Exhibit 10.5
PARKING FACILITY LEASE
between
BORA BORA, LLC,
Landlord
and
▇▇▇▇ LAS VEGAS, LLC,
Tenant
Dated May 3, 2004
TABLE OF CONTENTS
PAGE
SECTION 1 DEMISED PREMISES.................................................1
SECTION 2 TERM.............................................................1
SECTION 3 RENT.............................................................2
SECTION 4 INTENTIONALLY OMITTED............................................2
SECTION 5 FINANCING........................................................3
SECTION 6 USE OF STALLS....................................................3
SECTION 7 ALTERATIONS AND IMPROVEMENTS.....................................3
SECTION 8 UTILITIES........................................................4
SECTION 9 TAXES............................................................4
SECTION 10 INTENTIONALLY OMITTED...........................................4
SECTION 11 MAINTENANCE AND REPAIRS.........................................4
SECTION 12 LIENS...........................................................5
SECTION 13 INSURANCE.......................................................5
SECTION 14 DESTRUCTION OF THE PARKING FACILITY; CONDEMNATION...............6
SECTION 15 INDEMNIFICATION.................................................7
SECTION 16 SUBORDINATION...................................................7
SECTION 17 ASSIGNMENT AND SUBLETTING.......................................8
SECTION 18 LEASEHOLD FINANCING.............................................9
SECTION 19 INTENTIONALLY OMITTED..........................................16
SECTION 20 INTENTIONALLY OMITTED..........................................16
SECTION 21 ESTOPPEL CERTIFICATE...........................................16
SECTION 21 EXPENDITURES...................................................16
SECTION 23 DEFAULT........................................................16
SECTION 24 MISCELLANEOUS..................................................18
PARKING FACILITY LEASE
THIS PARKING FACILITY LEASE (this "Lease") is entered into as of May
3, 2004, (the "Commencement Date") by and between Bora Bora, LLC, a Nevada
limited liability company ("Landlord"), and ▇▇▇▇ Las Vegas, LLC, a Nevada
limited liability company ("Tenant").
WITNESSETH:
WHEREAS, Tenant owns good and marketable title in and to the parcel
of real property described on Exhibit "A" annexed hereto ("Tenant's Property")
upon which Tenant intends to construct and develop a first class luxury hotel
and destination casino resort (the "Hotel"); and
WHEREAS, Landlord owns good and marketable title in and to the
20-acre parcel of real property adjacent to Tenant's Property and described on
Exhibit "B" annexed hereto ("Landlord's Property"); and
WHEREAS, Landlord desires to lease to Tenant and Tenant desires to
lease from Landlord up to 1,317 parking stalls (the "Stalls") in the parking
structure (the "Parking Facility") currently located on the north side of
Landlord's Property, as described and depicted on Exhibit "C" annexed hereto,
together with the right of access to the Parking Facility over the portion of
the Landlord's Property described on Exhibit C-1 (the "Access Area") (the
Stalls and Access Area are referred to herein as the "Premises"), all upon the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the terms, covenants, conditions
and provisions hereinafter set forth and other good and valuable
consideration, it is hereby mutually agreed by and between Landlord and Tenant
as follows:
SECTION 1
DEMISED PREMISES
Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, the Premises, together with all and singular improvements,
appurtenances, rights, privileges, and easements thereunto appertaining during
the Lease Term and subject to the terms and conditions herein contained.
SECTION 2
TERM
2.1 The term of the Lease (the "Lease Term") and payment of Rent (as
defined in Section 3.1 hereof) shall commence on the Commencement Date, and
shall continue for a period of thirty (30) years thereafter (the "Initial
Term") unless terminated earlier as elsewhere herein provided. Tenant may
terminate this Lease on thirty (30) days' written notice to Landlord so long
as Tenant is permitted to do so under the Credit Agreement (as defined in that
certain Amended and Restated Deed of Trust, Assignment of Rents and Leases,
Security Agreement and Fixture Filing, made by Tenant, as Trustor, to Nevada
Title Company, a Nevada corporation, as Trustee, for the benefit of Deutsche
Bank Trust Company Americas, in its capacity as Administrative Agent for the
benefit of the Banks, as Beneficiary, recorded on October 29, 2002 in Book
20021029 as Document No. 03540 of the Official Records of ▇▇▇▇▇ County,
Nevada) and the Mortgage Notes Indenture (as defined in that certain Deed of
Trust, Assignment of Rents and Leases, Security Agreement and Fixture Filing
made by Tenant, as Trustor, to Nevada Title Company, a Nevada corporation, as
Trustee, for the benefit of ▇▇▇▇▇ Fargo Bank, National Association, in its
capacity as the Mortgage Notes Indenture Trustee, as Beneficiary, recorded on
October 29, 2002 in Book 20021029 as Document No. 03548 of the Official
Records of ▇▇▇▇▇ County, Nevada). The Credit Agreement referenced in the
preceding sentence shall hereinafter be referred to as the "WLV Credit
Agreement." "Termination Option Date" shall mean the date that Tenant is
permitted to terminate this Lease under the deeds of trust referenced in this
Section 2.1.
2.2 In the event Tenant is not then in default of its obligations
hereunder beyond any applicable cure period and this Lease has not previously
been terminated, after the expiration of the Initial Lease Term, the Lease
Term shall continue on a month-to-month basis upon the same terms and
conditions as are set forth in this Lease. At any time during any extension of
the Initial Lease Term, Tenant may terminate the Lease by delivering written
notice no later than ten (10) days prior to the expiration of any thirty (30)
day extension period. In the event that such notice is not given within such
time period, the Lease shall continue in effect.
2.3 Upon the expiration or sooner termination of the Lease Term,
Tenant shall cease to have the right to use the Premises.
SECTION 3
RENT
3.1 During the Lease Term, Tenant shall pay as monthly rent for the
Premises the sum of One Dollar ($1.00) per month (the "Rent"). The Rent shall
be due and payable in advance on the first (1st) day of each month.
3.2 All Rents and other monies required to be paid by Tenant
hereunder shall be paid to Landlord without deduction or offset, prior to
notice or demand, in lawful money of the United States of America, at the
address of Landlord and set forth in Section 24.5 or at such other place as
Landlord may from time to time designate in writing.
3.3 If Tenant fails to pay, when due and payable, any Rent or any
other amounts or charges to be paid by Tenant hereunder within ten (10) days
after written notice from Landlord that the amount is past due, such unpaid
amounts shall bear interest from the due date thereof to the date of payment
at a rate equal to the prime rate of interest last ascertained by the
Commissioner of Financial Institutions of the State of Nevada pursuant to
Nevada Revised Statutes 99.040, plus five (5) percentage points (the "Default
Rate").
SECTION 4
[INTENTIONALLY OMITTED]
SECTION 5
FINANCING
Landlord may obtain loans from time to time from third parties to
finance acquisition and development of Landlord's and its Affiliates' real
property, including Landlord's Property. For purposes of this Lease, an
"Affiliate" of a party shall mean any person or entity (a) that is owned or
controlled by the party, (b) that owns or controls the party, (c) that is
owned or controlled by a person or entity that owns or controls the party, (d)
that owns or controls an Affiliate of the party, or (e) that is owned or
controlled by an Affiliate of the party. As used in this definition, the words
"owns" or "owned" refer to the ownership of twenty percent (20%) or more of
the equity interest in the person or entity so owned, regardless of the manner
of ownership. Also, as used in this definition, ownership or control may be
direct or indirect. By its execution of this Lease, Tenant (i) acknowledges
and consents to Landlord's collateral assignment of its rights hereunder to
its and its Affiliates' lenders (collectively "Lenders"), including the
beneficiary under the Deed of Trust (as defined and described on Schedule I
attached hereto, the "Deed of Trust"); (ii) acknowledges and affirms Tenant's
agreement to attorn performance obligations to the benefit of Lenders in the
same manner as it would with respect to Landlord if any such Lender exercises
its rights under any collateral assignment from Landlord; and (iii) agrees to
execute such separate consents and acknowledgements to and of Landlord's
collateral assignment of this Lease to such third party Lenders.
SECTION 6
USE OF STALLS
6.1 The Stalls are leased to Tenant solely for the purpose of
facilitating Hotel employee parking and, from time to time as reasonably
necessary, overflow customer parking for Hotel special events. Tenant shall
not use or suffer to be used the Stalls, or any portion of the Parking
Facility, for any other purpose or purposes whatsoever, without Landlord's
prior written consent, which consent may be withheld in Landlord's absolute
discretion.
6.2 The parties acknowledge that Tenant's use of the Stalls and the
Parking Facility for Hotel employees is nonexclusive and that Landlord and its
Affiliates shall have the right to use the Parking Facility, as reasonably
necessary, to accommodate the parking requirements of their respective
business operations. Provided, however, that Landlord agrees to limit the use
of the Parking Facility by others so as not to deprive Tenant of the number of
Stalls granted to Tenant hereunder.
SECTION 7
ALTERATIONS AND IMPROVEMENTS
Landlord agrees that it shall not make any material alterations,
improvements or changes in or to the Stalls, the Parking Facility or the
Access Area which would materially interfere with Tenant's use of the Stalls.
SECTION 8
UTILITIES
Landlord shall be responsible for the cost and expense of installing
any utilities for the Parking Facility.
SECTION 9
TAXES
Prior to the opening of the Hotel for business, Landlord will, at
Landlord's own cost and expense, bear, pay, and discharge prior to
delinquency, all real estate taxes, assessments, sewer rents, water rents and
charges, duties, impositions, license and permit fees, charges for public
utilities of any kind, payments and other charges of every kind and nature
whatsoever, ordinary or extraordinary, foreseen or unforeseen, general or
special, which shall, pursuant to present or future law or otherwise, during
such period, have been or be levied, charged, assessed, or imposed upon, or
become due and payable out of or for, or become or have become a lien on the
Premises. After the opening of the Hotel for business, all such items shall be
paid by Tenant. Provided, however, that for such part of the Lease Term, if
any, as the Premises are not separately assessed but are included as part of
Landlord's Property for computation of real property taxes and assessments, or
are separately assessed but the taxes attributable thereto are billed to
Landlord, then Tenant's share of taxes shall be an amount equal to eleven and
two-tenths percent (11.2%) of the total assessments for Landlord's Property;
provided further that following the release of the lien of the Deed of Trust,
Landlord and Tenant shall either create a tax parcel for the Premises separate
from the remainder of Landlord's Property, or equitably adjust the percentage
of property taxes payable by Tenant for the Premises following adjustments in
assessments for Landlord's Property attributable to construction or demolition
activity on Landlord's Property other than the Premises. All taxes payable by
Tenant hereunder shall be paid to Landlord, as the case may be, on the later
of (a) ten (10) days before such tax becomes delinquent or (b) ten (10) days
after Landlord, or the taxing authority, notifies Tenant that a payment is
due. Subject to any reimbursement due from Tenant as provided herein, Landlord
shall be responsible for timely payment of all assessments on Landlord's
Property. In the event Landlord fails to timely pay any such assessment,
Tenant may, but is not obligated to pay such assessment directly to the taxing
authority and pursue reimbursement of Landlord's share of such assessment from
Landlord. Upon the termination of this Lease, Landlord shall promptly
reimburse Tenant for any amounts paid by Tenant pursuant hereto attributable
to the period of time following such termination. All amounts payable pursuant
hereto shall be prorated on the basis of a 365-day year.
SECTION 10
[INTENTIONALLY OMITTED]
SECTION 11
MAINTENANCE AND REPAIRS
Prior to the opening of the Hotel for business, Landlord shall keep
and maintain in good order, condition and repair (including any such
replacement and restoration as is required for that purpose) the Premises and
every part thereof and any and all appurtenances thereto wherever located,
including, without limitation, all repairs and replacements, structural and
nonstructural, foreseen and unforeseen, which are necessary to maintain and
preserve the Premises in good condition. All repairs shall be made in
accordance with all laws, promptly, efficiently, and in good workmanlike
manner. After the opening of the Hotel for business, such obligations shall be
borne by Tenant.
SECTION 12
LIENS
12.1 Tenant, at all times, whether by bond or otherwise, shall keep
Landlord, the Premises, and the leasehold estate created by this Lease free
and clear from any claim, lien or encumbrance, tax lien or levy, mechanic's
lien, attachment, garnishment or encumbrance arising directly or indirectly
from any obligation, action or inaction of Tenant whatsoever, except to the
extent permitted under Sections 17 and 18 below and except for "Permitted
Liens" as defined in the Credit Agreement (as that term is defined in the Deed
of Trust). The Credit Agreement, the Deed of Trust and any other documents or
instruments executed in connection therewith shall be collectively referred to
in this Lease as the "Credit Agreement Documents."
12.2 Tenant shall, within ten (10) days of the filing of any lien
that is not permitted under Section 12.1 above, either pay or satisfy the same
in full and procure the discharge thereof or commence an action to discharge
the same, fully bond such lien, and diligently prosecute such action, or shall
cause Tenant's contractor to do the same.
SECTION 13
INSURANCE
13.1 Landlord will, at its sole cost and expense, maintain in full
force and effect:
(a) a policy of comprehensive or commercial general
liability insurance issued by an insurance carrier approved by Landlord,
insuring against loss, damage or liability for injury or death to persons and
loss or damage to property occurring from any cause whatsoever in connection
with the Parking Facility. Tenant shall be named as an additional insured
under each such policy of insurance; with a combined single limit for bodily
injury and property damage of not less than two million ($2,000,000) per
occurrence and five million ($5,000,000) in the aggregate;
(b) a standard form of all-risk, commercial property
insurance with extended coverage insurance covering leasehold improvements,
furniture, fixtures and equipment, and personal property located in or on the
Parking Facility. Such insurance shall be in an amount equal to the current
replacement value of the property required to be insured.
13.3 Tenant shall not use or occupy, or permit the Stalls or the
Parking Facility or the Access Area to be used or occupied, in a manner that
will make void any insurance then in force.
13.4 Landlord and Tenant hereby waive any and all rights of recovery
from the other party and its officers, agents and employees for any loss or
damage, including consequential loss or damage, caused by any peril or perils
(including negligent acts) that are caused by or result from risks insured
against under any form of insurance policy.
13.5 Each policy of insurance provided for in this Section 13 shall
contain an express waiver of any and all rights of subrogation thereunder
whatsoever against the other party, its officers, directors, agents and
employees.
13.6 All of the provisions of this Section 13 are subject to, and
shall be modified as reasonably necessary to be consistent with, the
requirements of the Credit Agreement.
SECTION 14
DESTRUCTION OF THE PARKING FACILITY; CONDEMNATION
14.1 During the period prior to the earlier to occur of the
expiration of the Initial Lease Term or the Termination Option Date or the
opening of the Hotel, should any portion of the Premises be destroyed
("Damaged") by any cause whatsoever and provided that restoration is permitted
under the Credit Agreement, Landlord shall restore the Premises. Following the
opening of the Hotel but prior to the earlier to occur of the expiration of
the Initial Lease Term or the Termination Option Date, should any portion of
the Premises be Damaged by any cause whatsoever and provided that restoration
is permitted under the WLV Credit Agreement and the Mortgage Notes Indenture,
Tenant shall restore the Premises so Damaged. After the earlier to occur of
the expiration of the Initial Lease Term or the Termination Option Date,
should the Premises be Damaged, Tenant may elect either to terminate this
Lease or request that Landlord restore the Premises by delivery of written
notice to Landlord within thirty (30) days after the casualty event giving
rise to the Damage. If Tenant fails to give timely notice of Tenant's
election, or if after making a timely election Landlord refuses to restore the
Premises, this Lease shall terminate at the end of the calendar month
following the calendar month in which such casualty event shall have occurred.
If either Landlord or Tenant is required to restore the Premises during the
Initial Lease Term or if following the Initial Lease Term Tenant requests
Landlord to restore the Premises, and if Landlord, in its sole and absolute
discretion, agrees to restore the Premises, the following provisions shall
apply: After any such casualty and during the reconstruction period, Rent
shall continue to accrue and be payable as if such event of destruction had
not occurred. Landlord or Tenant, as the case may be, shall reconstruct the
Damaged improvements with all reasonable diligence (allowing for adjustment
and collection of insurance proceeds, licensing, permitting, and approvals).
No Damage to the Premises by fire, windstorm, or any other casualty shall
entitle Tenant to violate any of the provisions of this Lease.
14.2 Should the whole of the Premises be condemned or taken by a
competent authority for any public or quasi-public purpose, then this Lease
shall terminate upon such taking. If such portion of the Parking Facility is
condemned or taken such that the remaining number of Stalls thereof will not
be reasonably adequate to accommodate the parking requirements of Hotel
employees, as determined by Tenant in its sole and absolute discretion, Tenant
shall have the option to terminate this Lease by notifying Landlord of such
election in writing within twenty (20) days after such taking. If by such
condemnation and taking a portion of the Parking Facility is taken and the
remaining part thereof is suitable for the purposes for which Tenant has
leased the Stalls, as determined by Tenant in its sole and absolute
discretion, this Lease shall continue in full force and effect.
SECTION 15
INDEMNIFICATION
Tenant ("Indemnitor") hereby covenants and agrees to indemnify,
defend, save and hold Landlord and other users of the Parking Facility
(collectively "Indemnitee"), the Parking Facility, the Access Area, Landlord's
Property and the leasehold estate created by this Lease free, clear and
harmless from any and all liability, loss, costs, expenses (including
attorneys' fees), judgments, claims, liens and demands of any kind whatsoever
in connection with, arising out of, or by reason of any act, omission, or
negligence of Indemnitor, its agents, employees, servants, contractors,
subtenants or licensees while in, upon, about, or in any way connected with,
Landlord's Property, the Access Area, the Parking Facility or the Stalls or
arising from any accident, injury or damage, howsoever and by whomsoever
caused, to any person or property whatsoever, occurring in, upon, about or in
any way connected with Landlord's Property, the Premises or any portion
thereof other than as a result of the intentional or negligent acts of
Indemnitee.
SECTION 16
SUBORDINATION
16.1 The lien on the Premises created and securing the obligations
under the Credit Agreement Documents and all supplements, amendments,
modifications, renewals, replacements, and extensions of and to them shall
unconditionally be and remain at all times a lien on the Premises prior and
superior to this Lease, to all leasehold estates of whatever nature created
herein and to all rights and privileges of Tenant hereunder. This Lease and
the leasehold estates created hereunder, together with all other rights and
privileges of Tenant hereunder are hereby unconditionally made subordinate to
the lien of the Credit Agreement Documents in favor of Administrative Agent
(as defined in the Credit Agreement). Tenant consents to Landlord and
Administrative Agent entering into the Credit Agreement Documents. Tenant
further declares, agrees, and acknowledges that Administrative Agent in making
disbursements under the Credit Agreement Documents, has no obligation or duty
to, nor has Administrative Agent represented that it will, see to the
application of such proceeds by the person or persons to whom they are
disbursed by Administrative Agent, and any application or use of such proceeds
for purposes other than those provided for in the Credit Agreement Documents
shall not defeat the subordination made in this Lease, in whole or in part.
Tenant further represents and acknowledges that Administrative Agent may
exercise any and all of its remedies under the Credit Agreement Documents
without regard to the consequences of such actions upon this Lease and
Tenant's rights hereunder and further acknowledges that upon the recording of
a trustee's deed following exercise of the power of sale by Administrative
Agent under the Deed of Trust or a receipt of a deed by the Administrative
Agent in lieu of a foreclosure of this Lease, Tenant's rights hereunder,
including Tenant's right to occupy the Premises, shall immediately terminate.
16.2 Nothing in this Lease shall be deemed or construed to be an
agreement by Administrative Agent to perform any covenant of Landlord as
landlord under this Lease at any time. Administrative Agent shall have no
liability to Tenant whatsoever in connection with the actions or omissions of
Administrative Agent under the Credit Agreement Documents regardless of the
effects of such actions and omissions upon this Lease and the rights granted
to Tenant hereunder.
16.3 Except as permitted in the Credit Agreement Documents or as
previously consented to in writing by Administrative Agent, Tenant shall not
enter into any amendment, modification, or other agreement relating to this
Lease or assign or sublet any portion of this Lease or Tenant's rights
hereunder.
16.4 If Administrative Agent forecloses upon the Deed of Trust or if
it takes possession under the Deed of Trust, Administrative Agent shall not be
(a) liable for any damages or other relief attributable to any act or omission
of any prior landlord under this Lease, including Landlord; or (b) bound by
any modification or amendment of or to this Lease unless the amendment or
modification shall have been approved in writing by Administrative Agent.
16.5 Tenant agrees upon request of Landlord to further subordinate
this Lease and its rights hereunder to the lien of any additional mortgage,
deed of trust or other encumbrance, together with any renewals, extensions or
replacements thereof now or hereafter placed, charged or enforced against the
Premises, or any portion thereof, and to execute and deliver at any time, and
from time to time, upon demand by Landlord, such documents as may be
reasonably required to effectuate such subordination within ten (10) days
after receiving such documents.
SECTION 17
ASSIGNMENT AND SUBLETTING
17.1 Except as otherwise set forth herein, Tenant shall not assign,
mortgage, pledge, hypothecate or encumber this Lease nor the leasehold estate
hereby created or any interest herein, or sublet the Stalls or any of them, or
license the use of all or any portion of the Premises without the prior
written consent of Landlord, which consent may be withheld in Landlord's sole
discretion. Provided, however, Tenant shall have the right to assign this
Lease to any successor-in-interest to the Hotel and, upon such assignment
Tenant shall be relieved from any further obligation hereunder. The
restriction or limitation on use of the Premises shall continue to apply to
any subtenant or assignee hereunder. Any consent by Landlord to any act
requiring consent pursuant to this Section 17.1 shall not constitute a waiver
of the necessity for such consent to any subsequent act. Tenant shall pay all
reasonable costs, expenses and reasonable attorneys' fees that may be incurred
or paid by Landlord in processing, documenting or administering any request of
Tenant for Landlord's consent required pursuant to this Section 17.1.
17.2 Landlord may reasonably require that each proposed assignee or
sublessee agree, in a written agreement satisfactory to Landlord, to assume
and abide by all the terms and provisions of this Lease, including those which
govern the permitted uses of the Premises.
17.3 In the absence of an express agreement in writing to the
contrary executed by Landlord, no assignment, mortgage, pledge, hypothecation,
encumbrance, subletting or license hereof or hereunder shall act as a release
of Tenant from any of the provisions, covenants and conditions of this Lease
on the part of Tenant to be kept and performed.
17.4 Notwithstanding anything to the contrary contained herein,
Tenant may encumber Tenant's leasehold estate under this Lease to secure
financing of any indebtedness or any obligations of Tenant or any Affiliate of
Tenant, in such amount and on such terms as Tenant may determine appropriate
in its discretion, and Landlord hereby agrees to effect such amendments and
modifications of this Lease as may be required by the obligee of such
indebtedness or obligations to make this Lease "financeable" and to execute
and deliver to such obligee such documents and instruments as such obligee may
require in connection therewith; provided, however, that Landlord shall have
no obligation to agree to any amendments or modifications or to execute any
documents or instruments that require Landlord to subordinate its fee interest
to the lien of any such encumbrance or to extend the term of this Lease or
decrease the obligation of Landlord hereunder.
SECTION 18
LEASEHOLD FINANCING
18.1 Leasehold Mortgage Permitted. Nothing in this Lease shall be
construed as restricting in any manner the right of Tenant, from time to time,
or at any time, to create one or more liens on, or encumber, by mortgage, deed
of trust or trust deed in the nature of a mortgage (each, a "Leasehold
Mortgage") the leasehold interest of Tenant in the Premises, and subject to
the restrictions and limitations contained in any such instrument as to
further conveyances, transfers and assignments, Tenant will have the right at
any time, and from time to time, to convey, transfer and assign its interest
under this Lease to a mortgagee, trustee or beneficiary, of its designee (each
"Leasehold Mortgagee"), under a Leasehold Mortgage given to secure any note or
other obligation of Tenant or an Affiliate thereof.
18.2 Certain Benefits to Leasehold Mortgage. If Tenant shall execute
any Leasehold Mortgage, then, in such event and so long as such Leasehold
Mortgage shall constitute a lien or encumbrance against the leasehold estate
of Tenant hereunder, the following provisions shall apply:
18.2.1 Amendment of Lease. No agreement by Landlord and
Tenant for the assignment, cancellation, surrender, acceptance of surrender or
termination, modification or amendment of this Lease shall be effective as to
any Leasehold Mortgagee without the written consent of such Leasehold
Mortgagee. If the Leasehold Mortgagee whose lien has first priority consents
to an amendment, any Leasehold Mortgagee of a junior lien on the Premises will
not unreasonably withhold its consent to such amendment.
18.2.2 Exercise of Section 365(h)(i) Rights. Landlord
agrees, for the benefit of such Leasehold Mortgagee, that the right of
election arising under Section 365(h)(i) of the Bankruptcy Code shall be
exercised by the most senior Leasehold Mortgagee at such time and not by
Tenant. Any attempted exercise by Tenant of such right of election in
violation hereof shall be void.
18.2.3 Loss Payee. The name of each such Leasehold Mortgagee
shall be added to the "Loss Payable Endorsement" of any and all insurance
policies required to be carried by Tenant under this Lease.
18.2.4 Proceeds of Casualty and Condemnation.
Notwithstanding anything in this Lease to the contrary, in the event of any
casualty to or condemnation of the Premises or any portion thereof, the
Leasehold Mortgagees shall be entitled to receive all insurance proceeds
and/or condemnation awards as their interests appear (up to the amount of the
indebtedness secured by the Leasehold Mortgage) otherwise payable to Tenant or
Landlord or both and apply them in accordance with the Leasehold Mortgage and
shall have the right, but not the obligation, to restore the Premises.
18.2.5 Merger. If Tenant shall acquire fee title, or any
other estate, title or interest in the Premises which is the subject of this
Lease, or any part thereof, or if the leasehold estate created by this Lease,
or any portion thereof, shall be assigned, sold or otherwise transferred to
the owner of such fee title or other estate, title or interest in the Premises
which is the subject of this Lease, then in either such event, upon the
election of the Leasehold Mortgagee first in priority expressly made in
writing at any time thereafter, each Leasehold Mortgage shall attach to and be
a lien upon such fee title and/or other estate so acquired (but only as the
same pertains to the Premises), and such fee title and/or other estate so
acquired shall be considered as mortgaged, assigned and conveyed to each
Leasehold Mortgagee and the lien of each such Leasehold Mortgage shall be
spread to cover such estate with the same force and effect as though
specifically mortgaged, assigned or conveyed in such Leasehold Mortgage (and
upon request of any Leasehold Mortgagee, either or both Landlord and Tenant
shall execute further mortgages, assignments of leases and rents, amendments
to documents and instruments as such Leasehold Mortgagee may reasonably
require for such purpose); provided, however, that notwithstanding the
foregoing, if and so long as any of the indebtedness secured by any such
Leasehold Mortgage shall remain unpaid, unless the Leasehold Mortgagee
thereunder shall otherwise in writing expressly consent, the fee title to the
Premises which is the subject of this Lease and the leasehold estate created
by this Lease shall not merge but shall always be kept separate and distinct,
notwithstanding the union of said estates either in Landlord or in Tenant, or
in a third party, by purchase or otherwise. Nothing in this Section 18.2.5
shall be deemed to subordinate or require Landlord to subordinate the fee
interest of Landlord in the Premises to the lien of any Leasehold Mortgage.
18.2.6 Right of Entry. Each Leasehold Mortgagee shall have
the right to enter upon the Premises at any time for any purpose, including
curing any defaults by Tenant under this Lease, and Landlord hereby agrees to
accept performance and compliance by any such Leasehold Mortgagee of any
covenants, agreements, provisions, conditions and limitations on Tenant's part
to be kept, observed or performed hereunder, with the same force and effect as
though kept, observed and performed by Tenant. Any default by Tenant that is
not susceptible to being cured by a Leasehold Mortgagee shall be deemed waived
by Landlord.
18.2.7 Notice to Tenant. Landlord shall serve Tenant with
notice if Landlord files, or has filed against it, a petition under chapters 7
or 11 of the Bankruptcy Code. Such notice shall be served within twenty-four
(24) hours of such filing. Landlord shall, upon serving Tenant with any notice
of (1) a bankruptcy fling as herein described, (2) default pursuant to the
provisions of this Lease, or (3) a matter on which Landlord may predicate or
claim a default, at the same time serve a copy of such notice upon every
Leasehold Mortgagee that has provided Landlord with notice of its identity and
address, and no such notice by Landlord to Tenant hereunder shall have been
deemed duly given unless and until a copy thereof has been so served on every
such Leasehold Mortgagee.
18.2.8 Termination. Anything contained in this Lease to the
contrary notwithstanding, if any default shall occur which entitles Landlord
to terminate this Lease, or to exercise any other rights, powers or remedies
available to it under this Lease, Landlord shall have no right to terminate
this Lease or to exercise any of such rights, powers or remedies unless
following the expiration of the period of time given Tenant to cure such
default (or the act or omission which gave rise to such default), Landlord
shall notify every Leasehold Mortgagee of Landlord's intent to so terminate or
exercise any such rights, powers or remedies ("Default Notice") at least (x)
sixty (60) days in advance of the proposed effective date of such termination,
or exercise of any rights, powers or remedies if such default is capable of
being cured by the payment of money, and (y) ninety (90) days in advance of
the proposed effective date of such termination, or exercise of any such
rights, powers or remedies if such default is not capable of being cured by
the payment of money ("Default Notice Period"). The provisions of Subsection
18.2.9 below shall apply if during such thirty (60) or ninety (90) day Default
Notice Period, any Leasehold Mortgagee shall notify Landlord of such Leasehold
Mortgagee's desire to nullify such notice (the "Nullification Notice").
18.2.9 Procedure on Default.
(a) If Landlord shall elect to terminate this Lease
or obtain possession of the Premises by reason of any default of Tenant, and a
Leasehold Mortgagee shall have delivered the Nullification Notice set forth in
Subsection 18.2.8, the specified date for the termination of this Lease as
fixed by Landlord in its Default Notice or for the obtaining of possession
shall be extended for a period of six (6) months, provided that such Leasehold
Mortgagee shall, during such six (6) month period:
(1) pay or cause to be paid the monetary
obligations of Tenant under this Lease as the same become due, and continue
its good faith efforts to perform all of Tenant's other obligations under this
Lease, excepting (i) obligations of Tenant to satisfy or otherwise discharge
any lien, charge or encumbrance against Tenant's interest in this Lease or the
Premises junior in priority to the lien of the mortgage held by such Leasehold
Mortgagee and (ii) past non-monetary obligations then in default and not
reasonably susceptible of being cured by such Leasehold Mortgagee (including
by reason of a bankruptcy stay or if possession of the Premises is required in
order to cure such default); provided that Leasehold Mortgagee may offset
amounts it expends to cure any defaults by Landlord under this Lease; and
(2) if not enjoined or stayed, take steps
to acquire or sell Tenant's interest in this Lease by foreclosure of the
Leasehold Mortgage or other appropriate means and prosecute the same to
completion with due diligence.
(b) If at the end of such six (6) month period such
Leasehold Mortgagee is complying with Subsection 18.2.9(a) then this Lease
shall not then terminate, and the time for completion by such Leasehold
Mortgagee of its proceedings shall continue so long as such Leasehold
Mortgagee is enjoined or stayed and thereafter for so long as such Leasehold
Mortgagee proceeds to complete steps to acquire or sell Lessee's interest in
this Lease by foreclosure of the Leasehold Mortgage or by other appropriate
means with reasonable diligence. Nothing in this Subsection 18.2.9, however,
shall be construed to extend this Lease beyond the original term thereof or to
require a Leasehold Mortgagee to continue such foreclosure proceedings after
the default has been cured. If the default shall be cured and the Leasehold
Mortgagee shall discontinue such foreclosure proceedings, this Lease shall
continue in full force and effect as if Tenant had not defaulted under this
Lease.
(c) If a Leasehold Mortgagee is complying with
Subsection 18.2.9(a) of this Section, then upon the acquisition of Tenant's
estate herein by such Leasehold Mortgagee or its designee or any other
purchaser at a foreclosure sale or otherwise (and the discharge of any lien,
charge or encumbrance against the Tenant's interest in this Lease or the
demised premises which is junior in priority to the lien of the Leasehold
Mortgage held by such Leasehold Mortgagee and which the Tenant is obligated to
satisfy and discharge by reason of the terms of this Lease) this Lease shall
continue in full force and effect as if Tenant had not defaulted under this
Lease.
18.2.10 Receiver. A Leasehold Mortgagee shall have the right
after institution of foreclosure proceedings to apply to the court for the
appointment of a receiver of the Premises. In the event foreclosure
proceedings have been instituted, any money held by Landlord which becomes
payable to Tenant shall be payable upon demand to such Leasehold Mortgagee as
the interest of such Leasehold Mortgagee may appear when the same so becomes
payable to Tenant. If Landlord shall at any time be in doubt as to whether
such monies are payable to such Leasehold Mortgagee or to Tenant, Landlord may
pay such monies into court and file an appropriate action of interpleader in
which event all of Landlord's costs and expenses (including attorneys' fees)
shall first be paid out of the proceeds so deposited.
18.2.11 No Assumption. For purposes of this Subsection
18.2.11, the making of a Leasehold Mortgage shall not be deemed to constitute
an assignment or transfer of this Lease or of the leasehold estate hereby
created, nor shall any Leasehold Mortgagee, as such, be deemed to be an
assignee or transferee of this Lease or of the leasehold estate hereby
created, so as to require such Leasehold Mortgagee, as such, to assume the
performance of any of the terms, covenants or conditions on the part of Tenant
to be performed hereunder, but the purchaser at any sale of this Lease and of
the leasehold estate hereby created in any proceedings for the foreclosure of
any Leasehold Mortgage, or the assignee or transferee of this Lease and of the
leasehold estate hereby created under any instrument of assignment or transfer
in lieu of the foreclosure of any Leasehold Mortgage, shall be deemed to be an
assignee or transferee within the meaning of this Subsection 18.2.11 and shall
be deemed to have agreed to perform all of the terms, covenants and conditions
on the part of Tenant to be performed hereunder arising and accruing from and
after the date of such purchase and assignment, but only for so long as such
purchaser or assignee is the owner of the leasehold estate.
18.2.12 Successive Sales. Any Leasehold Mortgagee or other
acquiror of the leasehold estate of Tenant pursuant to foreclosure, assignment
in lieu of foreclosure or-other proceedings may, upon acquiring Tenant's
leasehold estate, without further consent of Landlord, sell and assign the
leasehold estate so acquired on such terms and to such persons or
organizations as are acceptable to such Leasehold Mortgagee or acquiror and
thereafter be relieved of all obligations under this Lease; provided that such
assignee has delivered to Landlord its written agreement to be bound by all of
the provisions of this Lease from and after the date of such assignment.
18.2.13 Leasehold Mortgagee Need Not Cure Specified
Defaults. Nothing herein contained shall require any Leasehold Mortgagee or
its designee as a condition to the exercise of its rights hereunder to cure
any default of Tenant not reasonably susceptible of being cured by such
Leasehold Mortgagee or its designee.
18.2.14 Lease Proceedings. Landlord shall give each
Leasehold Mortgagee that has provided Landlord with notice of its interest and
address, prompt notice of any arbitration or legal proceedings between
Landlord and Tenant involving this Lease. Each Leasehold Mortgagee shall have
the right to intervene in any such proceedings and be made a party to such
proceedings, and the parties hereto do hereby consent to such intervention. In
the event that any Leasehold Mortgagee shall not elect to intervene or become
a party to any such proceedings, Landlord shall give such Leasehold Mortgagee
notice of, and a copy of any award or decision made in any such proceedings,
which shall be binding on all Leasehold Mortgagees not intervening after
receipt of notice of arbitration. Tenant agrees that each Leasehold Mortgagee
shall also have the right to intervene in, and be made a party to, any such
proceedings.
18.2.15 Future Leasehold Mortgage: Amendment of Lease.
(a) Notwithstanding anything in this Lease to the
contrary, each Leasehold Mortgagee shall have the right (if it has such right
under its loan documents) to restrict, limit or prohibit the execution of any
other Leasehold Mortgage junior in priority to the lien of such senior
Leasehold Mortgage, or, in the event of the execution of any such junior
Leasehold Mortgage, to accelerate or increase the interest rate under the
indebtedness secured by such senior Leasehold Mortgage; and
(b) In the event of a Leasehold Mortgage (each, a
"Successor Leasehold Mortgage") the proceeds of which are used to pay off in
its entirety the indebtedness secured by any existing Leasehold Mortgage (each
such existing Leasehold Mortgage, an "Initial Leasehold Mortgage"), then the
Successor Leasehold Mortgage shall be deemed to have succeeded to the position
and all of the rights and priorities of the mortgagee under the Initial
Leasehold Mortgage with respect to the mortgagor under the Initial Leasehold
Mortgage and with respect to third parties.
18.2.16 Certificate. Landlord shall, without charge, at any
time and from time to time within ten (10) business days after written request
of Tenant to do so, certify by written instrument duly executed and
acknowledged to any Leasehold Mortgagee or purchaser, or proposed Leasehold
Mortgagee or proposed purchaser, or any other person, firm or corporation
specified in such request: (1) as to whether this Lease has been supplemented
or amended, and if so, the substance and manner of such supplement or
amendment; (2) as to the validity and force and effect of this Lease, in
accordance with its tenor; (3) as to the existence of any default hereunder or
any event which with the passage of time or notice would constitute a default
hereunder; (4) as to the existence of any offsets, claims, counterclaims or
defenses hereto on the part of Landlord or, to Landlord's knowledge, on the
part of Tenant; (5) as to the commencement and expiration dates of this Lease;
and (6) as to any other matters as may be reasonably so requested. Any such
certificate play be relied upon by Tenant and any other person, firm or
corporation to whom the same maybe exhibited or delivered, and the contents of
such certificate shall be binding on Landlord.
18.2.17 Nominee. Any acquisition by a Leasehold Mortgagee of
the leasehold estate under this Lease, or any rights or privileges thereunder
may be taken in the name of such Leasehold Mortgagee or in the name of any
nominee or designee selected by it.
18.2.18 New Lease. In the event of the termination of this
Lease as a result of Tenant's default prior to the expiration of the term, or
in the event of a rejection by Landlord or Tenant of this Lease under Chapter
11 of the Bankruptcy Code, Landlord shall, in addition to providing the
notices of default and termination as required by this Lease, provide each
Leasehold Mortgagee with written notice that the Lease has been terminated or
that Landlord has filed a request with the Bankruptcy Court seeking to reject
the Lease, together with a statement of all sums which would at that time be
due under this Lease but for such termination or rejection, and of all other
defaults, if any, then known to Landlord. Upon any request of the Leasehold
Mortgagee, or its designee, Landlord agrees to enter into a new lease ("New
Lease") of the Premises with such Leasehold Mortgagee or its designee for the
remainder of the term of this Lease, effective as of the date of termination
or rejection, as the case may be, at the Rent, and upon the terms, covenants
and conditions (including all transfer rights, but excluding requirements
which are not applicable or which have already been fulfilled) of this Lease;
provided, however, that (i) the Leasehold Mortgagee whose lien upon the
Premises is superior to the lien of any other Leasehold Mortgage (the "Senior
Leasehold Mortgagee") shall have the right to give notice of its intent to
enter into a New Lease to the Landlord for a period of 60 days from its
receipt of the notice referred to in the first sentence of this Section
18.2.18 and (ii) if the Senior Leasehold Mortgagee does not exercise its right
to enter into the New Lease during this 60-day period; the Leasehold Mortgagee
whose lien upon the Premises is superior to the lien of any other Leasehold
Mortgage (other than the Senior Leasehold Mortgagee) shall have the right to
give notice of its intent to enter into a New Lease to the Landlord during the
remainder of the period(s) specified below; and provided further, however,
(a) Such Leasehold Mortgagee shall make written
request upon Landlord for such New Lease at the later of (1) within one
hundred (100) days after the date such Leasehold Mortgagee receives Landlord's
notice of termination or rejection of this Lease given pursuant to this
Subsection 18.2.18; or (2) within forty-five (45) days after the actual
termination of the Lease as same may have been extended by Subsection 18.2.18
hereof.
(b) Such Leasehold Mortgagee or its designee shall
pay or cause to be paid to Landlord at the time of the execution and delivery
of such New Lease, any and all sums which would at the time of execution and
delivery thereof be due pursuant to this Lease but for such termination and,
in addition thereto, all reasonable expenses, including reasonable attorneys'
fees, court costs and costs and disbursements which Landlord shall have
incurred by reason of such termination and the execution and delivery of the
New Lease and which have not otherwise been received by Landlord from or on
behalf of Tenant. Upon the execution of such New Lease, Landlord shall allow
to Tenant named therein as an offset against the sums otherwise due under this
Subsection 18.2.18 or under the New Lease, an amount equal to the net income
derived by Landlord from the Premises during the period from the effective
date of termination of this Lease to the date of the beginning of the lease
term under the New Lease. In the event of a controversy as to the amount to be
paid to Landlord pursuant to this Section 18.2, the payment obligation shall
be satisfied if Landlord shall be paid the amount not in controversy, and such
Leasehold Mortgagee or its designee shall agree to pay any additional sum
ultimately determined to be due.
(c) Such Leasehold Mortgagee or its designee shall
agree to remedy any of Tenant's defaults of which said Leasehold Mortgagee was
notified by Landlord's notice of termination or rejection and which are
reasonably susceptible of being so cured by such Leasehold Mortgagee or its
designee.
(d) The Tenant under such New Lease shall have the
same right, title and interest in and to the Premises and buildings and
improvements thereon as Tenant under this Lease. Any holder of any such lien,
charge or encumbrance or sublease shall execute such instruments of
non-disturbance and/or attornment as the tenant under the New Lease may at any
time require.
(e) The tenant under any New Lease shall be liable
to perform the obligations imposed on the Tenant by such New Lease only for
and during the period such person has ownership of the Premises.
(f) If more than one (1) Leasehold Mortgagee shall
request a New Lease pursuant to this Section 18.3, Landlord shall enter into
such New Lease with the Leasehold Mortgagee whose mortgage is in the first
lien position, or with the designee of such Leasehold Mortgagee.
(g) Concurrently with the execution and delivery of
any New Lease, Landlord shall assign to the tenant named therein all of the
right, title and interest in and to moneys (including insurance proceeds and
condemnation awards), if any, then held by and payable by Landlord which
Tenant would have been entitled to receive but for the termination of the
Lease. Upon the execution of any New Lease, the tenant named therein shall be
entitled to any rent received under any sublease in effect during the period
from the date of termination of the Lease to the date of execution of such New
Lease.
SECTION 19
[INTENTIONALLY OMITTED]
SECTION 20
[INTENTIONALLY OMITTED]
SECTION 21
ESTOPPEL CERTIFICATE
Tenant agrees that within ten (10) business days of any demand
therefor by Landlord, Tenant will execute and deliver to Landlord a
certificate stating that this Lease is in full force and effect without
amendment, or if amended attaching a copy thereof to the certificate, the date
to which all rentals have been paid, any defaults or offsets claimed by Tenant
and such other information concerning the Lease, the Premises or Tenant as
Landlord may request. Landlord will provide a similar document to Tenant upon
request by Tenant within ten (10) business days after request.
SECTION 22
EXPENDITURES
21.1 Whenever under any provision of this Lease, Tenant shall be
obligated to make any payment or expenditure, or to do any act or thing, or to
incur any liability whatsoever, and Tenant fails, refuses or neglects to
perform as herein required after notice and an opportunity to cure (which
shall be deemed to be thirty (30) days unless provided for specifically
herein), Landlord shall be entitled, but shall not be obligated, to make any
such payment or to do any such act or thing, or to incur any such liability,
all on behalf of and at the cost and for the account of Tenant. In such event,
the amount thereof with interest thereon at the Default Rate, shall constitute
and be collectable as additional Rent on demand.
21.1 Whenever under any provision of this Lease, Landlord shall be
obligated to make any payment or expenditure, or to do any act or thing, or to
incur any liability whatsoever, and Landlord fails, refuses or neglects to
perform as herein required after notice and an opportunity to cure (which
shall be deemed to be thirty (30) days unless provided for specifically
herein), Tenant shall be entitled, but shall not be obligated, to make any
such payment or to do any such act or thing, or to incur any such liability,
all on behalf of and at the cost and for the account of Landlord. In such
event, the amount thereof with interest thereon at the Default Rate, shall be
collectable on demand.
SECTION 23
DEFAULT
23.1 Tenant shall be in default of this Lease if:
23.1.1 Tenant shall fail to make timely and full payment of
any sum of money required to be paid hereunder and such failure continues for
ten (10) days after written notice thereof from Landlord;
23.1.2 Tenant shall fail to perform any other term, covenant
or condition of Tenant contained in this Lease, and such failure continues for
thirty (30) days after written notice thereof from Landlord; provided,
however, that if such failure is impossible to correct within thirty (30) days
Tenant shall not be deemed in default if Tenant commences correction within
said thirty (30) day period, and diligently pursues such correction to
completion;
23.1.3 At any time after the Hotel opens for business,
Tenant should cease operations of the
Hotel;
23.1.4 There is filed any petition in bankruptcy or Tenant
is adjudicated a bankrupt or insolvent, or there is appointed a receiver or
trustee to take possession of Tenant or of all or substantially all of the
assets of Tenant, or there is a general assignment by Tenant for the benefit
of creditors, or any action is taken by or against Tenant under any state or
federal insolvency or bankruptcy act, or any similar law now or hereafter in
effect; or
23.2 In the event of a default, in addition to any other rights or
remedies provided for herein or at law or in equity, Landlord, at its sole
option, shall have the following rights:
23.2.1 The right to declare the Lease Term ended and to
terminate all of the rights of Tenant in and to the Premises;
23.2.2 Pursuant to its rights of re-entry, Landlord may, but
shall not be obligated to (i) remove all persons from the Premises, (ii)
remove all property therefrom, and (iii) enforce any rights Landlord may have
against said property or store the same in any warehouse or elsewhere at the
cost and for the account of Tenant. Tenant agrees to hold Landlord free and
harmless of any liability whatsoever for the removal and/or storage of any
such property, whether of Tenant or any third party whomsoever, except for
damage caused by the willful misconduct or gross negligence of Landlord, its
agents or subcontractors.
23.2.3 Anything contained herein to the contrary
notwithstanding, Landlord shall not be deemed to have terminated this Lease or
the liability of Tenant to pay any Rent or other sum of money accruing
hereunder, by any such re-entry, or by any action in unlawful detainer or
otherwise to obtain possession of the Premises, unless Landlord shall
specifically notify Tenant in writing that it has so elected to terminate this
Lease.
23.2.4 In any action brought by Landlord to enforce any of
its rights under or arising from this Lease, Landlord shall be entitled to
receive its reasonable costs and legal expenses, including reasonable
attorneys' fees, whether such action is prosecuted to judgment or not.
23.4 The waiver by Landlord of any breach of this Lease by Tenant
shall not be a waiver of any preceding or subsequent breach of this Lease by
Tenant. The subsequent acceptance of Rent or any other payment hereunder by
Landlord shall not be construed to be a waiver of any preceding breach of this
Lease by Tenant. No payment by Tenant or receipt by Landlord of a lesser
amount than the Rent herein provided shall be deemed to be other than on
account of the earliest Rent due and payable hereunder.
SECTION 24
MISCELLANEOUS
24.1 Tenant, upon paying the rentals and other payments herein
required and upon performance of all of the terms, covenants and conditions of
this Lease on its part to be kept, may quietly have, hold and enjoy the
Premises during the Lease Term without any disturbance from Landlord or from
any other person claiming through Landlord, except as expressly provided
otherwise in this Lease.
24.2 In the event of any sale or exchange of the Premises by
Landlord, Landlord shall be, and is, hereby relieved of all liability under
and all of its covenants and obligations contained in or derived from this
Lease from and after the date of sale or exchange. Tenant agrees to attorn to
such purchaser or transferee, provided that such purchaser or transferee
agrees to be bound as Landlord under all of the terms and conditions of this
Lease. Any sale of the Premises by Landlord shall be subject to this Lease.
24.3 It is agreed that in the event Landlord fails or refuses to
perform any of the provisions, covenants or conditions of this Lease, Tenant,
prior to exercising any right or remedy Tenant may have against Landlord,
shall give written notice to Landlord of such default, specifying in said
notice the default with which Landlord is charged and Landlord shall not be
deemed in default if the same is cured within thirty (30) days of receipt of
said notice. Notwithstanding any other provision hereof, Tenant agrees that if
the default is of such a nature that the same can be rectified or cured by
Landlord, but cannot with reasonable diligence be rectified or cured within
that thirty (30) day period, then such default shall be deemed to be rectified
or cured if Landlord within that thirty (30) day period shall commence the
rectification and curing thereof and shall continue thereafter with all due
diligence to cause such rectification and curing to proceed.
24.4 Neither party shall be in breach of this Lease if it fails to
perform as required hereunder due to labor disputes, civil commotion, war,
warlike operation, sabotage, governmental regulations or control, fire or
other casualty, inability to obtain any materials, or other causes beyond such
party's reasonable control (financial inability excepted); provided, however,
that nothing contained herein shall excuse Tenant from the prompt payment of
any Rent or charge required of Tenant hereunder.
24.5 Any and all notices and demands required or desired to be given
hereunder shall be in writing and shall be validly given or made (and
effective) if served personally, delivered by a nationally recognized
overnight courier service, or faxed and deposited in the United States mail,
certified or registered, postage prepaid, return receipt requested, to the
following addresses:
If to Landlord: Bora Bora, LLC
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
If to Tenant: ▇▇▇▇ Las Vegas, LLC
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Either party may change its address for the purpose of receiving notices by
providing written notice to the other.
24.6 The various rights, options, elections and remedies of Landlord
contained in this Lease shall be cumulative and no one of them shall be
construed as exclusive of any other, or of any right, priority or remedy
allowed or provided for by law and not expressly waived in this Lease.
24.7 The terms, provisions, covenants and conditions contained in
this Lease shall apply to, bind and inure to the benefit of the parties hereto
and their respective heirs, executors, administrators, legal representatives,
successors and assigns, as permitted in Section 17 hereof. Without limiting
the generality of the foregoing, the terms of this Lease, including, without
limitation Section 16 hereof, shall inure to the benefit of and be enforceable
by the Administrative Agent, any successor representative of the Lenders, or
any person or entity to whom the Administrative Agent or such Lenders transfer
their interest in the Deed of Trust.
24.8 If any term, covenant or condition of this Lease, or any
application thereof, should be held by a court of competent jurisdiction to be
invalid, void or unenforceable, all terms, covenants and conditions of this
Lease, and all applications thereof, not held invalid, void or unenforceable,
shall continue in full force and effect and shall in no way be affected,
impaired or invalidated thereby.
24.9 Time is of the essence of this Lease and all of the terms,
covenants and conditions hereof.
24.10 This Lease contains the entire agreement between the parties
and cannot be changed or terminated orally.
24.11 Nothing contained herein shall be deemed to create any
partnership, joint venture, agency or other relationship between Landlord and
Tenant other than the relationship of landlord and tenant.
24.12 The captions are descriptive only and for convenience in
reference to this Lease and in no way whatsoever define, limit or describe the
scope or intent of this Lease nor in any way affect this Lease.
24.13 The laws of the State of Nevada shall govern the validity,
construction, performance and effect of this Lease. Each party hereto consents
to, and waives any objection to, ▇▇▇▇▇ County, Nevada as the proper and
exclusive venue for any disputes arising out of or relating to this Lease or
any alleged breach thereof.
24.14 In the event Tenant now or hereafter shall consist of more than
one person, firm, corporation or trust, then and in such event, all such
persons, firms, corporations or trusts shall be jointly and severally liable
as Tenant hereunder.
24.15 A Memorandum of Termination of Lease in the form attached
hereto as Exhibit "D" shall be executed by the parties, shall be held by
Landlord, and shall be recorded by Landlord upon termination of the Lease.
24.16 All necessary actions have been taken under the parties'
organizational documents to authorize the individuals signing this Lease on
behalf of the respective parties to do so.
24.17 The prevailing party in any action regarding this Lease shall
be entitled to receive its costs and legal expenses including reasonable
attorneys' fees, whether such action is prosecuted to judgment or not. The
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 Landlord and Tenant, Tenant's use or occupancy
of the Premises, and/or any claim of injury or damage.
24.18 Landlord and Tenant each represent and warrant to the other
that they have not entered into any written contractual arrangement with, or
promised to pay any broker's fee, finder's fee, commission or other similar
compensation to, or otherwise agreed to compensate, any real estate agent or
broker in connection with this transaction. Landlord and Tenant each agree to
indemnify, defend, save and hold the other harmless from and against all loss,
cost and expense incurred by reason of the breach of the foregoing
representation and warranty arising from any claim for compensation founded
upon or as a result of acts asserted to have been performed on their
respective behalf. Such indemnification obligation shall survive any
termination of the Lease.
24.19 This Lease may be executed in one or more counterparts, all of
which executed counterparts shall be deemed an original, but all of which,
together, shall constitute one and the same instrument. Signature pages may be
detached from the counterparts and attached to a single copy of this document
to physically form one document.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this Lease the
day and year first above-written.
"Landlord" "Tenant"
Bora Bora, LLC ▇▇▇▇ Las Vegas, LLC
a Nevada limited liability company a Nevada limited liability company
By: Bora, LLC By: Wynn Resorts Holdings, LLC
a Nevada limited liability company, a Nevada limited liability company,
its sole member its sole member
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC
By: Wynn Resorts, Limited, a Nevada limited liability company,
a Nevada corporation its sole member
its sole member
By: Wynn Resorts, Limited,
a Nevada corporation,
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ its sole member
----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
