EXHIBIT 99.4
COMMON PARKING AREA
USE AGREEMENT
by and between
ALADDIN GAMING, LLC,
a Nevada limited liability company
"Aladdin Gaming"
and
ALADDIN BAZAAR, LLC,
a Delaware limited liability company
"Bazaar Company"
TABLE OF CONTENTS
PAGE
RECITALS................................................................................ 1
ARTICLE 1 DEFINITIONS.................................................................. 2
ARTICLE 2. USE OF COMMON PARKING AREA................................................... 8
2.1 Use by Permittees............................................................ 8
2.2 Limitations on Use........................................................... 8
ARTICLE 3 USE FEE AND ALLOCABLE COSTS.................................................. 8
3.1 Base Fee..................................................................... 8
3.2 Allocable Costs.............................................................. 9
3.3 Resolution of Disputes....................................................... 10
3.4 Creation of Lien and Personal Obligation for Payment of Allocable Share...... 10
3.5 Offset Rights ............................................................... 10
3.6 Sublicense to Aladdin Music.................................................. 10
ARTICLE 4 TERM......................................................................... 11
ARTICLE 5 INSURANCE.................................................................... 11
ARTICLE 6 OPERATION; MAINTENANCE....................................................... 11
6.1 Operation and Maintenance ................................................... 11
6.2 Parking Regulations.......................................................... 12
6.3 Use of Entire Structure...................................................... 12
6.4 Compliance with Applicable Law............................................... 12
6.5 Self-Help Cure of Operation, and Maintenance Defaults........................ 13
ARTICLE 7 CONDEMNATION, DAMAGE OR DESTRUCTION.......................................... 13
7.1 Condemnation................................................................. 13
7.2 Damage or Destruction........................................................ 14
7.3 Payment of Excess Costs to Repair............................................ 14
ARTICLE 8 ASSIGNMENT................................................................... 14
ARTICLE 9 DEFAULT...................................................................... 15
9.1 Event of Default............................................................. 15
9.2 Rights and Remedies ......................................................... 15
9.3 Interest on Default; Late Charge............................................. 15
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Page
ARTICLE 10 MISCELLANEOUS PROVISIONS..................................................... 16
10.1 Arbitration................................................................ 16
10.2 Force Majeure; Discharge and Release....................................... 17
10.3 Attorneys' Fees............................................................ 17
10.4 Notices.................................................................... 17
10.5 Partial Invalidity......................................................... 19
10.6 Governing Law.............................................................. 19
10.7 Captions................................................................... 20
10.8 Amendments................................................................. 20
10.9 Relationship of Parties.................................................... 20
10.10 Time of Essence............................................................ 20
10.11 Counterparts .............................................................. 20
10.12 Binding Obligations........................................................ 20
10.13 Waiver..................................................................... 20
10.14 Entire Agreement........................................................... 21
10.15 Conflicts with REA ........................................................ 21
10.16 Memorandum of Agreement.................................................... 21
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COMMON PARKING AREA USE AGREEMENT
THIS COMMON PARKING AREA USE AGREEMENT ("Agreement") is entered into as
of the 26th day of February, 1998 (the "Effective Date"), by and between Aladdin
Gaming, LLC, a Nevada limited liability company ("Aladdin Gaming"), and Aladdin
Bazaar, LLC, a Delaware limited liability company ("Bazaar Company").
RECITALS
A. Aladdin Gaming owns certain real property located at 3667 Las
Vegas Boulevard South in Clark County, Nevada which are more particularly
described on Exhibit "A-l" to the REA (the "Site").
B. Aladdin Gaming and Bazaar Company have entered into that
certain Lease dated of even date herewith (the "Bazaar Lease"), pursuant to
which Bazaar Company leased from Aladdin Gaming that portion of the Site more
particularly described on Exhibit "A-3" to the REA (the "Bazaar Site"). Bazaar
Company shall construct certain improvements on the Bazaar Site (the "Bazaar
Improvements") consisting of an enclosed themed entertainment shopping center
containing approximately 462,000 square feet of gross leasable retail area (the
"Retail Facility"), and a multi-level parking structure adjacent to the Aladdin
Improvements for approximately 4,800 motor vehicles adjacent to the Aladdin
Improvements, and surface-level parking facilities for approximately 364 motor
vehicles beneath and adjacent to the Retail Facility, all as more particularly
described on the Site Plans (as defined in the REA) attached to the REA as
Exhibit "B" (the "Common Parking Area").
C. Aladdin Gaming shall construct or cause to be constructed
certain improvements on that portion of the Site that is more particularly
described on Exhibit "A-2" to the REA (the "Aladdin Site") consisting of a
renovated and expanded hotel-casino containing approximately 2,600 rooms and
an approximately 115,000 square foot casino (the "Aladdin Hotel & Casino"), a
Theater for Performing Arts (as that term is defined in the REA) and parking
facilities beneath the Aladdin Hotel and Casino for approximately 500 motor
vehicles (the "Aladdin Parking Area" and, together with the Aladdin Hotel &
Casino and Theater for Performing Arts, the "Aladdin Improvements").
D. Aladdin Gaming and Aladdin Music Holdings, LLC ("Aladdin
Music Holdings") have entered into that certain Lease dated of even date
herewith (the "Music Lease"), pursuant to which Aladdin Music Holdings leased
from Aladdin Gaming an approximately 4.7 acre portion of the Site (the "Music
Site") located at the corner of Audrie Street and Harmon Avenue to permit the
construction and operation by Aladdin Music, LLC ("Aladdin Music") of an
approximately 1,000 room, themed hotel with an approximately 50,000 square foot
casino (the "Music Hotel"). Aladdin Music Holdings shall assign all its right,
title and interest in the Music Lease to Aladdin Music.
E. Aladdin Gaming and its Permittees must have the non-exclusive
right to use the Common Parking Area and Bazaar Company agrees to grant to
Aladdin Gaming and its Permittees such non-exclusive right to use the Common
Parking Area, pursuant to the covenants, terms and conditions hereinafter set
forth.
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NOW, THEREFORE, incorporating the foregoing recitals and in
consideration of the mutual promises, representations and covenants set forth
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Accounting Period. "Accounting Period" means any period beginning on
January 1st and ending on the next following December 31st, except that the
first Accounting Period shall commence on the Effective Date and shall end on
the following December 31st.
Adjustment Date. "Adjustment Date" has the meaning ascribed to it in
Section 3.1(b) of this Agreement.
Affiliate. "Affiliate" means a Person that Controls, is directly or
indirectly Controlled by, or is under common ownership or Control with, another
Person. Notwithstanding the foregoing or any other provision of this Agreement
to the contrary, Bazaar Company shall not be considered to be an Affiliate of
Aladdin Gaming or any Affiliates thereof, and Aladdin Gaming shall not be
considered to be an Affiliate of Bazaar Company or any Affiliates thereof,
notwithstanding the fact that an Affiliate of Aladdin Gaming holds a fifty
percent (50%) membership interest in Bazaar Company.
Agreement. "Agreement" means this Common Parking Area Use Agreement, as
amended from time to time.
Aladdin Improvements. "Aladdin Improvements" has the meaning ascribed
to it in Recital C of this Agreement.
Aladdin Music. "Aladdin Music" means Aladdin Music, LLC, a Nevada
limited liability company, its successors and assigns.
Aladdin Music Holdings. "Aladdin Music Holdings" means Aladdin Music
Holdings, LLC, a Nevada limited liability company, its successors and assigns.
Aladdin Site. "Aladdin Site" shall have the meaning ascribed to it in
Recital C of this Agreement.
Allocable Share of Parking Operating Costs. "Allocable Share of Parking
Operating Costs" means that percentage of the Parking Operating Costs allocable
to each of Aladdin Gaming for the Aladdin Site and the Music Site and Bazaar
Company for the Bazaar Site on a monthly basis in and for each Accounting
Period, which share shall be determined by multiplying the amount set forth in
the Estimated Cost Statement by the percentage set forth below, which percentage
shall be subject to equitable adjustment as reasonably determined by the parties
hereto at such time as any Optional Improvements (as that term is defined in the
REA) shall be developed by Aladdin Gaming and its Permitted Transferees under
the REA, or a successor thereof. The initial Allocable Share of Parking
Operating Costs shall be equal to the percentages and paid by the parties set
forth below, payable to Aladdin Gaming or Bazaar Company, as the case may be,
as set forth herein:
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(a) Seventy-five percent (75%) for Aladdin Gaming; and
(b) Twenty-five percent (25%) for Bazaar Company.
Amended LLC Agreement. "Amended LLC Agreement" shall mean that certain
Limited Liability Company Agreement of Bazaar Company dated as of September 3,
1997, as amended by that certain First Amendment to the Limited Liability
Company Agreement dated as of October 16, 1997, as amended.
Arbitration. "Arbitration" means those procedures for resolving
Disputes among the parties set forth in Section 10.1 of this Agreement.
Arbitrator. "Arbitrator" shall have the meaning ascribed, to it in
Section 10.1(a) of this Agreement.
Base Fee. "Base Fee" shall have the meaning ascribed to it in Section
3.1 of this Agreement.
Base Month. "Base Month" has the meaning ascribed to it in Section
3.1(b) of this Agreement.
Bazaar Company. "Bazaar Company" means Aladdin Bazaar, LLC, a Delaware
limited-liability company, its successors and assigns.
Bazaar Improvements. "Bazaar Improvements" has the meaning ascribed to
it in Recital B of this Agreement.
Bazaar Lease. "Bazaar Lease" has the meaning ascribed to it in Recital
B of this Agreement, as amended from time to time.
Bazaar Site. "Bazaar She" has the meaning ascribed to it in Recital B
of this Agreement.
Budget. "Budget" has the meaning ascribed to it in Section 3.2(a) of
this Agreement.
CIP. "CIP" shall mean the "Controlled Insurance Program" as defined and
set forth in that certain Contract between Aladdin Gaming and Fluor Daniel, Inc.
for Design/Build Services dated as of December 4, 1997.
Common Parking Area. "Common Parking Area" has the meaning ascribed to
it in Recital B of this Agreement and shall mean that portion of the Bazaar
Improvements as designated on the Site Plans attached to the REA as Exhibit "B"
for the shared use of all parties and the Redeveloped Aladdin and all of their
Permittees in connection with the parking, passage and loading of motor
vehicles, together with related improvements which are at any time constructed
in connection therewith including driveways, pedestrian sidewalks, walkways and
stairways, escalators, elevators, light standards, directional signs, curbs and
landscaping within and adjacent to areas used for such shared parking, passage
and loading.
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Comparison Month. "Comparison Month" has the meaning ascribed to it in
Section 3.1(b) of this Agreement.
Control. "Control" shall mean the power, exercisable jointly or
severally, to manage and direct a Person through the direct or indirect
ownership of partnership interest, stock, trust powers, or other beneficial
interests and/or management or voting rights.
CPI. "CPI" means the Consumer Price Index for Urban Wage Earners and
Clerical Workers, or any successor index thereto, published by the United States
Department of Labor, Bureau of Labor Statistics, for the year in question. In
the event that the CPI is converted to a different standard reference base or
otherwise revised, the determinations to be made based on the CPI pursuant to
Section 3.1 of this Agreement shall be made with the use of such conversion
factor, formula or table for converting the CPI as may be published by the U.S.
Department of Labor or, if not so published, then with the use of such
conversion factor, formula or table as may be published by any nationally
recognized publisher of similar statistical information, or if a conversion
factor, formula or table is unavailable from any such source, the parties shall
select, in good faith, another method to adjust the CPI, or any successor
thereto, to the figure that would have been arrived at had the manner of
computing the CPI in effect on the date of this Agreement not been altered.
Demand. "Demand" shall have the meaning ascribed to it in Section
10.1(a) of this Agreement.
Demanding Party. Non-Demanding Party. "Demanding Party" and
"Non-Demanding Party" shall have the meanings ascribed to them in Section
10.1(a) of this Agreement.
Dispute. "Dispute" shall have the meaning ascribed to it in Section
10.1(a) of this Agreement.
Effective Date. "Effective Date" means the dale this Agreement is
executed by Aladdin Gaming and Bazaar Company as set forth in the introductory
paragraph of this Agreement.
Employee Parking Areas. "Employee Parking Areas" shall have the meaning
ascribed to it in Section 6.2(b) of this Agreement.
Estimated Cost Statement. "Estimated Cost Statement" shall have the
meaning ascribed to it in Section 3.2(a) of this Agreement.
Event of Default. Default "Event of Default" or "Default" shall have
the meanings ascribed to them in Article 9 of this Agreement.
Aladdin Gaming. "Aladdin Gaming" means Aladdin Gaming, LLC, a Nevada
limited liability company, its successors and assigns.
Hazardous Substances. "Hazardous Substances" means and includes the
following, including mixtures thereof, any hazardous substance, pollutant,
contaminant, waste, byproduct or constituent regulated under NRS Chapter 459,
NRS Sections 618.750-618.850, NRS Section 477.045, as amended, or any other
federal, state or local laws and regulations as amended or hereafter enacted
regulating
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hazardous or toxic substances or wastes, petroleum pollutant or waste or similar
substances, including, but not limited to, as defined in the Comprehensive
Environmental Response, Liability and Compensation Act, 42 U.S.C. Section 9601
et seq., as amended, the Federal Water Pollution Control Act, 33 U.S.C. Sections
1251, et seq. Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801,
et seq., Resource Conservation and Recovery Act, 42 U.S.C. Sections 6901, et
seq., Safe Drinking Water Act, 42 U.S.C. Sections 3000(f), et seq., Clean Air
Act, 42 U.S.C. Sections 7401, et seq., United States Department of
Transportation Hazardous Materials Table, 49 C.F.R. 172.101, Chapters 444, 445A,
445B, 590 or 618 of NRS, pesticides regulated under the Federal Insecticides,
Fungicide and Rodenticide Act, 7 U.S.C. Section 136 et seq., asbestos and
asbestos-containing materials, PCBs and other substances regulated under the
Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq., source material,
special nuclear material, by-product material and any other radioactive
materials or radioactive wastes, however produced, regulated under the Atomic
Energy Act or the Nuclear Waste Police Act; chemicals subject to the OSHA Hazard
Communication Standard, 29 C.F.R. 1910.1200 et seq.; and industrial process and
pollution control wastes whether or not hazardous within the meaning of the
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., all as
may be amended.
Involuntary Transfer; Involuntary Transferor; Involuntary Transferee.
"Involuntary Transfer" shall mean the conveyance or reversion of fee or
leasehold title to a Tract (or portion thereof) from a Mortgagor ("Involuntary
Transferor") to a Mortgagee ("Involuntary Transferee") resulting from the
judicial or nonjudicial foreclosure of the Mortgage, the grant of a deed in lieu
of such foreclosure, or the expiration, termination or surrender of a leaseback
in a sale and leaseback transaction; provided, however, in the event of such an
Involuntary Transfer, the Involuntary Transferor shall be conclusively deemed to
have assigned all of its rights, powers, title and interest in its Tract (or the
relevant portion thereof) and this Agreement to the Involuntary Transferee, who
shall be conclusively deemed to have assumed all of the Involuntary Transferor's
covenants and obligations thereunder accruing from and after such Involuntary
Transfer.
Mortgage; Mortgagor; Mortgagee. "Mortgage" shall mean an indenture of
mortgage, deed of trust, or a sale and leaseback of all or a portion of the
interest of a party ("Mortgagor") in its Tract. "Mortgagee" shall mean either
the trustee and beneficiary/mortgagee, individually or collectively as
appropriate, under a Mortgage or Aladdin Gaming or lessor following a sale and
leaseback, provided that such Persons are not in possession of the Tract of the
applicable party. Mortgagee shall not be deemed to be in possession until
Mortgagee takes title to any Tract.
Music Hotel. "Music Hotel" has the meaning ascribed to it in Recital D
of this Agreement.
Music Lease. "Music Lease" has the meaning ascribed to it in Recital D
of this Agreement.
Music Site. "Music Site" has the meaning ascribed to it in Recital D of
this Agreement.
NRS. "NRS" means the Nevada Revised Statutes as in effect from time to
time.
Offset Rights. "Offset Rights" shall have the meaning ascribed to it in
Section 3.5.
Opening Date. "Opening Date" shall have the meaning ascribed to the
term "First Scheduled Opening Date" in the Site Work Agreement.
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Parking Operating Costs. "Parking Operating Costs" shall mean all costs
and expenses of every kind and nature incurred by Bazaar Company in connection
with its operation, management, maintenance, repair, replacement or restoration
of the Common Parking Area, which costs and expenses are not allocated among the
parties as Common Costs (as that term is defined in the REA) and are not
associated with the Retail Facility, including, without limitation, the
following:
(a) all payments made to an operator of any portion of
the Common Parking Area, including administrative fees paid to and actual costs
incurred by Bazaar Company as operator (and Bazaar Company shall be entitled to
a ten percent (10%) override to cover Bazaar Company's general and
administrative costs);
(b) any use taxes or other fees or charges relating to
parking operations imposed by Clark County or any other governmental authority
claiming jurisdiction over the Site;
(c) the cost of licenses, certificates, permits and
inspections, and the cost of contesting the validity or applicability of any
governmental enactments which may affect Parking Operating Costs;
(d) all real estate taxes and general and special
assessments allocable to the Common Parking Area, in accordance with Section 6.6
of the REA;
(e) the cost of insurance premiums with respect to
insurance policies required to be carried by Bazaar Company by its Mortgagee,
the REA, or this Agreement, including business interruption insurance, in an
amount equal to the difference between the aggregate insurance premiums paid by
Bazaar Company for the Bazaar Site and the aggregate insurance premiums which
would have been payable by Bazaar Company if it had only carried required
insurance with respect to the Retail Facility, and
(f) the cost of supplying all utilities, and operating,
maintaining, repairing, renovating and managing all systems and equipment;
(g) wages, salaries and other compensation and benefits
of all persons engaged exclusively (appropriate pro rata portion thereof) in the
operation, management, maintenance or security of the Common Parking Area, and
employer's social security taxes, unemployment taxes or insurance, and any other
taxes which may be levied on such wages, salaries, compensation and benefits;
(h) payments under the Bazaar Lease (excluding rent) or
under any easement, license, operating agreement, declaration, restrictive
covenant or instrument pertaining to the sharing of costs by the Common Parking
Area;
(i) the cost of janitorial service, alarm and security
service, trash removal, maintenance of public areas, maintenance and replacement
of curbs, walkways and roofs;
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(j) the cost of landscaping, relamping, supplies, tools,
equipment and materials, and all fees, charges and other costs incurred in
connection with the management, operation, repair and maintenance of the Common
Parking Area pursuant to Section 6.1 of this Agreement; and
(k) the cost of any capital improvements or other costs
(i) which are intended as a labor-saving device or to effect other economies in
the operation or maintenance of the Common Parking Area, (ii) made to the Common
Parking Area after the Opening Date that are required under any governmental law
or regulation enacted after the Effective Date unless such capital improvement
or other cost should have been incurred in connection with the initial
construction of the Common Parking Area in order to comply with then existing
governmental laws and regulations; or (iii) which are reasonably determined by
Bazaar Company to be in the best interests of the Common Parking Area.
If and to the extent any services or transactions referred to in subsections (a)
through (k) of this definition are performed by Affiliates of Bazaar Company,
they shall be at competitive market rates. Except as otherwise specifically
provided above, "Parking Operating Costs" shall not include costs of interest on
debt or amortization on any Mortgages and rent payable under the Bazaar Lease.
Any and all revenues generated by the Common Parking Area shall be offset
against the Parking Operating Costs for the corresponding Accounting Period in
order that Parking Operating Costs shall represent the net cost of operating the
Common Parking Area after application of such revenues.
Parking Regulations. "Parking Regulations" shall have the meaning
ascribed to it in Section 6.2(a) of this Agreement.
Permitted Transferee. "Permitted Transferee" means a Person to whom
Aladdin Gaming or Bazaar Company sells, leases, transfers or assigns its
interest in all of its Tract, together with all or the relevant portion of its
rights and obligations under this Agreement, the REA, the Bazaar Lease and any
and all other agreements affecting or concerning the Site or any portion
thereof, as applicable. Such Person to whom a transfer is made and who becomes a
Permitted Transferee hereunder must expressly assume the transferring party's
rights and obligations under this and all relevant agreements by a writing duly
acknowledged and in recordable form if necessary.
Permittees. "Permittees" shall mean the parties hereto, Aladdin Music,
and all other Persons from time to time entitled to use, occupy or visit the
Redeveloped Aladdin pursuant to any lease, sublease, deed or other instrument,
agreement or arrangement, and their respective officers, directors, employees,
representatives, agents, partners, members, managers, architects, engineers,
contractors, customers, visitors, invitees, tenants, subtenants, licensees,
suppliers, vendors and concessionaires.
Person. "Person" shall mean an individual, fiduciary, trust,
partnership, limited liability company, firm, association and corporation, or
any other form of business or governmental entity.
REA. "REA" means that certain Construction, Operation and Reciprocal
Easement Agreement dated concurrently herewith, by and among Aladdin Gaming,
Bazaar Company and Aladdin Music.
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Redeveloped Aladdin. "Redeveloped Aladdin" means the Bazaar
Improvements, the Aladdin Improvements, the Music Hotel and the Energy Plant.
Retail Facility. "Retail Facility" has the meaning ascribed to it in
Recital B of this Agreement.
Site. "Site" has the meaning ascribed to it in Recital A of this
Agreement.
Site Work Agreement. "Site Work Agreement" means that certain Site Work
Development and Construction Agreement dated concurrently herewith, entered into
by Aladdin Gaming, Aladdin Holdings, LLC, a Delaware limited liability company,
and Bazaar Company.
Subordinated Debt. "Subordinated Debt" shall have the meaning ascribed
to it in Section 3.5 of this Agreement.
Tract. "Tract" shall initially mean all buildings, land and/or air
space comprising the Bazaar Site or the Aladdin Site, as applicable, together
with all other improvements of Aladdin Gaming, or Bazaar Company, as the case
may be, now or hereafter located thereon. If at any time hereafter less than all
of the Bazaar Site or the Aladdin Site is Transferred in accordance with the
requirements of the REA, then that portion of the Tract so Transferred shall
hereinafter be deemed a separate Tract and the Person acquiring or leasing such
new Tract shall be deemed a Permittee hereunder; provided, however, that no
lease or license of space within the Redeveloped Aladdin by either Aladdin
Gaming or Bazaar Company shall be deemed to create a new Tract.
Use Fee. "Use Fee" means, collectively, the Base Fee and Aladdin
Gaming's Allocable Share of Parking Operating Costs which shall be payable to
Bazaar Company at the address for Bazaar Company set forth in Section 10.4
below.
ARTICLE 2
USE OF COMMON PARKING AREA
2.1 Use by Permittees. From and after the Opening Date, all
Permittees of the Redeveloped Aladdin shall have the right to use the Common
Parking Area, subject only to the terms and conditions contained herein.
2.2 Limitations on Use. Notwithstanding any other provision
contained in this Agreement, no Permittee may use the Common Parking Area for
any unlawful purpose and, unless Aladdin Gaming and Bazaar Company otherwise
mutually agree, the Common Parking Area shall be used only for the parking,
passage, loading and unloading of motor vehicles and pedestrian traffic. The use
of the Common Parking Area shall be subject to the Parking Regulations and, more
generally, the provisions of Article 6 hereof. In addition, neither Aladdin
Gaming nor any Permittees shall perform any act or carry on any practice that
may damage the Common Parking Area, normal wear and tear excepted, or cause any
offensive odors or loud noise (aside from odors and noises customarily found in
a parking garage) or constitute a nuisance or a menace. Neither Aladdin Gaming
nor Bazaar Company shall, without the prior express written consent of the other
party keep; use or store, or allow to be kept, used or stored, upon or about the
Common Parking Area any Hazardous Substances that may endanger any portion
thereof or Permittee thereon; provided, however, a party may use
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Hazardous Substances (in quantities necessary for the activities conducted) in
the business of operating the Common Parking Area to the extent such use is in
strict compliance with applicable laws and prudent Hazardous Substance handling
procedures and such Hazardous Substances, to the extent not fully used, are
properly and lawfully disposed of, without violating applicable laws,
endangering human health and safety or impairing any portion of the Site. Each
party indemnifies the other with respect to any claims arising out of the breach
of the foregoing sentence and from any damages resulting from a party's use of
Hazardous Substances which impairs such other party's use of the Common Parking
Area of their Tract.
ARTICLE 3
USE FEE AND ALLOCABLE COSTS
3.1 Base Fee.
(a) Commencing on the Opening Date and for the balance of
the affected Accounting Period, Aladdin Gaming shall pay to Bazaar Company, in
such legal tender of the United States of America as at the time of payment
shall be acceptable for the payment of public and private debts, a fee in the
amount of Three Million Two Hundred Thousand Dollars ($3,200,000) per annum (the
"Base Fee"), payable in twelve (12) equal monthly installments during each year,
in advance, on the first day of the calendar month for which such monthly
payment is being made. Should the Opening Date occur on a day other than the
first day of the calendar month, then the Base Fee for such first fractional
month shall be paid on the Opening Date and shall be computed on a daily basis
for the period from the Opening Date to the end of such calendar month and at an
amount equal to l/360th of the Base Fee for each such day, and, thereafter,
shall be computed and paid as aforesaid.
(b) Commencing on the first day of the calendar month
following the end of the fifth Accounting Period (the "Adjustment Date") and on
the first day of the calendar month following the end of each successive fifth
Accounting Period thereafter, the Base Fee shall be adjusted in accordance with
percentage increases, if any, in the CPI over the preceding five (5) years,
which increase shall be capped at five percent (5%) per annum. The initial Base
Fee shall be increased by a percentage equal to the percentage increase, if any,
in the CPI published for the calendar month which is three (3) months prior to
the month in which the Adjustment Date occurs (the "Comparison Month") as
compared to the CPI published for the same calendar month immediately preceding
the Opening Date (the "Base Month"). Notwithstanding anything to the contrary
herein, if the CPI for any applicable Comparison Month shall be less than the
CPI for the Base Month, the Base Fee shall remain at the same amount payable
immediately prior to the applicable Adjustment Date. Commencing on the first day
of the calendar month following the end of the sixty-ninth Accounting Period of
the term of this Agreement, and on the first day of the calendar month following
the end of each successive tenth Accounting Period thereafter through the end of
the term, the Base Fee shall be adjusted to market rate.
3.2 Allocable Costs.
(a) Bazaar Company shall submit to Aladdin Gaming,
promptly following the Effective Date, and in each Accounting Period thereafter,
at least ninety (90) days prior to the first day of the calendar month following
the first anniversary of the Effective Date, and in each successive
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Accounting Period thereafter, a reasonable estimate of the total Parking
Operating Costs to be incurred by Bazaar Company during the next Accounting
Period (the "Budget"), and each party's Allocable Share of Parking Operating
Costs with respect thereto (the "Estimated Cost Statement"). Aladdin Gaming may
object to the Budget and/or the Estimated Cost Statement within thirty (30) days
of its receipt thereof, in which event the parties shall negotiate in good faith
in an attempt to reach an agreement. If an agreement concerning the Budget
and/or Estimated Cost Statement is not reached within twenty (20) days of an
objection, then the objection shall be subject to the procedures for Arbitration
set forth in Article 10.1 hereof, provided, however, that during such
arbitration, Aladdin Gaming shall pay to Bazaar Company Aladdin Gaming's
Allocable Share of Parking Operating Costs, as hereinafter provided, based upon
the lesser of (x) the actual cost of the subject Parking Operating Costs for the
previous Accounting Period, plus ten percent (10%), or (y) the Estimated Cost
Statement. The failure of Bazaar Company to timely submit a Budget or the
Estimated Cost Statement shall not preclude Bazaar Company from enforcing its
right to collect Aladdin Gaming's Allocable Share of Parking Operating Costs.
(b) Aladdin Gaming shall pay its Allocable Share of
Parking Operating Costs in twelve (12) equal monthly installments, in advance,
on the first day of each calendar month commencing on the Effective Date (and on
and after the Opening Date, together with its next installment of the Base Fee
due), pursuant to the Estimated Cost Statement. At any time, Bazaar Company,
with the reasonable approval of Aladdin Gaming, may elect to adjust monthly
estimated payments contained in the Estimated Cost Statement to more closely
reflect actual Parking Operating Costs being incurred in order to reduce the
magnitude of any year-end reconciliation. Should the Effective Date occur on a
day other than the first day of the calendar month, then for such first
fractional month the Allocable Share of Parking Operating Costs shall be paid on
the Effective Date and shall be computed on a daily basis for the period from
the Effective Date to the end of such calendar month and at an amount equal to
l/360th of the Allocable Share of Parking Operating Costs for each such day,
and, thereafter, shall be computed and paid as aforesaid.
(c) Within ninety (90) days following the end of each
Accounting Period, Bazaar Company shall provide Aladdin Gaming with a full,
complete and itemized separate statement, with reasonable supporting
documentation as may be requested, showing the actual Parking Operating Costs
incurred during such Accounting Period. Aladdin Gaming shall also have the
right, upon reasonable notice and at its sole cost and expense, to audit Bazaar
Company's records with respect to the immediately preceding Accounting Period
and its allocation of Parking Operating Costs. If any party has paid more than
its Allocable Share of Parking Operating Costs during any such Accounting
Period, such party shall receive a credit towards its next payment of its
Allocable Share of Parking Operating Costs. If any party has paid less than its
Allocable Share of Parking Operating Costs for such Accounting Period, such
party shall pay the deficiency within thirty (30) days after receipt of such
year-end statement.
3.3 Resolution of Disputes. If Aladdin Gaming disagrees with
Bazaar Company's year-end reconciliation of the Allocable Share of Parking
Operating Costs, Aladdin Gaming shall be entitled to object by written notice to
Bazaar Company within thirty (30) days of receipt of such year-end statement. If
the parties cannot reach an agreement within thirty (30) days following such
notice, the Dispute shall be resolved by Arbitration pursuant to the provisions
of Section 10.1 hereof.
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3.4 Creation of Lien and Personal Obligation for Payment of
Allocable Share. Aladdin Gaming and Bazaar Company covenant for the benefit of
the other, regardless of whether such covenant is expressed in any deed to a
Tract, that the delinquent amount of its Allocable Share of Parking Operating
Costs and the delinquent amount of any other payments owing by a party
hereunder, together with any late charges, attorneys' fees or interest due on
any delinquent amount, shall be a charge and a continuing lien upon its Tract,
effective upon recordation of a notice of delinquency as provided herein. The
total amount so due shall be the personal obligation of the party owing such
amount and shall remain the personal obligation of such previous party, and
shall pass to Transferees of such previous party as a lien and charge against
its Tract. Notwithstanding the foregoing, no Mortgagee shall be liable for the
payment of liens for an Allocable Share of Parking Operating Costs or any other
payments to be made by a party hereunder except those accruing after the
Mortgagee obtains title to the Tract encumbered by its Mortgage pursuant to an
Involuntary Transfer but shall take subject to any lien encumbering the property
at the time such Mortgage is recorded. Any Involuntary Transferee shall take
title to the Tract subject to the Mortgage free and clear of any claims and
liens for unpaid Allocable Shares of Parking Operating Costs or other unpaid
charges. Any such Involuntary Transferee who so acquires title to the Tract
shall be liable for payment of Allocable Shares of Parking Operating Costs
accruing after the date of such Involuntary Transfer. Following any such
Involuntary Transfer, the party owing the delinquent amount shall remain
personally liable for the payment thereof.
3.5 Offset Rights. The parties hereto are relying on full
performance under both this Agreement and the Bazaar Lease. The failure of
Aladdin Gaming to pay the Use Fee shall be offset against any amount due from
Bazaar Company under the Bazaar Lease and against the payments due under that
subordinated debenture (the "Subordinated Debt") issued by Bazaar Company to
Aladdin Gaming, LLC upon the terms and conditions set forth in the Amended LLC
Agreement (the "Offset Rights").
3.6 Sublicense to Aladdin Music. Aladdin Gaming shall have the
right to enter into a parking sublicense agreement with Aladdin Music for the
purpose of passing through to such entity one-third of the parking fees and
costs incurred by Aladdin Gaming hereunder (which parking fees and costs
Aladdin Music hereby agrees to assume) relating to Aladdin Gaming's use and its
Permittees' use of the Common Parking Area, including the right to use any
portion of the non-exclusive Common Parking Area; however, Aladdin Gaming's
payments to Bazaar Company hereunder are not contingent upon Aladdin Gaming's
receipt of any sums under any such agreement. Bazaar Company and Aladdin Gaming
hereby agree that if and when Aladdin Music is not indirectly wholly-owned by
Aladdin Gaming then this Agreement shall be amended and restated as a tri-party
agreement with Aladdin Music as the third party with its own obligations and
benefits on the same terms as otherwise exist in this Agreement, except that it
bears sole responsibility for its 25% Allocable Share of Parking Operating Costs
with a corresponding reduction in Aladdin Gaming's Allocable Share of Parking
Operating Costs to 50%. Each party shall cause its Mortgagee to subordinate to
such restated and amended tri-party agreement.
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ARTICLE 4
TERM
This Agreement shall commence on the Effective Date and shall
thereafter run until December 31, 2097. If Bazaar Company holds over at-the
Bazaar Site with Aladdin Gaming's consent following the expiration or any
earlier termination of the Bazaar Lease, this Agreement shall remain in full
force and effect until such time as Bazaar Company shall cease to remain in
possession and control of the Bazaar Site.
ARTICLE 5
INSURANCE
After the Effective Date or after the Opening Date, as applicable, and
throughout the term of this Agreement each party shall maintain through CIP, or
otherwise shall cause to be maintained, in full force and effect with a
financially responsible insurance company or companies, such insurance coverage
as is required in Article 8 of the REA, and to the extent not covered thereby,
garage liability and garage keepers liability policies of not less than Two
Million Dollars ($2,000,000) each subject to deductibles of no greater than Five
Thousand Dollars ($5,000) for each vehicle and Twenty Five Thousand Dollars
($25,000) for each loss covering bodily and personal injury and property damage
for operation of the garage, and comprehensive and collision coverage for
physical damage to vehicles in Bazaar Company's or its Permittees' care, custody
and control. Bazaar Company shall submit any proposed substitution or
modification of such insurance coverage to Aladdin Gaming for Aladdin Gaming's
approval at least forty-five (45) days in advance, which consent shall not be
unreasonably withheld or delayed.
ARTICLE 6
OPERATION: MAINTENANCE
6.1 Operation and Maintenance. Bazaar Company shall be solely
responsible for the operation and maintenance of the Common Parking Area.
Subject to Article 7 and Section 10.2 of this Agreement, Bazaar Company shall
operate and maintain or cause to be operated and maintained the Common Parking
Area in good order, condition and repair, and in first-class condition. Without
limiting the generality of the foregoing, with respect to the Common Parking
Area, Bazaar Company shall observe and comply with those operation, repair,
maintenance, alteration and restoration obligations and standards set forth in
Articles 6 and 9 of the REA.
6.2 Parking Regulations.
(a) The use and operation of the Common Parking Area
shall be subject to such reasonable rules, regulations and restrictions as are
imposed and promulgated by Bazaar Company from time to time (the "Parking
Regulations"). Copies of the proposed Parking Regulations and, after their
implementation, any proposed amendments to the Parking Regulations, shall be
provided to Aladdin Gaming at least thirty (30) days prior to their adoption by
Bazaar Company. Within ten (10) days of its receipt of the proposed Parking
Regulations (or amendments thereof), Aladdin Gaming
12
shall notify Bazaar Company in writing of any reasonable objections. If Aladdin
Gaming so objects, the parties shall meet and confer in good faith with one
another and their authorized representatives and consultants in an attempt to
resolve their differences during the ten (10) day period following such
notification. If the parties are unable to resolve their differences during such
time period, any party making the demand shall submit to Arbitration pursuant to
the provisions of Section 10.1 hereof. Notwithstanding the generality of the
foregoing, unless Aladdin Gaming and Bazaar Company, in their sole and absolute
discretion, mutually agree, no fee of any type shall be charged to or collected
from any Permittees, including commercial Permittees, for parking or the right
to park vehicles in, or for the use of, or for the passage through, the Common
Parking Area, except for any charges that may be associated with any valet
parking service operated in the Common Parking Area, which valet parking service
fees, if any, shall be reasonably approved by both parties.
(b) Bazaar Company and Aladdin Gaming shall designate
certain areas within the Common Parking Area or on other land outside the Site
within a reasonable distance from the Site for use as automobile parking space
for certain Permittees of the Site including, without limitation, officers,
directors, managers, and employees of Bazaar Company, Aladdin Gaming, Aladdin
Music and their respective tenants and subtenants (the "Employee Parking
Areas").
(c) So long as such Permittees do not violate the Parking
Regulations, Permittees of the Redeveloped Aladdin shall not be prohibited or
prevented from parking in any portion of the Common Parking Area other than (i)
the Employee Parking Areas, which are for the exclusive use of certain
designated Permittees, and (ii) spaces reserved for valet parking services.
6.3 Use of Entire Structure. Subject to Section 6.4, if at any
time Bazaar Company should determine that it is not necessary to operate or keep
open for use by the public any portion of the Common Parking Area, with the
approval of Aladdin Gaming, it may close that portion of the Common Parking Area
for the time period it deems reasonable.
6.4 Compliance with Applicable Law. Although Bazaar Company shall
not be liable specifically to Aladdin Gaming with respect to whether sufficient
parking and/or loading docks and areas are available within the Common Parking
Area to serve each party's businesses and Buildings, Bazaar Company shall be
responsible for operating and maintaining the Common Parking Area, in strict
compliance with all applicable laws, ordinances, orders, rules, regulations,
requirements and permits of all federal, state and municipal governments and the
appropriate departments, commissions, boards and officers thereof, and for
operating and maintaining the Common Parking Area in strict compliance with all
covenants, conditions and restrictions affecting the Site, including the
covenants and requirements of any Mortgage encumbering the Common Parking Area
or insurer of the Common Parking Area.
6.5 Self-Help Cure of Operation and Maintenance Defaults. If any
party fails to perform any of its duties or obligations under this Article 6
with respect to the operation and maintenance of Common Parking Area, any other
party may at any time give written notice to the party thus failing, setting
forth the specific nonperformance. If such nonperformance is not corrected
within thirty (30) days after receipt of such notice, or if such nonperformance
is such that it cannot be corrected within such time, then if such party fails
to commence the performance of such duties within such period and diligently
prosecute the same to completion thereafter, then, in either such event, the
party giving
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such notice shall have the right, upon prior written notice, to perform same,
including the right and temporary license to enter upon the other party's Tract
to perform same, and such party which has failed to perform shall pay the
performing party's reasonable costs thereof, provided, however, that these
provisions shall be without prejudice to such non-performing party to contest
the right of the other party to make such repairs or expend such monies. All
work performed by such party shall be performed in compliance with this Article
and shall be performed by such party to the extent necessary to properly operate
such party's Tract. Notwithstanding anything hereinabove contained to the
contrary, in the event of any emergency situation which threatens immediate
injury to persons or immediate danger to property, or material interference with
access to a party's Tract, or in the event of any closure of the Common Parking
Area in violation of this Agreement or the REA, such party may without the
notice required above, but with such notice as is reasonable under the
circumstances, cure any such default.
ARTICLE 7
CONDEMNATION,
DAMAGE OR DESTRUCTION
7.1 Condemnation.
(a) The rights and obligations of the parties hereunder
in the event of a permanent taking of fee title to all or substantially all of
the Common Parking Area for any public or quasi-public use under any statute, or
by right of eminent domain, whether by a condemnation proceeding or otherwise,
or any permanent transfer of all or substantially all of the Common Parking Area
in avoidance of an exercise of the power of eminent domain, shall be governed by
and as set forth in the REA. No party other than Bazaar Company shall have any
interest in any condemnation award under this Agreement; provided, however, that
nothing herein shall limit any rights that the Aladdin Gaming may have in any
condemnation award under any other agreement or lease.
(b) The rights and obligations of the parties hereunder
in the event of any taking or any transfer in avoidance of eminent domain of
less than substantially all of the Common Parking Area, or if such taking or
transfer is less than of a permanent nature, shall be governed by and as set
forth in the REA; provided, however, that assuming that the remaining portion of
the Common Parking Area (after reconstruction, if necessary) is reasonably
suitable for continued use as a parking facility and lawfully remains open for
operation, this Agreement shall remain in force and effect as to that remaining
portion, the Base Fee shall continue to be payable by Aladdin Gaming but shall
be reduced in proportion to the number of usable parking spaces before and after
the taking or transfer, and the Allocable Share of Parking Operating Costs
allocable to Aladdin Gaming shall not reflect any amounts expended by Bazaar
Company to rebuild or repair the remaining portions of the Common Parking Area.
7.2 Damage or Destruction.
(a) The rights and obligations of the parties in the
event of any casualty to the Common Parking Area resulting in damage to or
destruction of the Common Parking Area, shall be governed by and as set forth in
the REA; provided, however, that, assuming that any portion of the Common
Parking Area lawfully remains open for operation, this Agreement shall remain in
full force
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and effect, and the Base Fee shall continue to be payable by Aladdin Gaming but
shall be proportionately reduced to reflect the amount of insurance proceeds
received by Bazaar Company, and the Allocable Share of Parking Operating Costs
allocable to Aladdin Gaming shall not reflect any amounts expended by Bazaar
Company to rebuild or repair those portions of the Common Parking Area that were
damaged or destroyed.
(b) Any excess insurance proceeds after a taking or
transfer shall be paid to Aladdin Gaming and Bazaar Company in the same ratio as
the required number of parking spaces in accordance with the County's laws,
codes and regulations bears to the total number of parking spaces in the Common
Parking Area.
7.3 Payment of Excess Costs to Repair. Any costs to repair or
rebuild the Common Parking Area which are in excess of the condemnation award or
insurance proceeds (as applicable) received by Bazaar Company shall be paid by
Aladdin Gaming and Bazaar Company in the same ratio as the required number of
parking spaces in accordance with the County's laws, codes and regulations bears
to the total number of parking spaces in the Common Parking Area.
ARTICLE 8
ASSIGNMENT
Except as set forth in Section 3.6 hereof, the parties shall have no
right at any time during the term of this Agreement to assign, sell or otherwise
transfer any of their respective rights hereunder, unless such assignment is
made in conjunction with the sale of the relevant party's entire Tract (and, in
the case of Aladdin Gaming, the concurrent sale of its interest in the Bazaar
Lease or Subordinated Debt, as applicable), in which case (a) such assignment
shall expressly be made subject to the provisions of this Agreement and the
transferee shall sign all documents necessary to acknowledge its assumption of
the obligations hereunder, and (b) no party shall be released from liabilities,
whether known or unknown, that accrued before such assignment, however, the
transferring party shall be released from all liabilities accruing after such
assignment, except that this Agreement may be collaterally assigned by either
party in connection with the financing of its improvements and, in the case of
Aladdin Gaming, in the event of the sale of the Subordinated Debt.
ARTICLE 9
DEFAULT
9.1 Event of Default. An "Event of Default" or "Default" shall be
deemed to have occurred upon the happening of one or more of the following
events:
(a) if any party shall fail to make payment of the Use
Fee or any portion thereof or any other sum owing hereunder when and as the same
shall have become due and payable, and such Default shall have continued for a
period of thirty (30) days after delivery of a notice of delinquency thereof
from the non-defaulting party to the defaulting party (except that if a Dispute
regarding the payment of such Use Fee or other sum has been submitted to
Arbitration, the defaulting party shall have thirty (30) days after the decision
of the Arbitrator to make any required payment);
15
(b) if any party shall breach or violate any covenants,
terms or obligations set forth in this Agreement and such Default shall have
continued for a period of ninety (90) days after notice thereof from the
non-defaulting party, to the defaulting party, (or if the default is not capable
of being cured within such period, the defaulting party fails within such period
to commence to care such default and to continuously and diligently prosecute
and pursue such cure thereafter to completion); or
(c) subject to Section 10.2 hereof, if, during the term
of this Agreement, Bazaar Company shall abandon or close down the Common Parking
Area, without the consent of Aladdin Gaming, for a period of three (3)
consecutive days.
9.2 Rights and Remedies. If any Event of Default occurs, the
non-defaulting party shall have the following remedies, in addition to any
rights (including the Offset Rights) that it may possess at law or in equity:
(a) The right to bring suit against the defaulting party
for the amount of damage sustained by the non-defaulting party by reason of such
Event of Default, except that no party shall be liable for consequential or
punitive damages; and
(b) The right to seek such injunctive or other equitable
relief as may be necessary to enforce the terms and conditions hereof, it being
understood and agreed that damages may not be an adequate remedy for the breach
hereof.
Except as may be limited by the REA, the rights and remedies of any party
hereunder shall be cumulative and not exclusive of any other rights or remedies
of such party at law or in equity.
9.3 Interest on Default; Late Charge. Any installment of a Use Fee
or any other sum due from either party to the other hereunder which is not
timely made shall bear interest from the date that is ten (10) days subsequent
to the defaulting party's receipt of a notice of delinquency from the non-
defaulting party until such payment is received at the rate of fifteen percent
(15%) per annum. Any delinquent payment made by a party and bearing interest
pursuant to the preceding sentence shall include a late charge in the amount of
five percent (5%) of the delinquent amount due. The late charge shall be deemed
to constitute a part of such party's Allocable Share of Parking Operating Costs
and the right to require its shall be in addition to all of such non-delinquent
party's other rights and remedies hereunder, at law or in equity, and shall not
be construed as liquidated damages or as limiting such party's remedies in any
manner.
ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1 Arbitration.
(a) The parties hereunder agree that if they are unable
in good faith to resolve any dispute or disagreement arising under or pursuant
to this Agreement, including any dispute or disagreement about the
interpretation or application of any provision thereof and any dispute arising
pursuant to Sections 3.2(a), 3.3, or 6.2(a) hereof (collectively, a "Dispute"),
but not including any
16
Event of Default or claim of Default thereunder (which shall be resolved before
a court of law), the party seeking arbitration of the Dispute (a "Demanding
Party") shall deliver written notice of demand to resolve Dispute (the "Demand")
to the other party (the "Non-Demanding Party"), which Demand shall include a
brief statement of the Demanding Party's claim or controversy, the amount
thereof and the name of the proposed arbitrator to decide the Dispute (the
"Arbitrator").
(b) Within ten (10) days after receipt of the Demand, the
Non-Demanding Party against whom a Demand is made shall deliver a written
response to the Demanding Party. Such response shall include a short and plain
statement of the Non-Demanding Party's defense to the claim and shall also state
whether such Party agrees to the Arbitrator chosen by the Demanding Party. If
the Non-Demanding Party fails to agree to the Arbitrator chosen by the Demanding
Party, then such Non-Demanding Party shall state in its response the name of the
proposed Arbitrator chosen by such non-Demanding Party as the proposed
Arbitrator. If the Non-Demanding Party fails to deliver its written response to
the Demanding Party within ten (10) days after receipt of the Demand, or if the
Non-Demanding Party fails to select in its written response a proposed
Arbitrator, then the Arbitrator selected by the Demanding Party shall serve as
the Arbitrator. An Arbitrator shall not be employed by any party or its
Affiliate, directly, indirectly or as an agent, except in connection with the
arbitration proceeding. Any person appointed as an Arbitrator shall be
knowledgeable and experienced in the matters sought to be arbitrated.
(c) The locale of the Arbitration shall be the offices of
the American Arbitration Association in Las Vegas, Nevada or at such other
location in Las Vegas, Nevada to which the Demanding Party and the Non-Demanding
Party agree.
(d) If the Non-Demanding Party selects a proposed
Arbitrator different than the Arbitrator selected by the Demanding Party, and
such selection is indicated by the Non-Demanding Party in its written response
to the Demanding Party made within ten (10) days after receipt of the Demand,
then the parties shall, for ten (10) days after the Demanding Party's receipt of
the Non-Demanding Party's written response to the Demand, attempt to agree upon
an Arbitrator. If the parties cannot agree upon an Arbitrator within said ten
(10) day period, then a single neutral Arbitrator shall be appointed by the
Eighth Judicial District Court of the State of Nevada in accordance with NRS
Section 38.055 on the application of the Demanding Party.
(e) The Arbitrator's powers shall be limited as follows:
the Arbitrator shall follow the substantive laws of the State of Nevada and the
Rules of Evidence of Nevada, and his/her decision shall be subject to review
thereon in accordance with the provisions of NRS Chapter 38.
(f) The costs of the resolution (including all reporter
costs) shall be split among the parties participating in the Arbitration
provided, however, that such costs, along with all other costs and expenses,
including attorneys' fees, shall be subject to award, in full or in part, by the
Arbitrator, in his/her discretion, to the prevailing party. Unless the
Arbitrator so award attorneys' fees, each party shall be responsible for its own
attorneys' fees.
(g) To the extent possible, the Arbitration hearings
shall be conducted on consecutive days, excluding Saturdays, Sundays and
holidays, until the completion of the hearings.
17
(h) In connection with any Arbitration proceedings
commenced hereunder, any party shall have the right to join any third parties in
such proceedings in order to resolve any other disputes, the facts of which are
related to the matters submitted for arbitration hereunder.
(i) The Arbitrator shall render his/her decisions
concerning the substantive issues in dispute in writing. The written decision
shall be sent to the parties no later than thirty (30) days following the last
hearing date.
(j) All hearings shall be concluded within ninety (90)
days from the day the Arbitrator is selected or appointed, unless the Arbitrator
determines that this deadline is impractical.
(k) If any of the provisions relating to Arbitration are
not adhered to or complied with, any party may petition the Eighth Judicial
District Court of the State of Nevada for appropriate relief in accordance with
NRS Chapter 38.
(l) Upon application of a party to the Eighth Judicial
District Court of the State of Nevada within one (1) year, the award of
Arbitrator may be confirmed and entered as a judgment in a court of competent
jurisdiction. All Arbitration conducted under this Article 10 shall be in
accordance with NRS Chapter 38 (the Nevada Uniform Arbitration Act) and the
rules of the American Arbitration Association to the extent such rules do not
conflict with the procedures herein set forth. To the extent permitted by law,
compliance with this Article 10 is a condition precedent to the commencement by
any party of a judicial proceeding arising out of any dispute relating directly
or indirectly to this Agreement.
10.2 Force Majeure; Discharge and Release. The force majeure
provisions set forth in Article 10 of the REA and the Discharge and Release
provisions set forth in Article 11 of the REA are hereby incorporated into this
Agreement in their entirety by this reference.
10.3 Attorneys' Fees. If any party shall institute any legal action
or proceeding in connection with any Default or claim of Default under this
Agreement, the prevailing party shall be entitled to recover from the
non-prevailing party its reasonable fees and costs, including attorneys' fees
and other reasonable expenses, as fixed by the court in its discretion.
10.4 Notices.
(a) Any and all notices, demands, requests, consents,
approvals, designations, or other communications (collectively for purposes of
this Section 10.4, "Notice") required or desired to be given, made, received and
communicated hereunder by any other party shall be in writing by personal
delivery, by deposit in the United States mail, certified or registered, postage
prepaid, return receipt requested, by overnight express delivery service or by
facsimile transmission, to the following addresses and fax numbers:
18
Aladdin Gaming: Aladdin Gaming, LLC
2810 W. Charleston Blvd., Suite 58
Las Vegas, Nevada 89102
Attn.: Jack Sommer
Telephone: 702-870-1234
Facsimile: 702-870-8733
with a copy to:
Ronald Dictrow
c/o Sommer Properties
280 Park Avenue
New York, New York 10017
Telephone: 212-661-0700
Facsimile: 212-661-0844
and
Schreck Morris
300 South Fourth Street, Suite 1200
Las Vegas, Nevada 89101
Attn.: Ellen L. Schulhofer, Esq.
Telephone: 702-382-2101
Facsimile: 702-382-8135
and
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Attn.: Wallace L. Schwartz, Esq.
Telephone: 212-735-3000
Facsimile: 212-735-2000
Bazaar Company: Bazaar Company, LLC
c/o TH Bazaar Centers, Inc.
4350 La Ma Village Drive, Suite 400
San Diego, California 92122-1233
Attention: Wayne Finley and Wendy Godoy
Telephone No.: (619) 546-3535
Facsimile No.: (619) 546-3307
with a copy to: John Bedard
TH Bazaar Centers, Inc.
4350 La Jolla Village Drive, Suite 400
San Diego, California 92122-1233
Telephone No.: (619) 546-3304
Facsimile No.: (619) 546-3413 .
and
19
Allen, Matkins, Leck, Gamble & Mallory LLP
501 W. Broadway, Suite 900
San Diego, California 92101
Attn: Michael C. Pruter, Esq.
Telephone: 619-235-1517
Facsimile: 619-233-1158
Aladdin Music Holdings: Aladdin Music Holdings, LLC
c/o Sigmund Sommer Properties
2810 West Charleston Boulevard, Suite 58
Las Vegas, Nevada 89102
Attn: Jack Sommer
Telephone: 702-870-1234
Facsimile: 702-870-8733
with a copy to:
Ronald Dictrow
c/o Sommer Properties
280 Park Avenue
New York, New York 10017
Telephone: 212-661-0700
Facsimile: 212-661-0844
and
Schreck Morris
300 South Fourth Street, Suite 1200
Las Vegas, Nevada 89101
Attn.: Ellen L. Schuffiofer, Esq.
Telephone: 702-382-2101
Facsimile: 702-382-8135
and
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Attn.: Wallace L. Schwartz, Esq.
Telephone: 212-735-3000
Facsimile: 212-735-2000
Each party may designate at any time a different or additional address for its
receipt of Notice by giving at least ten (10) days' notice of such change of
address to all other parties.
(b) Any Notice shall be deemed to have been given, made,
received and communicated, as the case may be, on the date personal delivery was
effected if personally served, three (3) business days after the deposit thereof
in the United States mail, one (1) business day after the deposit thereof with
the overnight delivery service, and on the date of transmission if by facsimile
[and received by the recipient prior to 5:00 p.m. on the recipient's business
day][(provided a hard copy of the same is sent in another manner permitted
herein within twenty-four (24) hours of
20
transmission)]; provided, however, if delivery is not completed due to the
absence of the recipient or his/her refusal to accept delivery, delivery to the
Person identified above for receipt of copies shall be deemed to be delivery to
the primary addressee. If any such Notice requires any action or response by the
recipient or involves any consent or approval solicited from the recipient, such
fact shall be clearly stated in the Notice.
(c) In the event a party shall give Notice to any other
party of a Default, such Party shall concurrently send each of the other parties
and (provided the Mortgagees shall have given to the party giving such Notice a
notice substantially in the form prescribed in Article 15 of the REA) their
Mortgagees a copy of such Notice, and such Mortgagees shall have the same rights
to Cure Defaults under this Agreement by the owner of the Tract encumbered by
their Mortgages as they have to Cure Defaults under the REA.
10.5 Partial Invalidity. If any provision of this Agreement or the
application thereof to any Person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the application of
such provision to Persons or circumstances other than those to which it is held
invalid or unenforceable, shall not be affected thereby, and each provision of
this Agreement shall be valid and be enforced to the fullest extent permitted by
law.
10.6 Governing Law. This Agreement shall be governed by,
interpreted under, and construed in accordance with the laws of the State of
Nevada. The parties intend and agree that the proper form for the litigation of
any and all disputes or controversies arising out of or related to this
Agreement, to the extent that such dispute is not submitted to Arbitration, is
any circuit court of the State of Nevada or the Eighth Judicial District Court
of the State of Nevada in Las Vegas, Nevada. Each of the parties agrees that it
will not commence any action or proceeding arising out of or relating to this
Agreement in any court other than as specified in the preceding sentence on
grounds of forum non conveniens or any other grounds, and hereby stipulates and
irrevocably agrees that said courts have in personam jurisdiction over each of
them for such litigation of any dispute or controversy arising out of or in any
way related to this Agreement.
10.7 Captions. The captions and headings in this Agreement are for
convenience only, are not a part of this Agreement, and do not in any way limit
or amplify the provisions hereof.
10.8 Amendments. The parties agree that the provisions of this
Agreement may be modified or amended, in whole or in part, only by an instrument
in writing, executed and acknowledged by Bazaar Company and Aladdin Gaming. The
parties shall make those modifications and amendments to this Agreement
requested by any of their respective Mortgagees that do not materially increase
their respective obligations hereunder or adversely affect or diminish their
respective rights, so long as such modifications and amendments shall be at no
cost to the non-requesting party.
10.9 Relationship of Parties. The relationship of the parties is
that of licensor and licensee and nothing herein shall be deemed to be a
contract for employment or to constitute an agreement to share profits and
losses or to create a relationship of joint venture, partnership,
agent-principal, or any other type of association between the parties or any
officer, director, manager, member or employee of the parties.
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10.10 Time of Essence. Time is of the essence with respect to the
performance of each of the terms, covenants, restrictions and conditions
contained in this Agreement.
10.11 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which, taken
together, shall constitute one and the same instrument.
10.12 Binding Obligations. This Agreement shall be binding upon and
inure to the benefit of the successors and permitted assigns of the parties
hereto.
10.13 Waiver. A party's waiver of another party's default or of a
provision of this Agreement must be made in writing, and no such waiver shall be
implied from a party's failure to take or exercise, or delay in taking or
exercising, any action or right in respect thereof (unless the time specified
herein for taking such action or exercising such right has expired). No express
waiver of any default shall affect any default, or cover any period of time,
other than the precise default and period of time specified in such express
waiver. No waiver of any default in the performance of any term, covenant,
restriction or condition of this Agreement shall be deemed or shall constitute a
waiver of any subsequent default or of any other term, covenant, restriction, or
condition, nor shall any waiver constitute a continuing waiver. A party's giving
of its consent or approval to any act or request of another party or the single
or partial exercise of any right shall not be deemed to waive or render
unnecessary the consenting party's consent to or approval of or the exercise of
any subsequent acts, requests or rights, whether or not similar.
10.14 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior understandings and writings and respect, thereto.
10.15 Conflicts with REA. Notwithstanding anything to the contrary
in Section 10.14 above, to the extent this Agreement fails to address an issue
or matter addressed in the REA, the provisions of the REA shall control.
10.16 Memorandum of Agreement. After the REA has been recorded in
the office of the Recorder of Clark County, Nevada, and prior to the recordation
of any Mortgage, the parties hereto agree that they shall prepare, execute and
cause to be recorded with the Clark County Recorder a Memorandum of Common
Parking Area Use Agreement in the form attached hereto as Exhibit "A". Upon
termination of this Agreement, either party, at the other party's request, will
execute and record a statement of termination of this Agreement which states the
applicable termination date.
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IN WITNESS WHEREOF, the parties hereto have set forth their hands on
the day and year first above mentioned.
"Aladdin Gaming" "Bazaar Company"
ALADDIN GAMING, LLC, a ALADDIN BAZAAR, LLC, a
Nevada limited liability company Delaware limited liability company
By: Aladdin Bazaar Holdings, LLC, a
Nevada limited liability company, its
Member
By: By: Aladdin Management Corporation,
--------------------------------- its Manager
Ronald B. Dictrow, Executive Vice
President and Secretary
By:
-------------------------------
Jack Sommer, Vice President and
Secretary
By: TH Bazaar Centers Inc., a Delaware
corporation, its Member
By:
--------------------------------------
Wayne J. Finley, Senior Vice President
By:
-------------------------------------
Wendy M. Godoy, Senior Vice President
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