LEASE
by and between
Aladdin Gaming, LLC,
a Nevada limited-liability company
("Lessor")
and
Aladdin Music Holding, LLC,
a Nevada limited-liability company
("Lessee")
TABLE OF CONTENTS
-----------------
PAGE
ARTICLE I
DEMISED PREMISES -- TERM OF LEASE . . . . . . . . . . . . . . . . . . . . 2
Section 1.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II
RENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE III
PAYMENT OF TAXES, ASSESSMENTS, ETC. . . . . . . . . . . . . . . . . . . . 4
Section 3.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE IV
SURRENDER OF PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 4.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 4.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 4.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 4.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE V
INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 5.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2
PAGE
ARTICLE VI
REPAIRS, MAINTENANCE AND RESTORATION. . . . . . . . . . . . . . . . . . . 7
Section 6.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE VII
CONSTRUCTION, CIIANGES AND ALTERATIONS. . . . . . . . . . . . . . . . . . 7
Section 7.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 7.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE VIII
USE OF PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 8.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE IX
ENTRY ON PROPERTY BY LESSOR AND LESSEE. . . . . . . . . . . . . . . . . . 7
Section 9.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 9.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 9.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE X
CONDEMNATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 10.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE XI
FEE MORTGAGES AND LEASEHOLD MORTGAGES . . . . . . . . . . . . . . . . . . 8
Section 11.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 11.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 11.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 11.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
3
PAGE
ARTICLE XII
ASSIGNMENT. TRANSFERS AND SUBLETTING. . . . . . . . . . . . . . . . . . 12
Section 12.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 12.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 12.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE XIII
DISCHARGE AND RELEASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 13.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE XIV
DEFAULT PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 14.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 14.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 14.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 14.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 14.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 14.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 14.7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE XV
INVALIDITY OF PARTICULAR PROVISIONS . . . . . . . . . . . . . . . . . . 14
Section 15.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE XVI
NOTICES AND CERTIFICATES. . . . . . . . . . . . . . . . . . . . . . . . 15
Section 16.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 16.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4
ARTICLE XVII
GOVERNING LAW AND CHOICE OF FORUM . . . . . . . . . . . . . . . . . . .17
Section 17.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
ARTICLE XVIII
QUIET ENJOYMENT; CONVEYANCE BY LESSOR . . . . . . . . . . . . . . . . .17
Section 18.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
Section 18.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
Section 18.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
ARTICLE XIX
ESTOPPEL CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . .18
Section 19.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
ARTICLE XX
INDEMNITY AND LIABILITY . . . . . . . . . . . . . . . . . . . . . . . .18
Section 20.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
ARTICLE XXI
FORCE MAJEURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Section 21.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
ARTICLE XXII
ARBITRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Section 22.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
5
ARTICLE XXIII
MISCELLANEOUS PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . 19
Section 23.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 23.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 23.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 23.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 23.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 23.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 23.7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 23.8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE XXIV
NO MERGER OF TITLES . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE XXV
COVENANT TO BIND AND BENEFIT RESPECTIVE PARTIES . . . . . . . . . . . . 20
Section 25.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE XXVI
ENTIRE AGREEMENT OF PARTIES . . . . . . . . . . . . . . . . . . . . . . 21
Section 26.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
EXHIBIT A LEGAL DESCRIPTION OF THE MASTER SITE
EXHIBIT B LEGAL DESCRIPTION OF THE DEMISED PREMISES
EXHIBIT C RATIFICATION OF REA
EXHIBIT D MEMORANDUM OF LEASE
6
LEASE
THIS LEASE is made as of February 26, 1998, by and between Aladdin Gaming,
LLC, a Nevada limited liability company ("Lessor"), and Aladdin Music Holdings,
LLC, a Nevada limited liability company ("Lessee").
RECITALS
A. Lessor is the owner in fee simple of certain real property located at
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ (the "Master Site"), upon
which Lessor intends to participate with others in the renovation and expansion
of an existing hotel and casino facility, including, without limitation, the
construction of a themed entertainment shopping center, a hotel/casino complex
and new parking facilities for approximately 4,800 automobiles in a car parking
facility and approximately three hundred sixty-four (364) automobiles in
additional surface parking (the "Master Site "). The Master Site is more
particularly described on Exhibit "A" hereto, which is incorporated herein by
reference.
B. The Master Site includes approximately 4.75 acres of real property
that is located at the ▇▇▇▇▇ of ▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇ Avenue (the "Demised
Premises") and is more particularly described on EXHIBIT "B" attached hereto.
C. Lessee intends to assign its interest in the Demised Premises under
this Lease to Aladdin Music, LLC, a Nevada limited liability company, which
company shall develop, construct and operate a hotel with approximately 1,000
rooms and an approximately 50,000 square foot casino (the "Hotel/Casino
Facilities") on the Demised Premises.
▇. ▇▇▇▇▇▇, Aladdin Bazaar, LLC, a Delaware limited liability company and
Aladdin Holdings, LLC, a Delaware limited liability company ("Holdings") have
entered into that certain Site Work Development and Construction Agreement dated
concurrently herewith ("Site Work Agreement"). Pursuant to the Site Work
Agreement the existing improvements on the Master Site shall be demolished by
Lessor and Holdings.
E. Lessee desires to lease from Lessor and Lessor desires to lease to
Lessee the Demised Premises.
IN CONSIDERATION of the recitals and the mutual promises herein, the
parties hereby agree as follows:
ARTICLE I
DEMISED PREMISES -- TERM OF LEASE
-2-
SECTION 1.1 Lessor does hereby lease, rent, let and demise unto Lessee,
and Lessee does hereby lease, take and hire, pursuant to this Lease, the Demised
Premises, to have and hold the same unto Lessee, its successors and assigns, for
the Term (as defined in Section 1.3 hereof), subject only to the terms and
conditions herein provided and to the encumbrances and exceptions to title of
record as of the date hereof (collectively, the "Permitted Exceptions"). All
buildings, structures and improvements now or at any time hereafter erected,
constructed or situated upon the Demised Premises or any part thereof prior to
or during the continuance of the term of this Lease (including all utilities
systems, loading areas, access ways, fixtures, plants, apparatus, appliances,
furnaces, boilers, machinery, engines, motors, compressors, dynamos, elevators,
fittings, piping, connections, conduits, ducts, equipment, partitions,
furnishings and personal property of every kind and description now or hereafter
affixed or attached or adjacent or subjacent to any such building, structure or
improvement now or hereafter used or procured for use in connection with the
heating, cooling, lighting, plumbing, ventilating, air conditioning,
refrigeration, cleaning or general operation of any such building, structure or
improvement, together with any and all renewals and replacements of, additions
to and substitutes for any such building, structure or improvement or any of the
above referred to property made by Lessee) may be hereinafter sometimes
collectively called the "Improvements". Lessee acknowledges that the existing
Improvements on the Master Site will be demolished by Lessor pursuant to the
Site Work Agreement and agrees to cooperate therewith at no cost or liability to
Lessee except as set forth therein.
SECTION 1.2 It is understood and agreed by the parties that, following
the execution hereof, Lessor shall cause the Demised Premises to be subdivided
into a separate parcel or parcels from the balance of the Master Site, in
accordance with Nevada Revised Statutes ("NRS") 278.320 through NRS 278.469,
inclusive (the "Commercial Subdivision"). Lessee agrees to cooperate with Lessor
to obtain the Commercial Subdivision and to fund its pro rata share of the cost
thereof based upon the ratio that the Demised Premises bears to the Master Site.
Lessor agrees to diligently pursue the Commercial Subdivision and to commence
such process as soon as reasonably practicable after the date hereof, but in any
event so as to complete the Commercial Subdivision prior to the "First Scheduled
Opening Date" (as such term is defined in the Site Work Agreement). As soon as
practicable after obtaining the Commercial Subdivision, and conditioned upon the
cure of any outstanding monetary default (including any mechanics' liens
encumbering the Demised Premises resulting from Lessee's activity), Lessor shall
convey at no cost or expense to Lessee a fee interest in the Demised Premises to
Lessee free and clear of any liens created by Lessor and subject only to the
Permitted Exceptions, any encumbrances and exceptions created in accordance with
the provisions hereof and subject to a right of reverser which provides for the
reversion of the fee to Lessor upon failure to satisfy the Construction
Financing Requirement (as defined below) on or before.December 1, 1998 (the "Fee
Transfer").
SECTION 1.3 This Lease shall commence as of the date hereof and shall
terminate on the earlier to occur of (i) December 31, 2097 (ii) the date upon
which possession of the whole of the Demised Premises and the Improvements is
taken by any governmental or quasi-governmental public authority for any public
or quasi-public use under any statute or by right of eminent domain, as set
forth in Article X (iii) the date upon which Lessee's operating agreement
terminates pursuant
-3-
to its own terms, which date shall be deemed to be the date upon which a
certificate of dissolution of Lessee is filed with the Secretary of State of the
State of Nevada and (iv) the Fee Transfer (such period of time shall be referred
to herein as the "Term"), unless this Lease shall be otherwise sooner terminated
as provided herein. In the event that the Term of this Lease terminates pursuant
to Subsections (ii), (iii), or (iv) above, the parties shall execute,
acknowledge and deliver a ratification of this Lease substantially the form
attached hereto as EXHIBIT "C" (the "Ratification of Lease"), and such
Ratification of Lease shall be deemed executed and effective as of the original
effective date of the REA (as defined in Section 7.1 hereof). Lessee hereby
grants Lessor a limited power of attorney coupled with an interest for the
purpose of executing, acknowledging and delivering the Ratification of Lease
upon the termination of the Term of this Lease pursuant to Subsections (ii),
(iii), or (iv) above. Neither party shall have the right to terminate this Lease
prior to the expiration of the Term under any circumstances, including, without
limitation, the occurrence of an Event of Default (as defined below).
ARTICLE II
RENT
SECTION 2.1 Lessee shall pay to Lessor from and after the grand opening
of the Retail Facility to the public ("Rent Commencement Date"), 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, at the address for
Lessor set forth below or at such other place as Lessor may from time to time
designate in writing, an annual rent in the amount of Ten and No/100 Dollars
($10.00) ("Property Rent"), payable in advance in annual installments commencing
on the Rent Commencement Date and continuing on the same day of each year
thereafter, with payments for periods of less than one year being prorated for
the number of days of that year which are part of the term(s) of this Lease.
SECTION 2.2 Lessee shall pay the Property Rent without notice or demand.
ARTICLE III
PAYMENT OF TAXES, ASSESSMENTS, ETC.
SECTION 3.1 During all times prior to the Commercial Subdivision, Lessee
shall pay or cause to be paid as additional rent, its Allocable Share of Real
Estate Taxes, as such term is defined in, and pursuant to the terms of Section
6.6 of the REA (the "Impositions").
SECTION 3.2 Deliberately Omitted.
SECTION 3.3 The parties intend this Lease to be a "net" Lease, subject
to the terms and conditions of the REA (as defined in Section 7.1 hereof). All
expenses in connection with the operation of the Demised Premises and
Improvements during the Term hereof shall be paid prior to the due date by
Lessee, except as this Lease or the REA expressly provides otherwise.
-4-
SECTION 3.4 Each party, upon the written request of the other party,
shall furnish to the requesting party and, upon the further and separate written
request of the other, to any mortgagee to whom the requesting party is the
mortgagor, within thirty (30) days after the date when any Imposition would
become delinquent, official receipts of the appropriate taxing authority, or
other proof satisfactory to the requesting party or such mortgagee, evidencing
the payment thereof or a decision to proceed diligently under Section 3.5.
SECTION 3.5 Prior to the Fee Transfer, Lessee shall have the right,
after prior written notice to Lessor, to contest the amount or validity, in
whole or in part, of any Imposition by appropriate proceedings diligently
conducted in good faith; provided, however, that Lessee must in any event pay
any such Imposition prior to any action being taken that may adversely affect
the ownership of or any leasehold or mortgagee's interest in the Demised
Premises, in any of the Improvements, or in any portion thereof for nonpayment.
Prior to commencing the contest of an Imposition, Lessee shall notify Lessor of
the nature of the contest and of the amount in issue, and Lessor and Lessee
shall use commercially reasonable efforts to reconcile their respective
positions in relation to the taxing authority. Subject to the terms or
conditions of any mortgage on the Demised Premises, either Lessor or Lessee may,
if it shall so desire, but at its sole expense, endeavor at any time or times to
obtain a lowering of the assessed valuation upon the Demised Premises and the
Improvements, or any part thereof, for the purpose of reducing taxes thereon,
and in such event, the other party will cooperate in effecting such reduction,
provided the other party shall not be obligated to expend any money or provide
any moneys in so cooperating.
SECTION 3.6 Neither party shall be required to join in any proceedings
referred to in Section 3.5 of this Lease that are initiated by the other party
unless the provisions of any law, rule or regulation at the time in effect shall
require that such proceeding be brought by and or in the name of such other
party or any owner of the Demised Premises, in which event the other party shall
join in such proceedings or permit the same to be brought in its name, but shall
not, however, be subjected to any liability for the payment of any costs or
expenses in connection with any such proceedings not initiated by that party and
the party initiating the said proceedings will indemnify and save harmless the
other party from any such costs and expenses, reimbursing the other party
therefor upon demand. Each party shall be entitled to any refund of any
Imposition and penalties or interest from any governmental authority to the
extent such refund represents moneys paid to such governmental authority,
directly or indirectly, by that party.
SECTION 3.7 An official certificate or statement issued or given by any
federal, state, county or municipal authority, or any department, bureau, board
or officer thereof or of any public utility, showing the existence of any
Imposition, together with interest and penalties thereon, the payment of which
is the obligation of Lessee as herein provided, shall be prima facie evidence
for all purposes of this Lease of the existence, amount and validity of such
Imposition.
-5-
ARTICLE IV
SURRENDER OF PREMISES
SECTION 4.1 Subject to the provisions of Articles I and XI hereof and
the provisions of the REA, on the last day of the Term hereof, or upon any
earlier termination of this Lease (except if the Term ends as a result of the
Fee Transfer), Lessee shall surrender and deliver possession of the Demised
Premises and the Improvements to Lessor in reasonably good condition considering
their age and use, ordinary wear and tear and the effect of casualty and
condemnation excepted, without delay and free and clear of all liens and
encumbrances other than (a) the Permitted Exceptions, or (b) those created in
accordance with the provisions hereof or the REA. At the end of the Term (except
if the Term ends as a result of the Fee Transfer), the title to and ownership of
the Improvements shall automatically vest in Lessor without the execution of any
further instrument, but Lessee shall execute a quitclaim deed and any other
appropriate conveyancing documents to Lessor if Lessor so requests.
SECTION 4.2 Notwithstanding any other provisions of this Lease, where
furnished by or at the expense of Lessee or any subtenant, Lessee may (or if
required by Lessor, shall) remove furniture, trade fixtures and business
equipment, furnishings and personal property of every kind, regardless of
whether or not originally classified as Improvements, at or prior to the
termination of this Lease or by such subtenant at or prior to the termination of
its sublease; provided, however, that the removal thereof will not impair the
structural integrity of the Improvements. Any damage to the Improvements
resulting from such removal shall be repaired by Lessee to the reasonable
satisfaction of Lessor, taking into account normal wear and tear.
SECTION 4.3 Any personal property of Lessee which shall remain in the
Improvements for more than thirty (30) days after the termination of this Lease
and the removal of Lessee, or any personal property of any subtenant which shall
remain in the Improvements for more than thirty (30) days after the termination
of this Lease and the removal of any such subtenant from the Improvements, may,
at the option of Lessor, be deemed to have been abandoned by Lessee or such
subtenant and may be retained by Lessor as its property or may be disposed of,
without accountability, in such a manner as Lessor may see fit.
SECTION 4.4 The provisions of this Article IV shall survive any
termination of this Lease.
ARTICLE V
INSURANCE
SECTION 5.1 The parties agree that they shall, throughout the Term of
this Lease, maintain, or cause to be maintained, in full force and effect, such
policy or policies of insurance as shall be required under Article 8 of the REA.
-6-
ARTICLE VI
REPAIRS, MAINTENANCE AND RESTORATION
SECTION 6.1 Deliberately Omitted.
ARTICLE VII
CONSTRUCTION, CIIANGES AND ALTERATIONS
SECTION 7.1 Deliberately Omitted.
SECTION 7.2 All construction performed on the Demised Premises or the
Hotel/Casino Facilities shall be done in accordance with Articles 3 and 9 of the
REA.
ARTICLE VIII
USE OF PROPERTY
SECTION 8.1 Use of the Demised Premises shall be governed by the REA
and, as applicable, the Site Work Agreement.
ARTICLE IX
ENTRY ON PROPERTY BY LESSOR AND LESSEE
SECTION 9.1 Lessee shall permit Lessor and Lessor's authorized
representatives to enter the Demised Premises and Improvements at all reasonable
times during usual business hours after reasonable notice to Lessee for the
purpose of inspecting the same and observing the manner in which Lessee
protects, maintains and repairs the Demised Premises and complying with the Site
Work Agreement.
SECTION 9.2 During the last ten ( 10) years of the Term, Lessor shall
have the right to enter the Demised Premises and Improvements at all reasonable
times during usual business hours after reasonable. notice to Lessee and upon
Lessee's consent (which Lessee shall not unreasonably withhold) for the purpose
of showing the same to prospective purchasers and prospective tenants of the
Master Site, exclusive of the Demised Premises and Improvements, provided any
such entry is in compliance with Lessee's reasonable security requirements and
applicable gaming laws. Lessee shall have the right to enter the Master Site and
HoteVCasino Facilities at all reasonable times during usual business hours after
notice to Lessor and upon Lessor's consent (which Lessor shall not unreasonably
withhold) for the purpose of showing the same to prospective assignees of
Lessee's interest in or prospective subtenants of the Demised Premises, provided
any such entry is in compliance with Lessor's reasonable security requirements
and applicable gam~ng laws.
-7-
SECTION 9.3 Nothing contained herein is intended to alter the rights of
the parties to the REA regarding rights of access.
ARTICLE X
CONDEMNATION
SECTION 10.1 In the event that the whole of the Demised Premises shall be
taken by any governmental or public authority for any public or quasi-public use
under any statute or by right of eminent domain, whether by a condemnation
proceeding or otherwise, then this Lease shall terminate on the earlier of the
date that title to or possession of the Demised Premises and Improvements is
taken and Property Rent and other charges provided herein to be paid by Lessee
or already paid by Lessee shall be apportioned and paid by Lessee or refunded by
Lessor to Lessee, as appropriate, to such date. In the event that a portion of
the Demised Premises is condemned, then this Lease shall remain in full force
and effect as to the portion of the Demised Premises remaining after such
taking; PROVIDED, HOWEVER, that if such partial taking occurs prior to the Fee
Transfer, Lessee's Allocable Share of Real Estate Taxes shall be recalculated
and Lessor shall refund any amounts Lessee overpaid for the applicable tax year.
Lessee shall have the right to all awards and payments provided as compensation
for any such taking, and Lessor hereby agrees to assign and transfer to Lessee
any such awards and payments received by it, except those expressly allocated to
the Lessor's interest in the Demised Premises. Lessor and Lessee shall cooperate
to jointly adjust and settle all claims to the award.
ARTICLE XI
FEE MORTGAGES AND LEASEHOLD MORTGAGES
SECTION 11.1 As used herein, "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 any portion of the Master Site owned or
leased by it ("Mortgaged Premises"). "Mortgagee" shall mean either the trustee
and beneficiary/mortgagee, individually or collectively as appropriate, under a
Mortgage or the fee owner or lessor following a Sale and Leaseback provided that
such persons are not in possession of the Mortgaged Premises of the applicable
party. A "Sale and Leaseback" shall mean a transaction in which (a) a party who
is the fee owner of its Mortgaged Premises conveys a fee or a leasehold estate
in all or a portion of its Mortgaged Premises for financing purposes and,
immediately thereafter, such party, its affiliate or any guarantor of such
party's covenants, agreements and obligations set forth in this Lease or in the
REA, leases or subleases such Mortgaged Premises or portion thereof so conveyed,
or (b) a party holding a leasehold estate in its Mortgaged Premises assigns said
estate (or a portion thereof) or subleases such Mortgaged Premises (or a portion
thereof) for financing purposes and, immediately thereafter, such party, its
affiliate or any guarantor of such party's covenants, agreements and obligations
set forth in this Lease or in the REA subleases such Mortgaged Premises or
portion thereof so assigned or subleased.
-8-
SECTION 11.2 Any present or future Mortgage or other lien or encumbrance
affecting or encumbering Lessor's fee title to the real property constituting
the Demised Premises (the "Fee") (any such Mortgage or other lien or encumbrance
shall be referred to herein as a "Fee Mortgage") shall be subject and
subordinate to this Lease. Lessor and Lessee acknowledge and agree that
concurrently herewith, Lessor is encumbering the Fee with a Fee Mortgage in
favor of Bank of Nova Scotia as Administrative Agent on behalf of certain
lenders.
SECTION 11.3 Lessee shall have the right, at any time and from time to
time, to encumber, by mortgage, deed of trust or other property instrument, the
leasehold interest herein demised on such terms, conditions, and maturity as
Lessee shall determine, and to enter into any and all extensions, modifications,
amendments, replacements, and refinancing thereof as Lessee may desire (all of
the foregoing being referred to herein collectively as "Leasehold Mortgages" and
singularly as a "Leasehold Mortgage").
(b) Lessor shall simultaneously deliver to the holder of each
Leasehold Mortgage ("Leasehold Mortgagee") and/or each trustee ("Trustee")
of any trust indenture or deed of trust relating to the Leasehold Mortgage
identified by written notice from Lessee to Lessor, a duplicate copy of any
and all notices of default or other notices which Lessor may deliver to
Lessee pursuant to the terms of this Lease, and any such notice shall not
be effective as against any such Leasehold Mortgagee or Trustee until the
duplicate copy is so delivered. A different address may be designated by
any such Leasehold Mortgagee and Trustee by notice delivered to Lessor from
time to time. Any such Leasehold Mortgagee or Trustee may, at its option
and at any time, pay any of the Rents or other sums of money herein
stipulated to be paid by Lessee or do any other act or thing required of
Lessee by the terms of this Lease in accordance with the provisions of
Sections 11.3(f) and (g) hereof; and all payments so made, and all things
so done or performed by any such Leasehold Mortgagee or Trustee shall be as
effective to cure Lessee's default as the same would have been if done and
performed by Lessee instead of by any such Leasehold Mortgagee or Trustee.
The loan documents related to any such Leasehold Mortgage (the "Loan
Documents") may, if Lessee so desires, be so conditioned as to provide
that, as between the Leasehold Mortgagee (or Trustee) and Lessee, the
Leasehold Mortgagee (or Trustee), on making good and performing any such
default or defaults on the part of Lessee, shall be thereby subrogated to
any and all of the rights of the person or persons to whom any payment is
made by the Leasehold Mortgagee (or Trustee), and all of the rights of
Lessee hereunder. The Leasehold Mortgagee (or Trustee) shall not be or
become liable to Lessor as an assignee of this Lease until such time, if
any, as the Leasehold Mortgagee (or Trustee) shall by foreclosure or other
appropriate proceedings in the nature thereof, or as the result of any
other action of remedy provided for in the Loan Documents (or Leasehold
Mortgage), or by proper conveyance from Lessee, either acquire the rights
and interests of Lessee under the terms of this Lease or actually take
possession of the Demised Premises, and such liability of Leasehold
Mortgagee (or Trustee) shall terminate upon the Leasehold Mortgagee (or
Trustee) assigning such rights and interests to another party or
relinquishing such possession, as the case may be, provided
-9-
that such termination of liability as to the Leasehold Mortgagee (or
Trustee) shall not extinguish any default hereunder or any such liability
as to any other person or persons.
(c) Should any Leasehold Mortgagee or Trustee acquire Lessee's
interest in this Lease and the Demised Premises by foreclosure or other
appropriate proceedings in the nature thereof, or as a result of any other
action or remedy provided for by any Leasehold Mortgage, or by a proper
conveyance from Lessee, such Leasehold Mortgagee or Trustee shall take
Lessee's interest in the Demised Premises subject to all the provisions of
this Lease; and shall, so long as and only so long as it shall be the owner
of the leasehold interest, assume personally the obligations of Lessee
under this Lease.
(d) Should any Leasehold Mortgagee or Trustee acquire Lessee's
interest in this Lease and in the Demised Premises by foreclosure or other
appropriate proceedings in the nature thereof, or as a result of any other
action or remedy provided for by any Leasehold Mortgage, or by proper
conveyance from Lessee, such Leasehold Mortgagee or Trustee may, subject to
the provisions of Article XII, assign this Lease by sale or otherwise. Any
assignee of such Leasehold Mortgagee or Trustee, or any purchaser of the
leasehold interest from such Leasehold Mortgagee or Trustee, or any person
taking through any other means from such Leasehold Mortgagee or Trustee
and/or their respective successors in interest shall take such leasehold
interest subject to all the agreements, conditions, covenants and terms of
this Lease on the part of Lessee to be kept, observed and performed, and
shall as a condition of such assignment, purchase or other taking, assume
and agree by writing in form approved by and delivered to Lessor to perform
all such agreements, conditions, covenants and terms, whereupon the
assignor thereof shall be relieved thereafter of any liability hereunder.
(e) No such foreclosure, assignment, sale or hypothecation of the
Demised Premises shall relieve, release, or in any manner affect the
liability of Lessee under this Lease.
(f) Notwithstanding anything to the contrary contained herein, any
Leasehold Mortgagee or Trustee shall have until thirty (30) days after the
later of (i) notice or (ii) the expiration of the cure period given to
Lessee under this Lease to cure any default under this Lease, provided that
if such default is a non-monetary default and is not capable of cure within
such thirty (30) day period, then such period as is reasonably necessary to
cure such default, so long as such Leasehold Mortgagee or Trustee shall
diligently proceed to do so. If the non-monetary default is such that
possession of the Demised Premises is necessary to cure the same, then the
period of time within which the Leasehold Mortgagee or Trustee may cure
shall be extended by the period of time necessary for the Leasehold
Mortgagee or Trustee to acquire Lessee's interest in this Lease and the
Demised Premises by foreclosure or other appropriate proceedings (which
extension shall include any period of time during which the Leasehold
Mortgagee or Trustee is prohibited or delayed from commencing or
prosecuting such proceedings by reason of the bankruptcy or insolvency of
Lessee), provided
-10-
that the Leasehold Mortgagee or Trustee promptly commences and diligently
prosecutes such proceedings.
(g) Deliberately Omitted.
(h) Lessor shall not agree to any mutual termination or accept any
surrender of this Lease, nor shall Lessor consent to any material amendment
or modification of this Lease, without the prior written consent of each
Leasehold Mortgagee or Trustee.
(i) Lessor agrees to execute such amendments or modifications of this
Lease as may be reasonably required by a Leasehold Mortgagee or Trustee, at
Lessee's request, provided that any such amendments and modifications do
not in any material respect diminish any right or increase any obligation
of, or adversely affect, Lessor and are in form reasonably satisfactory to
Lessor and the holder of the Fee Mortgage.
SECTION 11.4
(a) Upon termination of this Lease by reason of rejection of this
Lease in a bankruptcy of Lessor or for any other reason (other than as a
result of the Fee Transfer), Lessor shall give notice thereof to the first
priority Leasehold Mortgagee or Trustee, and such Leasehold Mortgagee or
Trustee shall have the option, upon notice to Lessor deposited in the mails
not later than ninety (90) days after notice *om Lessor of such
termination, to elect to receive, in its own name or in the name of its
nominee or designee, from Lessor a new lease of the Demised Premises for
the unexpired balance of the Term hereof, or any renewal or extension
hereof, on the same terms and conditions as are in this Lease set forth,
which new lease shall be effective as of the date of termination of this
Lease and Lessor agrees promptly to execute such lease, provided:
(i) such Leasehold Mortgagee or Trustee shall simultaneously
with the giving of such notice cure any monetary default of Lessee;
and
(ii) such Leasehold Mortgagee or Trustee immediately commences to
remedy, and thereafter diligently pursues the remedy of, any
non-monetary default of Lessee, excluding those which by their very
nature are incapable of cure by any other person.
(b) The Leasehold Mortgagee or Trustee, or the nominee or designee of
either, shall thereafter observe and perform all covenants and conditions
in such new lease contained on the part of Lessee to be observed and
performed. Any such new lease shall have priority equal to this Lease. If
such Leasehold Mortgagee or Trustee (or nominee or designee) shall become
lessee under such new lease and shall subsequently assign such new lease in
accordance with Article XII herein, then such Leasehold Mortgagee or
Trustee (or nominee or designee) shall thereupon be relieved of liability
under such new lease, provided
-11-
that the assignee expressly assumes all liabilities and obligations of
lessee under such new lease thereafter accruing, and Lessee furnishes
Lessor a copy of such assignment and assumption. The termination of this
Lease prior to the date on which this Lease expires shall not terminate the
right of such Leasehold Mortgagee or Trustee (or nominee or designee) to a
new lease under this Article X1.
ARTICLE XII
ASSIGNMENT. TRANSFERS AND SUBLETTING
SECTION 12.1 The parties shall have the right at any time and from time
to time during the Term hereof to assign, sell or otherwise transfer their
respective interests, in whole or in part, in this Lease and the estate created
by this Lease in accordance with the requirements of the REA; provided, however,
that (a) each such assignment, sale or transfer shall expressly be made subject
to the provisions of this Lease, and (b) any such assignment, sale or transfer
shall be subject to the Discharge and Release provisions of Article XIII hereof.
SECTION 12.2 Lessee shall have the right at any time and from time to
time during the Term hereof to sublet all or any part or parts of the Demised
Premises and to assign, encumber, extend, or renew any sublease, provided that:
(a) each such sublease shall expressly be made subject to the
provisions of this Lease;
(b) each such sublease shall expire, by its express terms, no later
than the end of the Term of this Lease;
(c) Lessee remains primarily obligated to perform Lessee's
obligations hereunder; and
(d) Lessee shall use reasonable efforts to ensure that each sublease
entered into after the Term of this Lease commences shall contain a
provision requiring the sublessee, so long as the terms of such sublease
are recognized and honored, to attorn to Lessor if Lessee defaults under
this Lease, and if the subtenant is notified of Lessee's default and
instructed to make subtenant's rental payments to Lessor.
SECTION 12.3 Lessor agrees, upon written request by Lessee and subject to
the prior agreement of sublessees, to attorn and make payments to Lessor as
provided in Section 12.2 hereof, and that Lessor shall execute a non-disturbance
and attornment agreement upon commercially reasonable terms and in a form and
substance acceptable to Lessor and the holder of the Fee Mortgage, which shall
not require Lessor or the holder of the Fee Mortgage to assume any obligation to
construct the Bazaar improvements.
-12-
ARTICLE XIII
DISCHARGE AND RELEASE
SECTION 13.1 The discharge and release provisions set forth in Article 11
of the REA, along with the definitions set forth in Article 1 of the REA, shall
also apply to this Lease.
ARTICLE XIV
DEFAULT PROVISIONS
Section 14.1 If any one or more of the following events happens, an Event
of Default shall be deemed to have occurred:
(a) if default shall be made in the payment of any Property Rent
payable under this Lease or any part thereof, when and as the same shall
become due and payable, and such default shall continue for a period of
ninety (90) days after written notice thereof from Lessor to Lessee; or
(b) if default shall be made in the payment of any other amounts
payable under this Lease or any part thereof, when and as the same shall
become due and payable, and such default shall continue for a period of
forty-five (45) days after written notice thereof from Lessor to Lessee; or
(c) notwithstanding the foregoing, if any mechanics' lien encumbers
the Demised Premises (other than as may be created by Lessor or its agents)
for more than twenty (20) days following actual notice to Lessee, and
Lessee shall have failed to bond around same in accordance with applicable
law, or have deposited an equivalent amount with the holder of the Fee
Mortgage. Any amount so deposited shall be released to the party entitled
to same upon the resolution of the claim underlying the mechanics lien.
SECTION 14.2 If any Event of Default occurs arising from the nonpayment
of any Property Rents or any other amounts payable under this Lease, Lessor
shall have the right to ▇▇▇ for each installment of such Property Rent or such
other amounts as the same becomes due.
SECTION 14.3 If any Event of Default occurs other than one arising from
the nonpayment of rents ("Nonmonetary Default"), this Lease shall remain in full
force and effect and, if no resolution regarding the Event of Default can be
obtained by agreement of the parties, Lessor shall be required to obtain its
remedies by arbitration in accordance with the REA; provided, however, that
following an arbitration decision requiring Lessee to cure a Nonmonetary
Default, Lessee shall have an additional thirty (30). days after the issuance of
the said decision to cure any such default and, if the default cannot be cured
within such thirty (30) day period, Lessee shall diligently pursue such cure.
-13-
SECTION 14.4 No failure by Lessor or Lessee to insist upon the strict
performance of any provision of this Lease or to exercise any right or remedy
consequent upon a breach hereof and no acceptance of full or partial rent during
the continuance of any such breach (and/or the application thereof toward cure
of the earliest occurring default) shall constitute a waiver of any such breach
or of such provision. No provision hereof to be complied with by Lessee or
Lessor, and no breach thereof shall be waived, terminated, altered or modified,
except by a written instrument executed by Lessor and Lessee. No waiver of any
breach shall affect or alter this Lease, but each and every provision of this
Lease shall continue in full force and effect with respect to any other then
existing or subsequent breach thereof.
SECTION 14.5 The remedies provided herein may be exercised by the parties
entitled thereto singly, in combination, and cumulatively.
SECTION 14.6 Amounts payable under this Lease which become delinquent
shall bear interest, from the delinquency date until paid in full, at the rate
set forth in Section 20.9 of the REA. When the party who owes the delinquent
amount pays it, the party shall also pay the interest accrued thereon. No amount
shall be considered delinquent hereunder until after the expiration of any
applicable notice period or grace period.
SECTION 14.7 If default shall be made by Lessor in the performance of any
obligations of Lessor under this Lease and such default shall continue for a
period of thirty (30) days, and Lessor fails within such period to commence to
cure such default and continuously and diligently thereafter to proceed with the
curing of such default by the earliest date by which it may through continuous,
diligent effort be cured (it being intended that in connection with a default
not susceptible of being cured with due diligence within thirty (30) days, the
time of Lessor within which to cure the same shall be extended for such period
as may be necessary to complete the same with all due diligence), then Lessee
shall have all rights and remedies available at law or in equity and not
otherwise inconsistent with the terms of this Lease or the REA. The holder of
the Fee Mortgage shall be entitled to receive notice and exercise the same or
reciprocal rights as a Leasehold Mortgagee has under Section 11.3 in connection
with a default by Lessee hereunder.
ARTICLE XV
INVALIDITY OF PARTICULAR PROVISIONS
SECTION 15.1 If any provision of this Lease or the application thereof to
any person or circumstance shall, to any extent, be invalid or unenforceable,
the remainder of this Lease, 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 Lease shall be valid
and be enforced to the fullest extent permitted by law.
-14-
ARTICLE XVI
NOTICES AND CERTIFICATES
SECTION 16.1 Unless otherwise provided herein, any notice, communication,
request, reply or advice (herein severally and collectively for convenience,
called "notice" in this Lease) provided or permitted to be given, made or
accepted by either party to the other, must be in writing and may, unless
otherwise expressly provided in this Lease, be given or be served by telecopier
transmittal with the original thereof deposited in the United States mail,
postpaid and certified and addressed to the party to be notified, with return
receipt requested, or by delivering the same to such party in person or by
courier. Notice transmitted via telecopier with an original deposited in the
manner hereinabove described shall be effective, unless otherwise stated in this
Lease, from and after the transmission of said telecopied notice. Notice given
in any other manner shall be effective only if and when received by the party to
be notified. For purposes of notice, the addresses of the parties shall, until
changed as herein provided, be as follows:
LESSOR: Aladdin Gaming, LLC
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Properties
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇ Sornmer
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
LESSEE: Aladdin Music Holdings, LLC
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Properties
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
with copies similarly delivered to:
Aladdin Gaming, LLC
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Properties
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: 212-661 -0700
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
-15-
and
PM (Boston), Inc.
c/o Planet Hollywood International, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Telephone:
Telecopier:
and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: 702-382-8135
and
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
and
Cravath, ▇▇▇▇▇ & ▇▇▇▇▇
Worldwide Plaza
▇▇▇ ▇▇▇▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: 212-474-3700
SECTION 16.2 Notices, demands, requests and consents which shall be served
by registered or certified mail upon Lessor or Lessee in the manner aforesaid
shall be deemed sufficiently served or given for all purposes hereunder (a) five
(5) days after such notice, demand, request or consent
-16-
shall be mailed by United States registered or certified mail as aforesaid in
any Post Office or Branch Post Office regularly maintained by the United States
Government, or (b) upon receipt, if earlier.
ARTICLE XVII
GOVERNING LAW AND CHOICE OF FORUM
SECTION 17.1 This Lease shall be governed by, interpreted under, and
construed in accordance with the laws ofthe State of Nevada. The Parties intend
and agree that the proper forum for the litigation of any and all disputes or
controversies arising out of or related to this Lease, to the extent that
arbitration is not specified for the resolution of such dispute as described
herein, is the Eighth Judicial District Court of the State of Nevada. Each of
the parties agrees that it will not commence any action or proceeding arising
out of or relating to this Lease 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 Lease.
ARTICLE XVIII
QUIET ENJOYMENT: CONVEYANCE BY LESSOR
SECTION 18.1 Lessor covenants that, provided that no Event of Default has
occurred and is continuing, Lessee shall quietly have and enjoy the Demised
Premises and Improvements and all portions thereof throughout the entire Term
hereof but it is understood and agreed that this covenant and any and all other
covenants of Lessor contained in this Lease shall be binding upon Lessor and its
successors and assigns only with respect to breaches occurring during its and
their respective ownership of the Lessor's interest hereunder.
SECTION 18.2 Lessor understands and agrees that Lessee shall have control
over the Demised Premises subject and pursuant to the REA and, if applicable,
the Site Work Agreement.
SECTION 18.3 At no time during the Term of this Lease shall Lessor,
without Lessee's consent (which Lessee shall not unreasonably withhold), grant
any easement, servitude or license or enter any restrictive covenant or accept
any condition or otherwise make any grant or agreement which will affect title
to the real property constituting the Demised Premises or Lessor's estate
therein or Lessor's reversion hereunder except as expressly permitted in the
REA.
-17-
ARTICLE XIX
ESTOPPEL CERTIFICATES
SECTION 19.1 Each party shall at any time, and from time to time, within
ten (10) business days of written notice from the other party, execute,
acknowledge and deliver to such other party and any other party identified by
such other party a statement in writing: (a) clarifying that this Lease is
unmodified and in full force and effect (or, if modified, stating the nature of
such modification and certifying that this Lease as so modified, is in full
force and effect) and the dates to which the rental and other charges are paid
in advance or delinquent, if any, (b) certifying the commencement and
termination dates of the Lease, (c) certifying that there has been no assignment
or other transfer by the certifying party of this Lease, or any interest therein
subject to Articles XI through XII hereof, (d) acknowledging that there are not,
to the certifying party's knowledge, any uncured defaults on the part of the
other party hereunder and that the certifying party has no right of offset,
counterclaim or deduction against rent, or specifying such default if any are
claimed together with the amount of any offset, counterclaim or deduction
alleged by the certifying party, and (e) setting forth any other matters
reasonably required by the requesting party. Any such statements may be relied
upon by any existing owner or prospective purchaser or any present or
prospective lender upon the security of the Demised Premises. The failure of
either party to deliver such statement within such time shall be conclusive and
binding upon that party (i) that this Lease is in full force and effect, without
modification except as may be represented by the requesting party, and that the
status of rent payments is as certified by the requesting party, (ii) that there
are no uncured defaults in the requesting party's performance and that the party
being requested to issue a certificate has no right of offset, counterclaim or
deduction against rental, and (iii) that no more than one month's rent has been
paid in advance. [n addition to the foregoing, Lessor hereby covenants and
agrees, upon the satisfaction by Lessee of the Construction Financing
Requirement and the written request of Lessee, to execute, acknowledge and
deliver to Lessee, or to such other party as Lessee may reasonably direct, a
statement in writing certifying that the Construction Financing Requirement has
been satisfied. Lessor hereby grants to Lessee an irrevocable power of attorney
coupled with a interest for the purpose of executing, acknowledging and
delivering such a statement in connection with the satisfaction of the
Construction Financing Requirement.
ARTICLE XX
INDEMNITY AND LIABILITY
SECTION 20.1 The parties hereto shall be subject to the same indemnity
obligations as are set forth in Section 8.1 of the REA, using the same
definitions as are set forth in Article 1 of the REA.
-18-
ARTICLE XXI
FORCE MAJEURE
SECTION 21.1 The rights and obligations of the parties hereto shall be
subject to the same force majeure provisions contained in the REA.
ARTICLE XXII
ARBITRATION
SECTION 22.1 Any dispute between the parties involving this Lease,
including those arising from disagreements over interpretation or application of
the provisions hereof, and any other disputes involving provisions of this Lease
shall be resolved by binding arbitration conducted in the manner set forth in
Article 12 of the REA; provided, however, that any Party may seek prohibitory
injunctive relief without first submitting the controversy to arbitration.
ARTICLE XXIII
MISCELLANEOUS PROVISIONS
SECTION 23.1 For the purpose of this Lease, unless the context otherwise
requires:
(a) The term "person" shall mean an individual, corporation, limited
liability company, joint venture, general or limited partnership,
unincorporated organizations, tenancy-in-common or government, or any
agency or political subdivision thereof, and the term "successors" shall
include the executors and administrators of any individual.
(b) Words of any gender used in this Lease shall include any other
gender.
SECTION 23.2 Each party shall be separately responsible for any
attorneys' fees it may incur in connection with the negotiation and preparation
of this Lease and other instruments or documents mentioned herein. If there is
any legal action or proceeding between Lessor and Lessee to enforce any
provision of this Lease or to protect or establish any right or remedy of either
party hereunder, the prevailing party shall be entitled to all costs and
expenses, including reasonable attomeys' fees incurred in connection with such
action and in any appeal in connection therewith.
SECTION 23.3 The captions and headings in this Lease are for convenience
only, are not a part of this Lease, and do not in any way limit or amplify the
provisions hereoL
SECTION 23.4 The parties shall cause a Memorandum of this Lease in the
fomm attached hereto as Exhibit "C" to be executed and recorded with the of fice
of the recorder of ▇▇▇▇▇ County, Nevada immediately prior to the recording of
the REA. Upon the termination of this Lease, either
-19-
party, at the other party's request, will execute a recordable statement of
temlination of the Lease which states the applicable temlination date.
SECTION 23.5 The relationship of Lessor and Lessee is that of landlord
and tenant. Nothing herein shall be deemed to be a contract for employment or to
create (a) a joint venture, (b) a partnership, (c) an agent/principal
relationship, (d) an employer-employee relationship, or (e) any other type of
relationship between Lessor and Lessee, or between Lessor and any officer,
director or employee of Lessee. Nothing in this Lease shall be deemed to
interfere with Lessor's or Lessee's right to hire, temlinate or discipline their
respective employees.
SECTION 23.6 It is mutually agreed by and between Lessor and Lessee that
the respective parties hereto shall and they hereby do waive trial by jury in
any action, proceeding or counterclaim brought by either of the parties hereto
against the other on any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of Lessor and Lessee, Lessee's use
or occupancy of the Demised Premises, and/or any claim of injury or damage.
SECTION 23.7 Time is of the essence of this Lease and of all of the
terms, covenants, and conditions hereoL
SECTION 23.8 This Lease may be executed in two or more counterparts and
all of such counterparts, taken together, shall be deemed part of one
instrument.
ARTICLE XXIV
NO MERGER OF TITLES
SECTION 24.1 Except as provided in Article I hereof, so long as any
mortgage on this Lease and the leasehold created hereby has not been fully paid
and satisfied and discharged of record, there shall be no merger of this
leasehold estate with any other interest or title Lessee hereunder may acquire
in the Demised Premises or any part thereof.
ARTICLE XXV
COVENANT TO BIND AND BENEFIT RESPECTIVE PARTIES
SECTION 25.1 The covenants of the parties herein contained shall, subject
to the provisions of this Lease, bind and inure to the benefit of the successors
and assigns of the respective parties hereto, except as otherwise provided
herein.
-20-
ARTICLE XXVI
ENTIRE AGREEMENT OF PARTIES
SECTION 26.1 This Lease constitutes the entire agreement between the
parties pertaining to the subject matter contained in it and supersedes all
prior agreements, representations and understandings of the parties.
Concurrently herewith, the parties are entering into, inter alla the REA and
Lessor is entering into the Site Work Agreement. No addition to or modification
or termination of this Lease shall be binding unless executed in writing by each
of the parties. Except as may be otherwise provided in this Lease, no waiver of
any of the provisions of this Agreement shall be deemed, or shall constitute, a
waiver of any other provision, whether or not similar, nor shall any waiver
constitute a continuing waiver and no waiver shall be binding unless evidenced
by an instrument in writing executed by the party marking the waiver.
[REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
-21-
IN WITNESS WHEREOF, the parties hereto have set forth their hands on the
day and year first above mentioned.
"LESSOR" "LESSEE"
ALADDIN GAMING, LLC, a Nevada ALADDIN MUSIC HOLDINGS, LLC
limited liability company a Nevada limited liability company
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
----------------------------------- -----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Secretary
President and Secretary
-22-
STATE OF NEVADA )
) ss.
COUNTY OF ▇▇▇▇▇ )
This instrument was acknowledged before me on the 4th day of March, 1998,
by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Executive Vice President and Secretary of Aladdin
Gaming, LLC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Notary Public
(My commission expires 2/10/99)
STATE OF NEVADA )
) ss.
COUNTY OF ▇▇▇▇▇ )
This instrument was acknowledged before me on the 4th day of March, 1998,
by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Secretary of Aladdin Music Holdings, LLC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Notary Public
(My commission expires 2/10/99)
-23-
EXHIBIT "A"
LEGAL DESCRIPTION OF THE MASTER SITE
-24-
EXHIBIT "B"
LEGAL DESCRIPTION OF THE DEMISED PREMISES
-25-
EXHIBIT "C"
RATIFICATION OF REA
-26-
EXHIBIT "D"
MEMORANDUM OF LEASE
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Aladdin Gaming, LLC
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Esa.
--------------------------------------------------------------------------------
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE ("MEMORANDUM"), is made as of this day of
February, 1998 by and between ALADDIN GAMING, LLC, a Nevada limited liability
company ("Landlord"), and ALADDIN MUSIC HOLDINGS, LLC, a Nevada limited
liability company ("Tenant").
1. Landlord and Tenant have entered into that certain Lease dated of even
date herewith ("Lease"), pursuant to which Landlord has ground leased to Tenant
and Tenant has ground leased from Landlord that certain real property located in
the County of ▇▇▇▇▇, State of Nevada, and more particularly described on Exhibit
"A" attached hereto (the "Premises"), for a term of ninety-nine (99) years,
commencing on February _, 1998, for the rental and subject to the terms and
covenants set forth in the Lease.
2. The purpose of this Memorandum is to give notice of the existence of
the Lease. The Lease provides for the right of a mortgagee to have a new lease
in the same priority as the Lease. To the extent that any provision of this
Memorandum conflicts with any provision of the Lease, the Lease shall control.
-27-
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.
"LESSOR" "LESSEE"
ALADDIN GAMING, LLC, a Nevada ALADDIN MUSIC HOLDINGS, LLC
limited liability company a Nevada limited liability company
By: By:
--------------------------------- ----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Secretary
President and Secretary
-28-
STATE OF )
) ss.
COUNTY OF )
This instrument was acknowledged before me on the ____ day of __________,
199_, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Executive Vice President and Secretary of Aladdin
Gaming, LLC.
------------------------------
Notary Public
(My commission expires ________)
STATE OF )
) ss.
COUNTY OF )
This instrument was acknowledged before me on the ____ day of __________,
199_, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Secretary of Aladdin Music Holdings, LLC.
--------------------------------
Notary Public
(My commission expires ________)
-29-