, requests or rights, whether or not similar.
10.14 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior understandings and writings and respect thereto.
10.15 Conflicts with REA. Notwithstanding anything to the contrary in
Section 10.14 above, to the extent this Agreement fails to address an issue or
matter addressed in the REA, the provisions of the REA shall control.
10.16 Memorandum of Agreement. After the REA has been recorded in the
office of the Recorder of Xxxxx County, Nevada, and prior to the recordation of
any Mortgage, the parties hereto agree that they shall prepare, execute and
cause to be recorded with the Xxxxx County Recorder a Memorandum of Common
Parking Area Use Agreement in the form attached hereto as Exhibit "A". Upon
termination of this Agreement, either party, at the other party's request, will
execute and record a statement of termination of this Agreement which states the
applicable termination date.
22
IN WITNESS WHEREOF, the parties hereto have set forth their hands on the
day and year first above mentioned.
"Aladdin Gaming" "Bazaar Company"
ALADDIN GAMING, LLC, a ALADDIN BAZAAR, LLC, a
Nevada limited liability company Delaware limited liability company
By: Aladdin Bazaar Holdings, LLC, a Nevada
limited liability company, its Member
By: /s/ Xxxxxx Xxxxxxx By: Aladdin Management Corporation,
-----------------------
Xxxxxx X. Xxxxxxx, Executive Vice its Manager
President and Secretary
By: /s/ Xxxx Xxxxxx
---------------------------
Xxxx Xxxxxx, Vice President and
Secretary
By: TH Bazaar Centers Inc., a Delaware
corporation, its Member
By: /s/ Xxxxx Xxxxxx
-------------------
Xxxxx X. Xxxxxx, Senior Vice President
By: /s/ Xxxxx Xxxxx
------------------
Xxxxx X. Xxxxx, Senior Vice President
23
EXHIBIT "A"
MEMORANDUM OF
COMMON PARKING AREA USE AGREEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Aladdin Gaming, LLC
x/x Xxxxxxx Xxxxxx
0000 Xxxx xx Xxxxxxx Xxxxx
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxx Xxxxxxxxxx, Esq.
________________________________________________________________________
MEMORANDUM OF COMMON PARKING AREA USE AGREEMENT
THIS MEMORANDUM OF COMMON PARKING AREA USE AGREEMENT ("Memorandum") is made
as of this __ day of February, 1998, by and between Aladdin Gaming, LLC, a
Nevada limited liability company ("Aladdin Gaming") and Aladdin Bazaar, LLC, a
Delaware limited liability company ("Bazaar Company").
1. Aladdin Gaming and Bazaar Company have entered into that certain
Common Parking Area Use Agreement dated of even date herewith ("Parking
Agreement"), pursuant to which Bazaar Company has agreed to grant Aladdin Gaming
and its permittees a non-exclusive right to use that certain multi-level parking
structure for approximately 4,800 motor vehicles and surface-level parking
facilities for approximately 364 motor vehicles located on that certain real
property located in the County of Xxxxx, State of Nevada, and more particularly
described on Exhibit "A" attached hereto, until December 31, 2097, unless sooner
terminated by the written consent of the parties, and commencing on the date
hereof, for the fees and subject to the terms and covenants set forth in the
Parking Agreement.
2. The purpose of this Memorandum is to give notice of the existence of
the Parking Agreement. To the extent that any provision of this Memorandum
conflicts with any provision of the Parking Agreement, the Parking Agreement
shall control.
1
3. This Memorandum may be executed in counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
ALADDIN GAMING, LLC ALADDIN BAZAAR, LLC
By: TH Bazaar Centers, Inc., a Delaware
corporation
By:
-------------------------
Name: By:
------------------------ -----------------------------------
Title: Xxxxx X. Xxxxxx, Senior Vice President
-----------------------
By:
------------------------------------
By: Xxxxx X. Xxxxx, Senior Vice
--------------------------
President
Name:
------------------------
Title: By: Aladdin Bazaar Holdings, LLC., a Nevada
-------------------------
limited liability company
By: Aladdin Management Corporation, a
Nevada corporation, its manager
By:
-----------------------------
Xxxxxx X. Xxxxxxx, Treasurer
By:
-----------------------------
Xxxx Xxxxxx, Vice President
STATE OF NEW YORK )
) ss.
BOROUGH OF MANHATTAN )
This instrument was acknowledged before me on February ___, 1998, by
__________________ as _____________________ of Aladdin Gaming, LLC.
-----------------------------------
Signature of Notarial Officer
2
STATE OF NEW YORK )
) ss.
BOROUGH OF MANHATTAN )
This instrument was acknowledged before me on February ___, 1998, by
__________________ as _____________________ of Aladdin Gaming, LLC.
--------------------------------------
Signature of Notarial Officer
STATE OF NEW YORK )
) ss.
BOROUGH OF MANHATTAN )
This instrument was acknowledged before me on February ___, 1998, by Xxxxx
X. Xxxxxx as Senior Vice President of TH Bazaar Centers, Inc., Manager of
Aladdin Bazaar, LLC.
--------------------------------------
Signature of Notarial Officer
STATE OF NEW YORK )
) ss.
BOROUGH OF MANHATTAN )
This instrument was acknowledged before me on February ___, 1998, by Xxxxx
Xxxxx as Senior Vice President of TH Bazaar Centers, Inc., Manager of Aladdin
Bazaar, LLC.
--------------------------------------
Signature of Notarial Officer
3
STATE OF NEW YORK )
) ss.
BOROUGH OF MANHATTAN )
This instrument was acknowledged before me on February ___, 1998, by Xxxxxx
X. Xxxxxxx as Treasurer of Aladdin Management Corporation, which is Manager of
Aladdin Bazaar Holdings, LLC, Manager of Aladdin Bazaar, LLC and is Manager of
Aladdin Holdings, LLC.
--------------------------------------
Signature of Notarial Officer
STATE OF NEW YORK )
) ss.
BOROUGH OF MANHATTAN )
This instrument was acknowledged before me on February ___, 1998, by Xxxx
Xxxxxx as Vice President of Aladdin Management Corporation, which is Manager of
Aladdin Bazaar Holdings, LLC, Manager of Aladdin Bazaar, LLC.
--------------------------------------
Signature of Notarial Officer
4
COMMON PARKING AREA
USE AGREEMENT
by and between
ALADDIN GAMING, LLC,
a Nevada limited liability company
"Aladdin Gaming"
and
ALADDIN BAZAAR, LLC,
a Delaware limited liability company
"Bazaar Company"
TABLE OF CONTENTS
Page
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE 1 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
ARTICLE 2 USE OF COMMON PARKING AREA . . . . . . . . . . . . . . . . . . . . . . . .8
2.1 Use by Permittees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
2.2 Limitations on Use. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
ARTICLE 3 USE FEE AND ALLOCABLE COSTS. . . . . . . . . . . . . . . . . . . . . . . .8
3.1 Base Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
3.2 Allocable Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
3.3 Resolution of Disputes. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.4 Creation of Lien and Personal Obligation for Payment of Allocable Share . . . 10
3.5 Offset Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.6 Sublicense to Aladdin Music . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 4 TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 5 INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 6 OPERATION; MAINTENANCE . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.1 Operation and Maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.2 Parking Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.3 Use of Entire Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.4 Compliance with Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . 12
6.5 Self-Help Cure of Operation, and Maintenance Defaults . . . . . . . . . . . . 13
ARTICLE 7 CONDEMNATION, DAMAGE OR DESTRUCTION. . . . . . . . . . . . . . . . . . . 13
7.1 Condemnation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.2 Damage or Destruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7.3 Payment of Excess Costs to Repair . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 8 ASSIGNMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 9 DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
9.1 Event of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
9.2 Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
9.3 Interest on Default; Late Charge. . . . . . . . . . . . . . . . . . . . . . . 15
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Page
ARTICLE 10 MISCELLANEOUS PROVISIONS. . . . . . . . . . . . . . . . . . . . . . 16
10.1 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
10.2 Force Majeure; Discharge and Release. . . . . . . . . . . . . . . . . . . . . 17
10.3 Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
10.4 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
10.5 Partial Invalidity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
10.6 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
10.7 Captions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
10.8 Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
10.9 Relationship of Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
10.10 Time of Essence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
10.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
10.12 Binding Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
10.13 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
10.14 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
10.15 Conflicts with REA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
10.16 Memorandum of Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ii