Design/Build Contract
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
SKADDEN, ARPS, SLATE, XXXXXXX & XXXX LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
================================================================================
(Space Above For Recorder's Use)
ALADDIN GAMING/BAZAAR/MUSIC
CONSTRUCTION, OPERATION AND RECIPROCAL
EASEMENT AGREEMENT
by and among
ALADDIN GAMING, LLC,
a Nevada limited-liability company
"Aladdin Gaming"
and
ALADDIN BAZAAR, LLC,
a Delaware limited liability company
"Bazaar Company"
and
ALADDIN MUSIC HOLDINGS, LLC
a Nevada limited-liability company
"Aladdin Music"
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS.......................................................4
ARTICLE 2 EASEMENTS........................................................22
2.1 Definitions and Conditions.......................................22
2.2 Easement: Automobile Parking, Vehicular and Pedestrian Access;
Emergency Egress.................................................26
2.3 Easement: Utilities..............................................27
2.4 Easement: Construction...........................................30
2.5 Easement: Maintenance of Common Structural Supports..............32
2.6 Easement: Exterior and Accent Lights.............................33
2.7 Easement: Truck Loading Areas....................................33
2.8 Easement: Encroachments..........................................34
2.9 Easement: Roof...................................................35
2.10 Easement: Setbacks...............................................35
2.11 Easement: General Integration, Maintenance and Development.......35
2.12 No Dedication of Easements.......................................36
2.13 Abandonment of Easements.........................................36
2.14 Granting of Easements to Utility Companies.......................36
2.15 Easement: Monorail...............................................37
2.16 Easement: Signs..................................................38
ARTICLE 3 CONSTRUCTION OF REDEVELOPED ALADDIN..............................39
3.1 General Covenants and Background.................................39
3.2 Workmanship......................................................40
3.3 Coordination.....................................................41
3.4 Interference During Construction.................................41
3.5 Optional Improvements and Music Hotel............................41
3.6 Mechanic's Liens.................................................43
3.7 Construction Bonds...............................................43
3.8 Temporary Termination of Fire Service............................43
3.9 Indemnity........................................................44
3.10 Submittal of As-Built Plans and Record Drawings..................44
3.11 Self-Help Cure of Construction Defaults..........................45
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ARTICLE 4 ALLOCABLE SHARES OF COMMON COSTS.................................45
4.1 Payments.........................................................45
4.2 Resolution of Disputes...........................................47
4.3 Creation of Lien and Personal Obligation for Payment of Allocable
Shares...........................................................47
4.4 Adjustments to Allocable Share of Common Costs...................47
ARTICLE 5 CENTRAL ENERGY PLANT.............................................48
5.1 Construction of Central Energy Plant.............................48
5.2 Purchase of Electricity, Chilled Water and Hot Water.............48
5.3 Sale of Excess Electricity, Chilled Water and Hot Water..........48
ARTICLE 6 FLOOR AREA, USE, AND OPERATION...................................49
6.1 Floor Area; First and Second Scheduled Opening Dates.............49
6.2 Uses.............................................................49
6.3 Limitation on Detrimental Characteristics........................50
6.4 Operation........................................................50
6.5 Gaming Activities................................................53
6.6 Commercial Subdivision; Taxes and Assessments....................54
6.7 Adjacent Land....................................................55
ARTICLE 7 COVENANTS AGAINST WASTE..........................................56
7.1 Waste............................................................56
7.2 Hazardous Substances.............................................56
ARTICLE 8 INDEMNIFICATION AND INSURANCE....................................56
8.1 Indemnity........................................................56
8.2 General Liability Insurance......................................56
8.3 Property Insurance...............................................57
8.4 Blanket Insurance................................................57
8.5 Controlled Insurance Program.....................................57
8.6 Mutual Release; Waiver of Subrogation............................57
8.7 Named Insureds...................................................58
ARTICLE 9 REPAIR, MAINTENANCE, ALTERATIONS AND RES-
TORATION.........................................................58
9.1 Maintenance - Buildings..........................................58
9.2 Maintenance - Common Parking Area................................59
9.3 Alterations - Buildings and Common Area..........................59
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9.4 Restoration of Buildings and/or Common Area......................61
9.5 Restoration of Improvements Not Covered by Section 9.4...........61
9.6 Standards of Construction........................................62
9.7 Licenses for Repairs, Maintenance, Alterations and Restoration...63
9.8 Clearing of Building Site........................................64
9.9 Self-Help Cure of Maintenance and Restoration Defaults...........64
9.10 Lien.............................................................65
9.11 Article 9 Approvals..............................................65
ARTICLE 10 FORCE MAJEURE....................................................65
10.1 Force Majeure....................................................65
10.2 Notice...........................................................65
ARTICLE 11 DISCHARGE AND RELEASE............................................66
11.1 Discharge on Transfer............................................66
11.2 Discharge on Involuntary Transfer................................66
11.3 Exceptions to Discharge..........................................67
11.4 Discharge of Mortgagee...........................................67
11.5 Aladdin Gaming Released From Operating Covenants.................67
11.6 Bazaar Company Released from Operating Covenants.................67
11.7 Aladdin Music Released from Operating Covenants..................67
11.8 Excuse and Release From Restoration Covenants....................68
11.9 No Waiver........................................................68
ARTICLE 12 ARBITRATION......................................................69
12.1 Disputes Covered.................................................69
12.2 Arbitration Procedures...........................................69
ARTICLE 13 ATTORNEYS' FEES..................................................71
13.1 Prevailing Party.................................................71
ARTICLE 14 NOTICES..........................................................72
14.1 Notices to Parties...............................................72
ARTICLE 15 MORTGAGEE PROVISIONS.............................................77
15.1 Mortgagee Notice.................................................77
ARTICLE 16 AMENDMENT........................................................78
16.1 Method and Effect of Amendment...................................78
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16.2 No Third Party Beneficiary......................................79
ARTICLE 17 TERMINATION OF REA..............................................79
ARTICLE 18 EXERCISE OF APPROVAL RIGHTS.....................................79
ARTICLE 19 EFFECTIVE DATE OF REA...........................................80
ARTICLE 20 MISCELLANEOUS...................................................81
20.1 Breach Shall Not Defeat Mortgage................................81
20.2 Breach Shall Not Permit Termination.............................81
20.3 Captions........................................................81
20.4 Interpretation..................................................81
20.5 Governing Laws and Forum........................................81
20.6 Injunctive Relief...............................................82
20.7 No Partnership..................................................82
20.8 Not a Public Dedication.........................................82
20.9 Payment on Default..............................................82
20.10 Severability....................................................83
20.11 Successors......................................................83
20.12 Time of Essence.................................................83
20.13 Waiver of Default...............................................83
20.14 Rights Cumulative...............................................84
20.15 Counterparts....................................................84
20.16 Estoppel Certificates...........................................84
20.17 Limitation on Liability.........................................85
20.18 Index...........................................................86
20.19 Compliance With Laws............................................86
20.20 Conflicts.......................................................87
EXHIBIT "A-1" - LEGAL DESCRIPTION SITE........................................93
EXHIBIT "A-2" - LEGAL DESCRIPTION GAMING SITE.................................94
EXHIBIT "A-3" - LEGAL DESCRIPTION BAZAAR SITE.................................95
EXHIBIT "A-4" - LEGAL DESCRIPTION ALADDIN MUSIC SITE..........................96
EXHIBIT "A-5" - LEGAL DESCRIPTION UTILITY SITE................................97
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EXHIBIT "A-6" - LEGAL DESCRIPTION OPTIONAL IMPROVEMENTS
SITE........................................................98
EXHIBIT "B" - SITE PLANS
EXHIBIT "C" - PLANS AND SPECIFICATIONS
SCHEDULE "I" - ALLOCABLE SHARE OF COMMON COSTS
SCHEDULE "II" - ALLOCABLE SHARE OF REAL ESTATE TAXES
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CONSTRUCTION, OPERATION AND
RECIPROCAL EASEMENT AGREEMENT
(Aladdin Gaming/Bazaar/Music)
THIS CONSTRUCTION, OPERATION AND RECIPROCAL EASEMENT AGREEMENT (this
"REA") is made and entered into as of February 26, 1998, by and between ALADDIN
GAMING, LLC, a Nevada limited-liability company ("Aladdin Gaming"), ALADDIN
BAZAAR, LLC, a Delaware limited liability company ("Bazaar Company"), and
ALADDIN MUSIC HOLDINGS, LLC, a Nevada limited-liability company ("Aladdin
Music").
R E C I T A L S :
X. Xxxxxxx Xxxxxx is the owner of that certain real property located
at 0000 Xxx Xxxxx Xxxxxxxxx Xxxxx xx Xxxxx Xxxxxx, Xxxxxx (the "County") which
is more particularly described on Exhibit "A-1" attached hereto (the "Site").
The Site is currently improved with certain improvements commonly known as the
"Aladdin Hotel and Casino" which are being, or will be, demolished and
redeveloped, pursuant to the terms of that certain Site Work Development and
Construction Agreement dated as of the date hereof, among Aladdin Holdings, LLC,
Aladdin Gaming and Bazaar Company (the "Site Work Agreement"). A memorandum of
the Site Work Agreement shall be recorded in the Official Records of the County
immediately following the recordation of this REA. In addition to the demolition
contemplated by the Site Work Agreement, certain portions of the Site will be
prepared pursuant to the terms of the Site Work Agreement with various on-site
and off-site infrastructure improvements to permit the development of the
Redeveloped Aladdin (as hereinafter defined) described in this REA.
B. That portion of the Site not including the Bazaar Site, the
Aladdin Music Site, the Energy Site and the Optional Improvements Site (as such
terms are hereinafter defined) is more particularly described on Exhibit "A-2"
attached hereto (the "Gaming Site"). Aladdin Gaming shall construct and/or
renovate on the Gaming Site the Aladdin Improvements (as hereinafter defined)
consisting of certain related and physically attached facilities, including a
hotel containing approximately 2600 rooms, an approximately 116,000 square foot
casino, a Theater for Performing Arts (as hereinafter defined), an area (the
"Aladdin Parking Area") which shall consist of space for approximately 500 motor
vehicles, and truck docking and loading facilities which shall be located
beneath the hotel and casino, all as more particularly set forth on the Site
Plans and the Plans and Specifications (as such terms are hereinafter defined).
X. Xxxxxxx Xxxxxx has leased to Bazaar Company a portion of the Site
to permit the construction and operation by Bazaar Company of the Bazaar
Improvements (as hereinafter defined) pursuant to the terms of that certain
lease between Aladdin Gaming and Bazaar Company (the "Bazaar Lease"). A
memorandum of the Bazaar Lease shall be recorded in the Official Records of the
County immediately prior to the recordation of this REA. That portion of the
Site subject to the Bazaar Lease and upon which the Bazaar Improvements will be
developed is more particularly described on Exhibit "A-3" attached hereto (the
"Bazaar Site").
X. Xxxxxxx Xxxxxx has leased to Aladdin Music a portion of the Site
pursuant to the terms of that certain lease between Xxxxxxx Xxxxxx and Aladdin
Music (the "Music Lease") to permit the construction and operation by Aladdin
Music of a second hotel and casino facility consisting of certain related and
physically attached facilities, including a hotel containing approximately 1000
rooms and an approximately 50,000 square foot casino located on the corner of
Xxxxxx Street and Xxxxxx Avenue as more particularly described herein below (the
"Music Hotel"). A memorandum of the Music Lease shall be recorded in the
Official Records of the County immediately prior to the recordation of this REA.
That portion of the Site subject to the Music Lease and upon which the Music
Hotel will be developed is more particularly described on Exhibit "A-4" attached
hereto (the "Aladdin Music Site").
X. Xxxxxxx Xxxxxx has leased to Energy Provider (as hereinafter
defined) a portion of the Site pursuant to the terms of that certain lease dated
as of December 3, 1997, between Xxxxxxx Xxxxxx and Energy Provider (the "Energy
Lease"). Pursuant to the Energy Provider Agreement (as hereinafter defined),
Energy Provider is obligated to construct and operate a central energy plant
(the "Central Energy Plant") for the cogeneration of electricity, the production
of chilled water and hot water, and the distribution of electricity, chilled
water and hot water to the Site. A memorandum of the Energy Lease shall be
recorded in the Official Records of the County immediately prior to the
recordation of this REA. That portion of the Site subject to the Energy Lease
and upon which the Central Energy Plant will be developed is more particularly
described on Exhibit "A-5" attached hereto (the "Energy Site").
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F. Conditioned upon the due performance of the demolition and
infrastructure development described in the Site Work Agreement, Aladdin Gaming
and Bazaar Company are each obligated to construct certain improvements on the
Gaming Site and the Bazaar Site, respectively, pursuant to the terms of the Site
Work Agreement and this REA, as more particularly described on the Site Plans
and the Plans and Specifications (the "Initial Planned Floor Area"). The
improvements required to be constructed by Bazaar Company on the Bazaar Site
pursuant to the terms of this REA shall be owned by Bazaar Company and are
hereinafter collectively referred to as the "Bazaar Improvements". The
improvements required or permitted to be constructed and/or renovated by Xxxxxxx
Xxxxxx pursuant to the terms of this REA shall be owned by Xxxxxxx Xxxxxx and
are hereinafter referred to as the "Aladdin Improvements". The Bazaar
Improvements, the Music Hotel, the Central Energy Plant and the Aladdin
Improvements are sometimes hereinafter collectively referred to as the
"Redeveloped Aladdin". As more particularly described in this REA, while all of
the Bazaar Improvements are required to be constructed by Bazaar Company, only a
portion of the Aladdin Improvements are required to be constructed by Xxxxxxx
Xxxxxx. Construction of any Aladdin Improvements which are not required to be
constructed by Xxxxxxx Xxxxxx pursuant to this REA (the "Optional Improvements")
may be developed by the Aladdin Parties (as hereinafter defined), subject to the
terms and conditions of this REA.
G. The Bazaar Improvements consist of the "Retail Facility" and the
"Common Parking Area." The Retail Facility consists of approximately 726,000
square feet of Floor Area (including approximately 462,000 square feet of gross
leasable retail area) in the nature of an enclosed themed entertainment shopping
mall located at particular elevations of the Aladdin Improvements with various
vertical penetrations above and below such elevations, all as more particularly
described on the Site Plans and the Plans and Specifications. The Common Parking
Area consists of a multi-level parking structure for approximately 4,800 motor
vehicles adjacent to the Bazaar Improvements and surface-level parking
facilities for approximately 364 motor vehicles beneath and adjacent to the
Retail Facility, as more particularly described on the Site Plans and the Plans
and Specifications. The Common Parking Area does not include the Aladdin Parking
Area.
H. The Parties to this REA desire that the Redeveloped Aladdin be
improved and operated as a mixed-use project which is physically and function
ally integrated through, among other things, reciprocal easements for parking
and
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access, construction easements for development and renovation of the Redeveloped
Aladdin, and the adoption and observance of uniform standards of development,
operation and maintenance as set forth in this REA.
NOW, THEREFORE, in consideration of the foregoing, the covenants
contained herein, and for other and good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties hereto hereby
agree as follows:
ARTICLE 1
DEFINITIONS
As used in this REA, references to "Recitals," "Articles,"
"Sections" and "Exhibits" are references to corresponding portions of this REA.
Listed below are definitions for certain terms that are used in this REA with
particular meanings. Unless otherwise defined herein, capitalized terms used in
this REA shall have the meanings set forth in this Article 1. Unless otherwise
noted, a defined term shall include, where appropriate to the context, the noun
(singular and plural), verb and adjective forms of the terms.
Accounting Period. "Accounting Period" shall mean any period
beginning on January 1 and ending on the next following December 31, except that
the first Accounting Period shall commence on the date hereof and shall end on
the following December 31, and the last Accounting Period shall end on the
Termination Date.
Adjacent Land. "Adjacent Land" is defined in Section 6.7.
Affiliate. "Affiliate" shall mean 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 REA to the contrary, in no event shall any Party be considered to be an
Affiliate of any other Party or Affiliates thereof, notwithstanding the fact
that Affiliates of certain Parties hold a fifty percent (50%) membership
interest in other Parties.
Aladdin Gaming. "Aladdin Gaming" shall initially mean Aladdin
Gaming, LLC, a Nevada limited-liability company, and upon a Transfer or
4
Involuntary Transfer of such Person's interest in the Site, "Aladdin Gaming"
shall mean such Person's Transferee.
Aladdin Hotel and Casino. "Aladdin Hotel and Casino" is defined in
Recital A.
Aladdin Improvements. "Aladdin Improvements" is defined in Recital F
and includes the Buildings and Common Area improvements on the Gaming Site, as
more particularly set forth on the Site Plans and the Plans and Specifications,
including any present or future Construction or alteration of the Optional
Improvements, in accordance with the terms of this REA and the Site Work
Agreement, as the same may exist from time-to-time. Aladdin Improvements shall
not include any of the Aladdin Improvements that have been from time-to-time
razed or removed in accordance with the terms of this REA.
Aladdin Music. "Aladdin Music" shall initially mean Aladdin Music
Holdings, LLC, a Nevada limited-liability company, and upon a Transfer or
Involuntary Transfer of such Person's interest in the Site, "Aladdin Music"
shall mean such Person's Transferee.
Aladdin Music Site. "Aladdin Music Site" is defined in Recital D.
Aladdin Parking Area. "Aladdin Parking Area" is described in Recital
B and includes portions of the Gaming Site, as more particularly set forth on
the Site Plans and the Plans and Specifications.
Aladdin Parties. "Aladdin Parties" shall mean Aladdin Gaming and/or
its Permitted Transferees.
Allocable Share of Common Costs. "Allocable Share of Common Costs"
shall mean that portion of each category of the Common Costs allocable to each
Tract on a monthly basis for each Accounting Period, subject to adjustment on an
annual basis as provided in this REA. The Common Costs allocable to each Tract
shall also be subject to adjustment pursuant to the terms of Section 4.4 hereof
at such time as any Optional Improvements shall be developed by an Aladdin
Party, or a successor thereof. The Party responsible for maintaining and
operating the Common Area affected by an adjustment shall notify each Party of
such adjustment in accordance with Article 4 hereof. The initial Allocable Share
of Common Costs for each Tract shall be equal to the percentages and paid by the
5
Parties set forth on Schedule "I" hereto for each such Tract, which amounts
shall be payable to Bazaar Company or Aladdin Gaming, as the case may be, as set
forth in this REA.
Allocable Share of Real Estate Taxes. "Allocable Share of Real
Estate Taxes" is defined in Section 6.6.
Annual Statement. "Annual Statement" is defined in Section 4.1(b).
Arbitrator. "Arbitrator" is defined in Section 12.2(a).
Attorneys' Fees. "Attorneys' Fees" is defined in Article 13.
Bazaar Company. "Bazaar Company" shall initially mean Aladdin
Bazaar, LLC, a Delaware limited liability company, and upon a Transfer or
Involuntary Transfer of such Person's interest in the Site, "Bazaar Company"
shall mean such Person's Transferee.
Bazaar Improvements. "Bazaar Improvements" is defined in Recital F
and includes the Buildings and Common Area improvements on the Bazaar Site, as
more particularly set forth on the Site Plans and the Plans and Specifications,
including any present or future Construction or alteration thereof in accordance
with the terms of this REA, as the same may exist from time to time. Bazaar
Improvements shall not include any of the Bazaar Improvements that have been
from time to time razed or removed in accordance with the terms of the Bazaar
Lease and this REA.
Bazaar Lease. "Bazaar Lease" is defined in Recital C.
Bazaar LLC Agreement. "Bazaar LLC Agreement" shall mean that Limited
Liability Company Agreement of Aladdin Bazaar, LLC dated as of September 3,
1997, as amended on October 16, 1997 and as thereafter amended from time to
time.
Bazaar Perimeter Areas. "Bazaar Perimeter Areas" means the
sidewalks, landscaping, irrigation, lighting and similar areas to be maintained
by Bazaar Company, as more particularly set forth on the Site Plans and the
Plans and Specifications.
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Bazaar Site. "Bazaar Site" is defined in Recital C.
Budget. "Budget" is defined in Section 4.1(a).
Building. "Building" shall mean all portions of the buildings and
improvements (including alterations or restorations) that exist or are
constructed from time to time on a Party's Tract.
Casino Perimeter Areas. "Casino Perimeter Areas" means the
sidewalks, landscaping, irrigation, lighting and similar areas to be maintained
by Aladdin Gaming, as more particularly set forth on the Site Plans and the
Plans and Specifications.
Central Energy Plant. "Central Energy Plant" is defined in Recital
E.
Cessation Right. "Cessation Right" is defined in Section 6.4(h).
Claim. "Claim" is defined in the definition of "Indemnify".
Commercial Subdivision. "Commercial Subdivision" is defined in
Section 6.6.
Common Area. "Common Area" shall mean the Common Parking Area,
Common Area Utility Lines, the Bazaar Perimeter Areas, the Casino Perimeter
Areas and the Fire Command Center, all as more particularly set forth on the
Site Plans and the Plans and Specifications, subject to any restrictions set
forth in this REA. The Common Area, except the Common Parking Area, shall be
maintained, repaired, operated and restored by the Parties set forth on Schedule
"I" hereto. The Common Parking Area shall be maintained, repaired, operated and
restored by Bazaar Company pursuant to the Parking Use Agreement.
Common Area Utility Line. "Common Area Utility Line" is defined in
Section 2.1(e).
Common Area Work. "Common Area Work" is defined in Section 4.1.
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Common Costs. "Common Costs" shall mean those expenses and costs
which arise in connection with the proper maintenance, repair and operation of
the Common Area (including administrative fees to the extent representative of
actual costs and expenses, but not profits, except as expressly provided in the
Parking Use Agreement) and which are to be shared between certain of the Parties
in accordance with their respective Allocable Share of Common Costs. Each Party
shall be responsible for, and Common Costs shall not include, the cost of
building, installing, maintaining and operating Buildings, except to the extent
the Parties hereto otherwise agree to include such costs as Common Costs. In no
event shall Common Costs include any of the following: (i) the cost of any
demolition or construction Work contemplated by the Site Work Agreement,
including but not limited to the cost of constructing the Initial Planned Floor
Area and the Optional Improvements; (ii) any costs specifically allocated to or
required to be paid by a Party pursuant to the Site Work Agreement, the Bazaar
Lease, the Music Lease, the Energy Lease, the Parking Use Agreement, this REA,
any environmental indemnity, or any other agreement between two or more Parties
hereto which specifically requires any such Party to bear a cost or expense
which might other wise be considered a Common Cost; (iii) promotional costs and
activities; (iv) Construction, operation, maintenance, repair, replacement and
restoration of the Central Energy Plant; (v) costs imposed by the County or
other governmental authorities claiming jurisdiction over the Site which relate
to the use to which any individual Tract is put; (vi) depreciation and financing
costs attributable to any of the improvements comprising the Redeveloped
Aladdin; (vii) the continuing cost of complying with any requirements imposed by
the County or any other governmental authority in connection with the
realignment of Xxxxxx Avenue and pedestrian bridges, which cost shall remain the
responsibility of Xxxxxxx Xxxxxx; (viii) the cost of special services, goods or
materials provided to or specific costs incurred for the account of specific
Parties, Occupants or Permittees rather than for the benefit of the Site as a
whole; (ix) amounts paid in respect of Common Costs to an Affiliate of an
Operator Party to the extent such amounts are in excess of amounts that would be
paid on a commercially reasonable basis to qualified third parties in respect of
such costs; (x) real estate and personal property taxes with respect to each
Tract and each Party (except for personal property taxes attributable to
personal property to the extent used in connection with the Common Area) (it
being understood, however, that the Parties shall be responsible for their
respective Allocable Share of Real Estate Taxes as provided herein); and (xi)
the cost of Construction of the Monorail (it being understood, however, that
such cost shall nonetheless be subject to equitable allocation among the Parties
as set forth in Section 2.15 hereof).
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Common Parking Area. "Common Parking Area" is referenced in Recital
G and shall mean that portion of the Bazaar Improvements located on the Bazaar
Site and designated on the Site Plans and the Plans and Specifications for the
shared use of the Redeveloped Aladdin in connection with the parking, passage,
and loading of motor vehicles and trucks, together with related improvements
which at any time are constructed in connection therewith, including but not
limited to roadways, pedestrian sidewalks, stairways, elevators, bridges,
landscaping light standards, directional signs, driveways and curbs, in each
case to the extent indicated on the Site Plans and the Plans and Specifications.
Construction. "Construction" is defined in Section 3.1.
Contracting Party. "Contracting Party" is defined in Section 3.6.
Control. "Control" shall mean ownership of a Person or Party in
excess of 50% and/or 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. A "change of control" shall mean that Control passes from one
Person and its Affiliates to another in a single transaction or a series of
related transactions.
Controlled Insurance Program. "Controlled Insurance Program" is
defined and set forth in that certain Contract between Xxxxxxx Xxxxxx and Xxxxx
Xxxxxx, Inc. for Design/Build Services dated as of December 4, 1997.
County. "County" is defined in Recital A.
Cure. At such time as a Party is in Default and has received a
demand for the correction of such Default, such Party and its Mortgagee shall be
permitted thirty (30) days or such other amount of time specified herein within
which to render remedial performance sufficient to correct said Default, which
correction of said Default shall be referred to herein as "Cure." At its
election, the Party serving a notice of Default may also serve a demand for the
correction of such Default either concurrently with or subsequent to service of
the notice of Default, which demand shall specify the nature of the Default and
the precise duty or obligation under this REA alleged to have been breached.
Except as provided elsewhere in this REA to the contrary, whenever a Default is
not capable of Cure within the specified period, a Defaulting Party (or its
Mortgagee) shall be deemed
9
to have Cured the Default if it shall have commenced Cure within the specified
time period and shall have prosecuted the Cure continuously and diligently
thereafter to completion.
Default. "Default" shall mean a Party's breach of any of its
covenants or obligations set forth in this REA. A notice of Default may be
accompanied or followed by service of a demand for the correction of such
Default. A party in Default is sometimes referred to herein as a "Defaulting
Party."
Demolition Work. "Demolition Work" shall mean portions of the Site
which may be demolished, razed and removed and which is more particularly
described in Article II of the Site Work Agreement.
Demand. "Demand" is defined in Section 12.2(a) hereof.
Demanding Party. "Demanding Party" is defined in Section 12.2(a)
hereof.
Discharge. "Discharge" shall mean the full relief and exoneration
from any personal liability or responsibility of a Transferor, Mortgagor or
Mortgagee for performance of, granting of or compliance with all easements,
covenants, duties and obligations accruing and arising under this REA in
connection with a Party's possession of its Tract, which shall occur from and
after the effective date of the following: (a) with respect to a Transferor, a
Transfer, as more fully described in Section 11.1; (b) with respect to a
Mortgagor, an Involuntary Transfer, as more fully described in Section 11.2; and
(c) with respect to a Mortgagee, a Transfer by such Mortgagee after acquiring
title to a Tract (or portion thereof) in an Involuntary Transfer, as more fully
described in Section 11.4.
DPW Agreement. "DPW Agreement" shall mean that certain Aladdin Hotel
& Casino Agreement between Aladdin Holdings, LLC and the County, dated March 18,
1997.
Energy Provider. "Energy Provider" shall mean Northwind Aladdin,
LLC, a Nevada limited-liability company, and upon a Transfer or Involuntary
Transfer of such Person's interest in the Site, "Energy Provider" shall mean
such Person's Transferee.
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Energy Provider Agreement. "Energy Provider Agreement" is defined in
Section 2.1(f).
Energy Provider Utility Line. "Energy Provider Utility Line" is
defined in Section 2.1.
Energy Site. "Energy Site" is defined in Recital E.
Estimated Cost Statement. "Estimated Cost Statement" is defined in
Section 4.1.
Event of Default. "Event of Default" shall mean a Default beyond
applicable notice and period for Cure.
Excuse. "Excuse" shall mean the occurrence of an event of either (a)
force majeure pursuant to Article 10 that interferes with a Party's ability to
perform its obligations under this REA, or (b) the Default of another Party with
respect to its restoration covenants given in Article 9 to the extent that such
Default interferes with a non-Defaulting Party's ability to perform its
obligations under this REA and which Default shall, pursuant to Section 11.8(a),
result in the temporary relief of the non-Defaulting Party from its duty to
restore under Article 9, for so long as such force majeure event continues or
such Defaulting Party has not Cured its Default.
Final Completion Deadline. "Final Completion Deadline" is defined in
the Energy Provider Agreement.
Fire Command Center. "Fire Command Center" shall mean that certain
fire command center for the Site and all facilities in connection therewith, as
more particularly set forth on the Site Plans and the Plans and Specifications,
to be maintained by Aladdin Gaming or Bazaar Company, as such Parties shall
mutually determine.
First Scheduled Opening Date. "First Scheduled Opening Date" shall
mean that date by which the Redeveloped Aladdin, except for the Music Hotel, is
scheduled to be first opened for business to the public, as more particularly
set forth in the Site Work Agreement.
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Floor Area. "Floor Area" shall mean the aggregate, as established
from time to time by the Project Architect/Engineer, of the actual number of
square feet of floor space on all floors in any Building, whether or not roofed
or occupied or leased, excluding non-leasable areas such as equipment rooms,
subterranean areas, balconies and mezzanines, management offices, and the like,
but only to the extent the same are not actually leased or leasable, measured
from the exterior faces or exterior lines of the exterior walls (including
basement walls) and from the center line (as opposed to exterior face) of the
party and interior common walls. Estimates of the initial Floor Areas,
including, with respect to the Gaming Site and the Bazaar Site, the Initial
Planned Floor Area, are set forth on the Site Plans and the Plans and
Specifications, which estimates shall be adjusted from time to time as the
Redeveloped Aladdin is constructed and improved.
Gaming Authority; Gaming Activity; Gaming Facility; Gaming Laws.
"Gaming Authority" shall mean the Nevada Gaming Commission, the Nevada State
Gaming Control Board, the Xxxxx County Liquor and Gaming License Board, any
agency or authority operating under the Nevada Gaming Control Act, and any other
agency or authority of the State of Nevada regulating Gaming Activities. "Gaming
Laws" shall mean any statute, regulation, rule, mandate, opinion or similar
authority promulgated by a Gaming Authority. "Gaming Activity" shall mean any
use, operation, business or other activity which requires a license, approval,
authorization, registration or a finding of suitability from any Gaming
Authority. "Gaming Facility" shall mean a facility or facilities devoted
substantially to lodging, entertainment and the operation of Gaming Activities
open to the public at large, which facility and Gaming Activities are similar in
type to the majority of the hotel casinos located on the Las Vegas Strip. A
Gaming Facility may be associated with or included within or be a part of
another business operated in conjunction with the Gaming Facility including but
not limited to a hotel, hotel resort complex, amusement or theme ride parks,
retail center, and/or entertainment venues.
Gaming Equipment. "Gaming Equipment" is defined in Section 6.5(c).
Gaming Site. "Gaming Site" is defined in Recital B.
Grantee. "Grantee" is defined in Section 2.1(b).
Grantor. "Grantor" is defined in Section 2.1(a).
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Hazardous Substances. "Hazardous Substances" means and includes the
following, including mixtures thereof: any hazardous substance, pollutant,
contaminant, waste, by-product or constituent regulated under NRS Ch. 459, NRS
xx.xx. 618.750-618.850, NRS ss. 477.045, as amended, or any other federal, state
or local laws and regulations as amended or hereafter enacted regulating
hazardous or toxic substances or wastes, petroleum pollutant or waste or similar
substances, including, but not limited to, as defined in the Comprehensive
Environmental Response, Liability and Compensation Act, 42 U.S.C. 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., and 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. 6901 et seq. References to statutory authority in this
definition shall be deemed to refer to such authority as such may be amended
from time to time.
In. "In" is defined in Section 2.1(c).
Indemnify. "Indemnify" shall mean the obligation of a Party
("Indemnitor") to indemnify, hold harmless, protect and defend, with counsel
reasonably acceptable to the Person receiving such indemnity ("Indemnity"),
including such Person's Affiliates and their respective officers, directors,
partners, members, landlords, agents, servants and employees (individually and
collectively, "Indemnitee") from and against all losses, claims, actions, liens,
proceedings, liabilities, damages (excluding consequential and punitive
damages), costs and/or expenses (including the Indemnitee's reasonable
Attorneys' Fees) (collectively, a "Claim") resulting from the death of or injury
to any Person or the physical or economic damage to or loss of any property
arising out of the Indemnitor's duties
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or conduct specified in this REA. Such term shall also include the requirement
that the Indemnitee give the Indemnitor notice of any suit or proceeding
entitling the Indemnitee to indemnification pursuant to this REA. Failure to
give such notice shall not, however, in any manner negate or invalidate the
obligation to provide such indemnity, except to the extent the Indemnitor is
actually prejudiced thereby. No Party shall be obligated to Indemnify another
Party to the extent the Claim underlying the Indemnitee's request for Indemnity
(a) results from the negligence or intentional wrongdoing of the Indemnitee
without the negligence of the Indemnitor, or (b) results from such willful,
intentional or wanton acts or omissions of the Indemnitee as shall constitute an
"occurrence" excluded from coverage under standard comprehensive public
liability and property damage insurance policies as they may exist from time to
time.
Index. "Index" is defined in Section 20.18.
Infrastructure Improvements. "Infrastructure Improvements" means
those off-site and on-site infrastructure improvements depicted on the Site
Plans and the Plans and Specifications and installed, made, constructed,
restored or relocated by the Aladdin Parties in order to prepare the Site for
the development and construction of the Redeveloped Aladdin, and for ongoing
operation as required by the DPW Agreement and the County, including, without
limitation, grading, pad preparation, streets, roadways, driveways, walkways,
sidewalks, curbs, bridges, turning lanes, traffic control devices, traffic
signals, traffic mitigation measures, water drainage and flood control
mitigation measures, street lights, driveway and walkway lights, Building lights
(including lighting and ceilings that are underneath the Retail Facility),
signage, landscaping, pedestrian bridges, tunnels and overpasses (whenever
constructed) and preparation for the installation of utilities.
Initial Planned Floor Area. "Initial Planned Floor Area" is referred
to in Recital F and shall mean the Floor Area that Aladdin Gaming is required to
construct on the Gaming Site and Bazaar Company is required to construct on the
Bazaar Site, respectively, pursuant to the Site Work Agreement and this REA. The
Initial Planned Floor Area for the Bazaar Improvements and the required portion
of the Aladdin Improvements is more particularly set forth on the Site Plans and
the Plans and Specifications for the Bazaar Improvements and the Aladdin
Improvements, respectively.
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Involuntary Transfer. "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 or the grant of a deed in lieu of such foreclosure;
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 and this REA 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.
Licensee. "Licensee" is defined in Section 9.7.
Liened Party. The term "Liened Party" is defined in Section 3.6.
Monorail. "Monorail" is defined in Section 2.15.
Mortgage; Mortgagor; Mortgagee. "Mortgage" shall mean an indenture
of mortgage or a deed of trust encumbering 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.
Music Hotel. "Music Hotel" is defined in Recital D.
Music Lease. "Music Lease" is defined in Recital D.
Name. "Name" shall exclusively mean, with respect to Xxxxxxx Xxxxxx,
"Aladdin Hotel and Casino" or such other name as Xxxxxxx Xxxxxx may designate in
lieu thereof in the future, as to which Bazaar Company and Aladdin Music shall
have the right to reasonably approve, which approval shall not be unreasonably
withheld; with respect to Bazaar Company, "Desert Passage at Aladdin" or such
other name as Bazaar Company may designate in lieu thereof in the future, as to
which Xxxxxxx Xxxxxx and Aladdin Music shall have the right to reasonably
approve, which approval shall not be unreasonably withheld; and, with respect to
Aladdin Music, "Sound Asylum Hotel" or such other name as Aladdin Music may
designate in lieu thereof in the future, as to which Xxxxxxx Xxxxxx and Bazaar
Company shall have the right to reasonably approve, which approval shall not be
unreasonably withheld.
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Non-Demanding Party. "Non-Demanding Party" is defined in Section
12.2(a) hereof.
NRS. "NRS" shall mean Nevada Revised Statutes.
Occupant. "Occupant" shall mean the Parties hereto and any Person
from time to time entitled to use and occupy Floor Area under any lease,
sublease, deed or other instrument or arrangement.
Operator Party. "Operator Party" is defined in Section 4.1.
Optional Improvements. "Optional Improvements" is referred to in
Recital F and shall mean the office tower and/or time share facilities that are
permitted to be developed by the Aladdin Parties pursuant to this REA on that
portion of the Site more particularly described on Exhibit "A-6" attached hereto
(the "Optional Improvements Site"), in all instances to the extent permitted by
applicable law.
Optional Improvements Site. "Optional Improvements Site" is defined
in the definition of Optional Improvements.
Parking Use Agreement. "Parking Use Agreement" shall mean that
certain Common Parking Area Use Agreement dated as of the date hereof by and
between Bazaar Company and Aladdin Gaming. A memorandum of the Parking Use
Agreement shall be recorded in the Official Records of the County immediately
following the recordation of this REA.
Party. "Party" shall mean each of the following: Xxxxxxx Xxxxxx,
Bazaar Company, Aladdin Music, Energy Provider, the owner or lessee of any
portion of the Site conveyed by or leased from Xxxxxxx Xxxxxx for the purposes
of developing the Optional Improvements and, upon a Transfer or Involuntary
Transfer, any of their respective Transferees or Involuntary Transferees (as the
case may be), subject to the provisions of this Section with respect to
Transfers or Involuntary Transfers of partial interests in a Tract. Following a
Transfer or Involuntary Transfer, the Transferor or Involuntary Transferor shall
no longer be a Party; provided, however, that the easements, conditions,
covenants, obligations and restrictions of this REA shall be binding and
enforceable by any Party against any Transferor with respect to those time
periods during which such Transferor was a Party. A Mortgagee shall not be
deemed to be the Party with respect to a
16
Tract so long as the Mortgagor, as the applicable Party, retains the entire
possessory interest in such Tract except that if a Mortgagor conveys a Tract to
a Mortgagee upon the occurrence of a judicial or nonjudicial foreclosure or the
grant of a deed in lieu of foreclosure, then the Mortgagee shall become a Party,
although such Mortgagee shall not be liable for the acts or omissions of the
Transferor. Notwithstanding the foregoing, any such Mortgagee shall not be
deemed a Party unless and until said Mortgagee takes title to the Transferor's
interest in the subject Tract or is deemed to be a Mortgagee in possession
pursuant to applicable law.
A Transferee or Involuntary Transferee of any of the following
partial interests shall not be treated as a separate Party hereunder (but shall
nonetheless be subject to the terms of this REA), unless such Person is
designated in writing as the sole Party with respect to such Tract by all such
Persons owning a partial interest in such Tract:
(a) Any partial, subdivided interest in a Party's Tract
whether by parcelization, condominiumization or otherwise, except in
connection with the Commercial Subdivision;
(b) Any partial, undivided interest in all of a Party's Tract
or Tracts, such as an interest held in joint tenancy, tenancy-in-common
or as a life estate;
(c) Any partial, undivided interest, legal or equitable, in
the assets of any Party that is a Person other than an individual, which
interest is not an interest in the Party's Tract, such as a beneficial
interest in a Party which is a trust but not including the shareholders
and/or bond holders of a Party that is a corporation; and
(d) Any lease, sublease, easement or license (excluding the
Bazaar Lease, the Music Lease and the Energy Lease) affecting all or a
portion of a Tract.
Only one Person for each Tract may be designated as a Party. In the event that
the Persons owning such partial interests fail to designate a Person as the
Party, the acts of the Person who was the Party prior to the Transfer or
Involuntary Transfer (whether or not such Party retains any interest in the
Tract or Tracts in question) shall be binding on all Persons having an interest
or right in said Tract or Tracts, until such time as written notice of such
designation is given and recorded in the
17
office of the County Recorder of the County and a copy thereof is served on the
Parties in accordance with Article 14.
Perimeter Access Areas. "Perimeter Access Areas" means those areas
on a Party's Tract adjacent to a Party's Building between exterior Building
faces and the exterior boundary lines of the Site, including sidewalks, stairs,
escalators, elevators, people movers, monorails and all other surface
improvements relating to ingress and egress within said areas.
Permittee. "Permittee" shall mean any Party or Occupant and its
respective officers, directors, employees, partners, members, agents,
contractors, customers, visitors, invitees, subtenants, licensees and
concessionaires.
Person. "Person" shall mean an individual, fiduciary, partnership,
limited liability company, firm, association and corporation, or any other form
of business or government entity.
Plans and Specifications. "Plans and Specifications" shall mean all
drawings, plans and specifications prepared by or for a Party which describe and
show the labor, materials, equipment, fixtures and furnishings necessary for the
construction of the improvements on a Party's Tract and which are or will be
identified on Exhibit "C" attached hereto and made a part hereof, as the same
may be modified from time to time pursuant to this REA.
Prevailing Party. "Prevailing Party" is defined in Article 13.
Project Architect/Engineer. "Project Architect/Engineer" shall mean
ADP/FD of Nevada, Inc. with respect to architectural and engineering matters
relating to the Demolition Work, the Site Work, the Aladdin Improvements and the
shell of the Bazaar Improvements, who shall be retained by Xxxxxxx Xxxxxx, or
such other architect(s) or engineer(s) duly licensed to practice in the State of
Nevada as may from time to time be selected by Xxxxxxx Xxxxxx and, with respect
to the shell of the Bazaar Improvements, approved by Bazaar Company (which
approval shall not be unreasonably withheld and shall be deemed granted if not
denied within fifteen (15) days of a request therefor). "Project
Architect/Engineer" shall mean RTKL Associates, Inc. with respect to
architectural and engineering matters relating to the construction of the
interior of the shell of the Bazaar Improvements, who shall be retained by
Bazaar Company, or such other architect(s) or engineer(s) duly licensed to
practice in the State of Nevada as
18
may from time to time be selected by Bazaar Company. "Project
Architect/Engineer" shall mean ADP/FD of Nevada, Inc. with respect to
architectural and engineering matters relating to the construction of the Common
Parking Area, who shall be retained by Bazaar Company, or such other
architect(s) or engineer(s) duly licensed to practice in the State of Nevada as
may from time to time be selected by Bazaar Company and approved by Xxxxxxx
Xxxxxx (which approval shall not be unreasonably withheld and shall be deemed
granted if not denied within fifteen (15) days of a request therefor). "Project
Architect/Engineer" shall mean, with respect to architectural and engineering
matters relating to the construction of the Music Hotel, ADP/FD of Nevada, Inc.,
who shall be retained by Xxxxxxx Music, or such other architect(s) or
engineer(s) duly licensed to practice in the State of Nevada as may from time to
time be selected by Xxxxxxx Music and approved by Xxxxxxx Xxxxxx (which approval
shall not be unreasonably withheld and shall be deemed granted if not denied
within fifteen (15) days of a request therefor). "Project Architect/Engineer"
shall mean, with respect to architectural and engineering matters relating to
the Construction of the Central Energy Plant, such architect(s) or engineer(s)
duly licensed to practice in the State of Nevada selected by Energy Provider in
accordance with the Energy Provider Agreement.
Project Contractor. "Project Contractor" shall mean Fluor Xxxxxx,
Inc., the contractor to be retained by Aladdin Gaming with respect to the
Construction of the Initial Planned Floor Area of the Aladdin Improvements and a
portion of the shell of the Bazaar Improvements, and by Bazaar Company for the
balance of the Retail Facility and the Common Parking Area, or such other
contractor(s) duly licensed to practice in the State of Nevada as may from time
to time be designated by Bazaar Company with respect to the Bazaar Improvements
(provided that such other contractor is reasonably approved by Xxxxxxx Xxxxxx
within fifteen (15) days after request therefor and Xxxxxxx Xxxxxx's failure to
respond shall be deemed approval) and/or by Aladdin Gaming with respect to the
Aladdin Improvements (provided that such other contractor is reasonably approved
by Bazaar Company within fifteen (15) days after request therefor and Bazaar
Company's failure to respond shall be deemed approval). "Project Contractor"
shall mean, with respect to the Construction of the Music Hotel, such
contractor(s) duly licensed to practice in the State of Nevada as may from time
to time be designated by Aladdin Music (provided that such contractor is
reasonably approved by Xxxxxxx Xxxxxx within fifteen (15) days after request
therefor and Xxxxxxx Xxxxxx's failure to respond shall be deemed approval).
"Project Contractor" shall mean, with respect to the Construction of the Central
Energy Plant, such contractor(s) duly licensed to practice in the State of
Nevada as may from time to
19
time be designated by Energy Provider in accordance with the Energy Provider
Agreement.
Quality of Development and Planning for the Aladdin Improvements.
"Quality of Development and Planning for the Aladdin Improvements" shall mean
that the standard of quality of development for the Aladdin Improvements (as of
the First Scheduled Opening Date) shall be equal to or better than the general
quality (as of the date of this REA) of the Mirage, including but not limited to
interior finish, theming and attraction package, and standard hotel room, with a
higher percentage of suites and king parlors. Such standards are intended to
attract as a primary target the upper middle market segment, with an ambiance
equal to or better than Bally's and Mirage. Upon the First Scheduled Opening
Date, the Aladdin Hotel and Casino is intended to be one of the top five hotels
on the Las Vegas strip, taking into consideration for such purposes the hotels
existing and/or announced as of the date hereof in terms of market segment,
average daily room rate and overall ambiance and market perception. Bazaar
Company acknowledges that such standards are not intended to be a guaranty of
the economic performance of the Aladdin Improvements or the Redeveloped Aladdin
and no Party shall have any liability with respect to such economic performance.
Bazaar Company shall have reasonable approval of the Quality of Development and
Planning for the Aladdin Improvements, and in its exercise of such approval
shall take into account, among other things, the quality of vehicular traffic
and pedestrian circulation, ingress and egress, and the contractors, plans,
drawings and construction schedule relating to the foregoing. Bazaar Company's
approval of the Plans and Specifications shall be deemed approval of the Quality
of Development and Planning for the Aladdin Improvements with respect to the
Construction covered by such Plans and Specifications.
Redeveloped Aladdin. "Redeveloped Aladdin" is defined in Recital F.
Release. "Release" shall mean that a specified easement, covenant
and/or restriction under this REA, as both a Party's personal obligation and one
running with the Party's Tract, shall have been terminated with respect to
obligations accruing from and after those events described, and in the manner
set forth, in Article 11.
Released Party. "Released Party" is defined in Section 11.7(b).
20
Retail Facility. "Retail Facility" is defined in Recital G.
Second Scheduled Opening Date. "Second Scheduled Opening Date" shall
mean that date by which the Music Hotel is scheduled to be first opened for
business to the public, which shall mean that (a) all certificates of occupancy
for the Music Hotel shall have been issued by the County, and (b) all design and
construction work in the casino area of the Music Hotel has been completed and
the casino is fully operational and guest rooms are ready to be occupied by
guests. The Second Scheduled Opening Date shall in no event be later than the
later of (i) six (6) months after the First Scheduled Opening Date and (ii)
November 1, 2000.
Separate Utility Line. "Separate Utility Line" is defined in Section
2.1(d).
Site. "Site" is defined in Recital A.
Site Plans. "Site Plans" shall mean those certain drawings, plans,
specifications and criteria with respect to the development of the Redeveloped
Aladdin on the Site which are identified on Exhibit "B" attached hereto and made
a part hereof, as the same may be modified from time to time in accordance with
this REA.
Site Work. "Site Work" shall mean all Infrastructure Improvements,
as well as the installation and construction of all above-and below-ground
footings, girders, columns, braces, load-bearing walls, foundations and standard
structural support elements necessary for the construction, support, structural
integrity, enclosure and operation of Buildings and other improvements
constituting the Redeveloped Aladdin except for the Music Hotel and the Central
Energy Plant, and any replacement, substitution or modification thereof, all of
which shall be designed, installed and constructed by an Aladdin Party or
Parties, at its or their sole cost and expense, subject only to the Site Work
Contribution defined and set forth in Section 4.5 of the Site Work Agreement.
Site Work Agreement. "Site Work Agreement" is defined in Recital A.
Suit. "Suit" is defined in Article 13.
21
Termination Date. "Termination Date" shall mean the date on which
this REA shall terminate, pursuant to the terms and provisions of Article 17.
Theater for Performing Arts. "Theater for Performing Arts" shall
mean that portion of the Aladdin Improvements designated as such on the Site
Plans and the Plans and Specifications, which shall be leased to Aladdin Music
pursuant to the terms of the Theater Lease.
Theater Lease. "Theater Lease" shall mean that certain lease of the
Theater for Performing Arts to be entered into between Xxxxxxx Xxxxxx, as
xxxxxx, and Aladdin Music, as xxxxxx.
Tract. "Tract" shall initially mean the land and/or air space
comprising the Bazaar Site, the Gaming Site, the Aladdin Music Site, the Energy
Site or the Optional Improvements Site, as applicable, together with the
Buildings, Common Area and all other improvements of a Party now or hereafter
located thereon. If at any time hereafter there is a Transfer of a Tract, then
the Tract so transferred shall be deemed a separate Tract and the Person
acquiring or leasing such Tract shall be deemed a Party hereunder, subject to
the terms set forth herein; provided, however, that no parcelization or
subdivision of a Tract (other than the Commercial Subdivision), or lease or
license of space within the Redeveloped Aladdin by a Party shall alone be deemed
to create a new Tract.
Transfer; Transferor; Transferee. "Transfer" shall mean any
voluntary transaction in which a Person ("Transferor") shall sell, lease,
transfer or assign, other than for security purposes, all or substantially all
of its interest in its Tract together with all of its rights under this REA to a
Person or Persons ("Transferee") who shall expressly assume, by a duly executed
and acknowledged written instrument in recordable form served on all Parties in
accordance with Article 14, all of such Transferor's covenants, duties and
obligations under this REA. Neither the execution of space leases with Occupants
demising space in the Retail Facility, nor execution of the Parking Use
Agreement shall be deemed a Transfer by Bazaar Company.
Utility Lease. "Utility Lease" is defined in Recital E.
Utility Lines. "Utility Lines" is defined in Section 2.3(a).
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Work. "Work" is defined in Section 9.6.
ARTICLE 2
EASEMENTS
2.1 Definitions and Conditions. In this Article 2, each holder of an
interest in a Tract grants to the holder(s) of an interest in every other Tract
certain easements, subject to the terms and conditions contained herein. As used
in this Article 2, the following definitions, terms and conditions shall apply:
(a) "Grantor" shall mean the Party granting an easement in
this REA. An easement granted herein shall bind the Grantor and its successors
and assigns, together with all Persons joining in, consenting to or
subordinating to this REA, but only with respect to their respective interests
in the Grantor's Tract, or portion thereof, each of which interest or portion
shall be a servient tenement burdened with the easement, provided that where
only a portion of the Tract or interest is bound and burdened by the easement,
only that portion shall be deemed to be the servient tenement.
(b) "Grantee" shall mean the Party (and its successors and
assigns) as to the Tract, or portion thereof, that is the dominant tenement
benefitted by the easement. An easement granted in this Article 2 shall benefit
only the dominant tenement (provided that where only a portion of the Tract is
so benefitted, only that portion shall be deemed to be the dominant tenement)
and Grantee with respect to its interest therein, except Grantee may permit its
Permitees from time to time to use such easement; however, such permission shall
in no way authorize use of the easement in excess of that set forth in this REA.
(c) The word "in" with respect to an easement granted "in" a
particular Tract shall mean, as the context may require, "in," "to," "on,"
"over," "through," "across," "upon" and/or "under."
(d) "Separate Utility Line" shall mean a utility line,
connection or facility that does not constitute a Common Area Utility Line or a
Energy Provider Utility Line, or the portions thereof which extend into a
particular Tract from a particular point of delivery, installed for the sole and
exclusive use
23
and benefit of any Buildings or Tracts comprising the Redeveloped Aladdin for
the transmission of electrical power, heating, ventilation and air conditioning,
natural gas, steam, chilled water, hot water, domestic water, fire protection
water, storm drain, sanitary sewer, telephone service, cable television service,
and other telecommunication services, which lines, connections or facilities
shall be installed and maintained by the Party benefitting therefrom at such
Party's sole cost and expense.
(e) "Common Area Utility Line" shall mean a utility line,
connection or facility, or the portions thereof that extend to a particular
point of delivery to a particular Tract, installed for the common use and
benefit of all Buildings and Tracts comprising the Redeveloped Aladdin for the
transmission of domestic water, fire protection water, storm drainage and
sanitary sewage, which lines, connections or facilities Aladdin Gaming shall be
responsible for installing pursuant to the Site Work Agreement. The Common Area
Utility Lines will constitute Common Areas and will initially be as set forth on
the Site Plans and the Plans and Specifications.
(f) "Energy Provider Utility Line" shall mean a utility line,
connection or facility, or the portions thereof that extend to a particular
point of delivery to a particular Tract, installed for the common use and
benefit of all Buildings and Tracts comprising the Redeveloped Aladdin for the
transmission of chilled water, hot water and/or electricity, which lines,
connections or facilities shall be installed and maintained by Energy Provider
pursuant to (i) the Energy Lease, (ii) that certain Development Agreement
between Aladdin Gaming and Energy Provider dated as of December 3, 1997, (iii)
that certain Guaranty dated as of December 3, 1997 by Unicom Corporation to and
for the benefit of Xxxxxxx Xxxxxx, (iv) those certain Energy Service Agreements
to be entered into between Energy Provider and the other Parties and (v) that
certain Coordination Agreement to be entered into among Xxxxxxx Xxxxxx, Bazaar
Company and Aladdin Music ((i) through (v) collectively, the "Energy Provider
Agreement").
(g) All easements granted in this REA are appurtenant and not
in gross. Unless provided otherwise herein, all easements are nonexclusive,
irrevocable and shall terminate on the Termination Date. Notwithstanding
anything to the contrary contained herein, no easement shall be deemed to be
granted and/or no easement shall be permitted to be used, if or while the grant
or use of such easement, as applicable, would violate any law, statute or
regulation of the County or any other governmental authority claiming
jurisdiction over the Site.
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(h) All easements granted hereunder shall exist by virtue of
this REA, without the necessity of confirmation by any other document. Likewise,
upon the termination of any easement (in whole or in part) by expiration or
Release, the same shall be deemed to have been terminated without the necessity
of confirmation by any other document. However, at the request of any other
Party, each Party shall execute and acknowledge a document memorializing the
continued existence (including the location and any conditions thereon) or the
termination (in whole or in part) of any easement, provided each Party approves
the form and substance of such document pursuant to Article 18. Moreover, the
Parties hereby agree to cooperate with each other to terminate or modify
easements affecting the Site as of the date hereof to the extent necessary to
effect the intentions of the Parties under this REA, which cooperation shall
include, but not be limited to, the execution and recordation of documents that
implement such terminations and/or modifications.
(i) No grant of easement pursuant to this Article 2 shall
impose any greater obligation on any Party to construct or maintain its
Buildings other than as expressly provided in this REA.
(j) In its sole and absolute discretion, Grantee shall elect
whether to exercise its right to use any easement granted to it. Except for
easements granted pursuant to Sections 2.2, 2.7, 2.8, 2.11 and 2.14, prior to
Grantee's entry onto Grantor's Tract in exercise of its easement rights, Grantee
shall first obtain Grantor's consent to Xxxxxxx's proposed location, methods and
schedule for such exercise, which consent shall not be unreasonably withheld or
delayed, except as otherwise provided herein. Should Grantee elect to exercise
any such easement right, Grantee covenants to use the easement with due care so
as not to damage, injure or disturb any Person, any Party's Tract or any Party's
operation of its business and Buildings. Further, Grantee covenants to
construct, maintain, repair, operate, and restore and/or remove, at Grantee's
sole cost and expense (except as provided in Section 2.3 with respect to the
cost of Grantor relocating a utility easement), any facilities and improvements
Grantee shall have installed in Grantor's Tract in connection with such use;
provided, however, Grantee may elect at any time to discontinue its use of such
easement, in which event Grantee (i) shall remove or, at Grantor's request,
abandon all facilities and improvements previously installed in connection with
such use, (ii) shall repair any damage to Grantor's Tract in connection
therewith as required by Section 2.1(k) below and (iii) thereafter shall be
Discharged from all further duties whatsoever with respect thereto.
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(k) Grantee shall Indemnify Grantor and shall repair at
Grantee's sole cost and expense the servient tenement in connection with
Xxxxxxx's exercise of any of its easement rights. Without limiting the
foregoing, Grantee shall repair, to such condition as existed prior to Grantee's
exercise of such rights, all portions of the surface area or Buildings of the
servient tenement that Grantee or its agents may have excavated, damaged or
otherwise disturbed in exercising its easement rights.
(l) Each Party covenants and agrees that its exercise of the
easements granted herein shall not unreasonably interrupt or unreasonably
interfere with the Construction and/or business operations conducted by any
other Party at the Redeveloped Aladdin and that its exercise of the easements
granted herein shall be in a manner so as to avoid (i) causing any increase in
the cost of Construction on any other Party's Tract or any part thereof, (ii)
interfering unreasonably with any Construction Work being performed on any other
Party's Tract, or any part thereof, or (iii) interfering unreasonably with the
use, occupancy or enjoyment of any other Party's Tract, or any part thereof, by
any other Permittee. Any use of such easements by Xxxxxxx, and Xxxxxxx's
obligations in connection therewith, are subject to the provisions of Article 3
hereof.
(m) Each Party covenants and agrees that its exercise of the
right to relocate easements granted herein shall not unreasonably interrupt or
unreasonably interfere with the Construction and/or business operations
conducted by the Grantor of such easement on its Tract.
(n) Each Party reserves the right to close off such portions
of its Tract for such reasonable periods of time as may be legally necessary,
in the reasonable opinion of its attorney, to prevent the acquisition of
prescriptive rights by any Person or a dedication for a public purpose;
provided, however, that prior to closing off any such portion of its Tract, as
herein provided, such Party shall notify the other Parties of its intention so
to do and shall coordinate such closing with the other Parties so that there
shall be no unreasonable interference with the operation of the Redeveloped
Xxxxxxx.
2.2 Easement: Automobile Parking, Vehicular and Pedestrian Access;
Emergency Egress.
(a) Each Party hereto as to its ownership or leasehold
interest in its Tract, as applicable, as Grantor, hereby grants to each other
Party
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hereto as to its respective ownership or leasehold interest in its Tract, as
applicable, as Grantee, for use by Grantee and Xxxxxxx's Permittees, a
non-exclusive easement in such respective portions of the Common Area and
Perimeter Access Areas of Grantor's Tract as have been identified on the Site
Plans and the Plans and Specifications, or may be set aside, maintained and
authorized under this REA for pedestrian and vehicular ingress and egress to and
from Grantee's Tract.
(b) Bazaar Company, as to its ownership or leasehold interest
in its Tract, as applicable, as Grantor, hereby grants to each other Party
hereto as to its respective ownership or leasehold interest in its Tract, as
applicable, as Grantee, for use by Grantee and Grantee's Permittees, a
non-exclusive easement in such respective portions of the Common Parking Area of
Grantor's Tract as have been identified on the Site Plans and the Plans and
Specifications, or may be set aside, maintained and authorized under this REA
for passage and parking of vehicles. Bazaar Company, as Grantor, shall at all
times provide Grantee access to the Common Parking Area. Each Grantee's use of
the vehicular parking easement granted in this Section 2.2, and the
Construction, maintenance, operation and/or restoration of the Common Parking
Area by, and the other rights and obligations in connection therewith of, Bazaar
Company are subject to the provisions of the Parking Use Agreement.
(c) Each Party hereto shall have the non-exclusive easement to
use the exit stairways and walkways shown on the Site Plans and the Plans and
Specifications for emergency egress purposes only, provided that in the event of
construction, repair, demolition, casualty or similar circumstances one or more
alternate means of egress may be provided.
(d) Each Grantor hereby reserves the right to eject or cause
to be ejected from its Tract any Person who is not authorized, empowered or
privileged to use such Tract under this REA.
(e) Bazaar Company, as Grantor, hereby grants to Aladdin
Gaming as to its ownership interest in its Tract, as Grantee, for use by Grantee
and its employees, a non-exclusive easement in such respective portions of
Grantor's Tract as has been designated on the Site Plans and the Plans and
Specifications (and as otherwise may be, set aside, maintained and authorized
under this REA) for the pedestrian access and passage by Grantee and its
employees from the Common Parking Area through the service corridor of the
Retail Facility and to the Gaming Site.
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2.3 Easement: Utilities.
(a) Each Party hereto as to its ownership or leasehold
interest in its Tract, as applicable, as Grantor, hereby grants to each of the
other Parties hereto as to its ownership or leasehold interest in its Tract, as
applicable, as Grantee, an easement in the Common Area of Grantor's Tract and in
Buildings to the extent reflected on the Plans and Specifications for the
Initial Planned Floor Area or as may be reasonably required, for the
installation, operation, flow, passage, use, maintenance, repair, replacement,
relocation, restoration and/or removal of Separate Utility Lines, Energy
Provider Utility Lines and Common Area Utility Lines (collectively, "Utility
Lines"). All Utility Lines, whether or not installed and/or relocated pursuant
to the easements granted herein, shall be placed underground or within a
structure reasonably approved by Grantor. The location (or relocation) of all
easements granted by the Parties in this Section 2.3 shall be subject to the
prior approval of the Grantor, which approval shall not be unreasonably
withheld; provided, however, any Utility Lines shown on the Plans and
Specifications which have been approved by Bazaar Company or Aladdin Gaming, as
applicable, pursuant to the provisions of the Bazaar Lease or the Site Work
Agreement, or approved by Aladdin Gaming pursuant to the Energy Provider
Agreement, shall not require separate approval by the Grantor pursuant to the
provisions of this REA.
(b) The Grantee of any of the Separate Utility Line easements
shall be responsible as between the Grantor and Grantee thereof for the
installation, maintenance, repair, restoration, relocation and/or removal of all
such Separate Utility Lines installed pursuant to such grant. Grantee shall give
Grantor at least fifteen (15) days written notice prior to Grantee's
installation, maintenance, repair, restoration, relocation and/or removal of any
such Separate Utility Line; provided, however, in the case of an emergency,
Grantee may perform or cause to be performed any such Work (i) immediately after
giving Grantor such advance written notice as is practicable under the
circumstances, or (ii) immediately and without advance notice if the reasonably
expected delay to be incurred by giving advance notice would unreasonably
jeopardize persons or property; provided, further, however, that in the event of
emergency Work permitted to be conducted without advance notice pursuant to
clause (ii) above, Grantee shall give Grantor notice thereof as soon as
practicable thereafter. Grantee shall perform all such Work without cost or
expense to Grantor and in such a manner as to cause minimal disturbance to
Grantor's and other Person's use of the Redeveloped Aladdin as may be
practicable under the circumstances.
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(c) All Energy Provider Utility Lines shall be installed,
maintained, repaired, restored, relocated and/or removed by Energy Provider.
Energy Provider shall give the other Parties at least fifteen (15) days written
notice prior to Energy Provider's installation, maintenance, repair,
restoration, relocation and/or removal of any such Energy Provider Utility
Lines; provided, however, that in the case of an emergency, Energy Provider may
perform or cause to be performed any such Work (i) immediately after giving the
other Parties such advance written notice as is practicable under the
circumstances, or (ii) immediately and without advance notice if the reasonably
expected delay to be incurred by giving advance notice would unreasonably
jeopardize persons or property; provided, further, however, that in the event
of emergency Work permitted to be conducted without advance notice pursuant to
clause (ii) above, Energy Provider shall give the Parties notice thereof as soon
as practicable thereafter. Energy Provider shall use its reasonable efforts to
perform all such Work in such a manner as to cause minimal disturbance to the
use, operation, development and construction of the Redeveloped Aladdin as may
be practicable under the circumstances. The cost of such Work shall be payable
to Energy Provider by the other Parties pursuant to the Energy Provider
Agreement.
(d) All Common Area Utility Lines shall be initially
Constructed and installed by Xxxxxxx Xxxxxx pursuant to the Site Work Agreement.
Thereafter, all Common Area Utility Lines shall be maintained, repaired,
restored, relocated and/or removed by the Operator Party. The Operator Party
shall give the other Parties at least fifteen (15) days written notice prior to
the Operator Party's relocation, removal or, if such may result in the temporary
cessation of service, maintenance of any such Common Area Utility Lines;
provided, however, that in the case of an emergency, the Operator Party may
perform or cause to be performed any such Work (i) immediately after giving the
other Parties such advance written notice as is practicable under the
circumstances, or (ii) immediately and without advance notice if the reasonably
expected delay to be incurred by giving advance notice would unreasonably
jeopardize persons or property; provided, further, however, that in the event of
emergency Work permitted to be conducted without advance notice pursuant to
clause (ii) above, the Operator Party shall give the Parties notice thereof as
soon as practicable thereafter. The Operator Party shall use its reasonable
efforts to perform all such Work in such a manner as to cause minimal
disturbance to the use, operation, development and construction of the
Redeveloped Aladdin as may be practicable under the circumstances. The cost of
such Work shall be payable to the Operator Party by the other Parties pursuant
to the Allocable Share of Common Costs.
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(e) The Grantor of any utility easement granted under this
Section 2.3 shall have the right to relocate the same on its Tract at any time;
provided that Grantor shall give Grantee thirty (30) days prior written notice
thereof; and provided further, that such relocation (i) shall not interfere with
or diminish the utility services to Grantee, (ii) shall not reduce or
unreasonably impair the usefulness or function of such easements, (iii) shall
not be relocated other than underground or within a structure reasonably
approved by Grantee; and (iv) shall be performed at Grantor's sole cost and
expense and without cost or expense to Grantee, including any increased cost of
maintenance caused by such relocation. Notwithstanding clauses (i) and (ii)
above, temporary interferences with and diminution in such services shall be
permitted if they occur upon prior written notice and during Xxxxxxx's non-peak
business hours and Grantor promptly reimburses Grantee for all of Grantee's
direct cost, expense and loss (excluding, in the absence of Grantor's
negligence, any consequential damages) resulting from such interferences and/or
diminution in such services. Notwithstanding anything to the contrary set forth
in this Section 2.3(e), any relocation of any utility easement permitted to be
effected by a Grantor shall be subject to the reasonable approval of any
non-Grantee Party (except Energy Provider) if said relocation would have a
material and detrimental effect on such non-Grantee Party's owner ship,
construction, leasing, financing, operation or restoration of its Tract.
(f) The Grantee of any utility easement granted under this
Section 2.3 shall have the right to relocate the same on Grantor's Tract at any
time, subject to the reasonable approval of Grantor; provided that Grantee shall
give Grantor thirty (30) days prior written notice thereof; and provided
further, that such relocation (i) shall not interfere with or diminish the
utility services to Grantor, (ii) shall not reduce or unreasonably impair the
usefulness or function of Grantor easements or the business conducted by Grantor
on Grantor's Tract, (iii) shall not be relocated other than underground or
within a structure reasonably approved by Grantor; and (iv) shall be performed
at Grantee's sole cost and expense and without cost or expense to Grantor,
including any increased cost of maintenance caused by such relocation.
Notwithstanding clauses (i) and (ii) above, temporary interferences with and
diminution in utility services shall be permitted if they occur upon prior
written notice and during Xxxxxxx's non-peak business hours and Grantee promptly
reimburses Grantor for all of Grantor's direct cost, expense and loss
(excluding, in the absence of Grantee's negligence, any consequential damages)
resulting from such interferences and/or diminution in such services.
Notwithstanding anything to the contrary set forth in this Section 2.3(f), any
relocation of any utility easement permitted to be effected by a Grantee shall
be
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subject to the approval of any non-Grantee Party (except Energy Provider), in
such non-Grantee's sole and absolute discretion, if said relocation would have a
material and detrimental effect on such non-Grantee Party's ownership,
construction, leasing, financing, operation or restoration of its Tract.
2.4 Easement: Construction. Each Party hereto as to its ownership or
leasehold interest in its Tract, as applicable, as Grantor, hereby grants to
each of the other Parties hereto as to its ownership or leasehold interest in
its Tract, as applicable, as Grantee, an easement in Grantor's Tract (to the
extent reasonably necessary for the Grantee's enjoyment or preservation of
Grantee's improvements located on Grantor's Tract and in Grantor's Buildings),
for the (i) installation, Construction and/or restoration of improvements to the
Grantee's Tract and Buildings performed pursuant to this REA (including, without
limitation, for staging areas, worker parking, hoist and crane locations,
underpinnings and temporary safety closures); (ii) ingress, egress and access to
said areas to perform said Work; and (iii) use and maintenance of the following:
(a) separate or common footings, girders, columns, braces,
foundations and other standard support elements to a maximum lateral distance as
set forth in the Site Plans and the Plans and Specifications for the purpose of
supporting Building improvements of Grantee and party walls shared by Grantor
and Grantee as may be necessary for the structural integrity and enclosure of
adjacent or subjacent Buildings and any replacement, substitution or
modification thereof as permitted by this REA; provided that, at the request of
any Party, the applicable Parties shall prepare and record an agreement
specifying the exact locations of such above-ground and underground footings,
girders, columns, braces, foundations and other standard support elements, and
provided further that the manner of attachment shall be designed in accordance
with good Construction practice in the manner customary for such improvements
and so as not to impose any load on Grantor's Building in excess of the loads
contemplated in the Plans and Specifications for the Initial Planned Floor Area
approved pursuant to the provisions hereof, unless otherwise approved in writing
by Grantor and Grantee;
(b) canopies, roof and building overhangs, roof flashings,
wing walls, awnings, signs, lights and lighting devices and other similar
appurtenances, provided that all of the foregoing are attached to the Buildings
of Grantee to a maximum lateral distance as set forth in the Site Plans and the
Plans and Specifications or as otherwise consented to by Grantor, which consent
shall not be unreasonably withheld; and
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(c) electrical or similar vaults and HVAC supply or exhaust
shafts above and below the surface of such Tract, to a maximum lateral distance
as set forth in the Site Plans and the Plans and Specifications; provided,
however, the precise locations of the items described in subparagraphs (a), (b)
and (c) above must be shown in the Plans and Specifications for the Initial
Planned Floor Area and approved pursuant to the provisions hereof or must
otherwise be approved by Grantor. Upon completion of the Construction elements
referred to in subparagraphs (a), (b) and (c) above and upon request of any
Party, the Parties shall execute an agreement, in recordable form, appropriately
identifying the nature and location of each such Construction element and the
location of the easements granted in this Section 2.4, none of which shall
thereafter be changed without the prior written approval of Grantor, which
approval shall be at Grantor's sole and absolute discretion.
The Parties hereto acknowledge that it is contemplated that the
Music Hotel and the Optional Improvements, if any, will not be developed and
open to the public until after the First Scheduled Opening Date. In connection
therewith, each Party covenants and agrees that its exercise of the easements
granted under this Section 2.4 shall not unreasonably interrupt or unreasonably
interfere with the Construction and/or business operations conducted by any
other Party at the Redeveloped Aladdin, it being understood that there is likely
to be more interruption and interference during the Construction of the Music
Hotel and Optional Improvements than might otherwise occur during normal
business operations.
2.5 Easement: Maintenance of Common Structural Supports. The Grantor
of any easement in Section 2.4 covenants to Grantee that, if all or any part of
Grantor's Building is removed or destroyed and Grantor does not restore the
same, and if Grantor and Grantee shall have shared any foundations, footings,
girders, columns, braces, party walls or load-bearing walls, then Grantor shall
leave in place such structural support elements, or portions thereof not so
removed or destroyed, to the extent necessary, for adjacent, lateral, and
subjacent support and only for so long as that portion of Grantee's Building
sharing such structural support elements, as originally constructed or as
replaced under this REA, exists or is being restored. In the event Grantee shall
desire that Grantor reconstruct or restore such structural support elements, the
following provisions shall apply to Grantee's exercise of its easement under
this Section 2.5. Following any such removal or destruction, to obtain Grantor's
reasonable approval of common footings and foundations and other structural
support elements which Grantee
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desires that Grantor construct or restore, Grantee shall furnish Grantor with
all required live and dead load requirements, all column, anchor and beam
conditions and locations, and all other information Grantor shall reasonably
require with respect thereto. Upon Grantor's reasonable approval (which approval
shall be deemed granted if not denied within fifteen (15) days after Xxxxxxx's
receipt of the information set forth in the preceding sentence), Grantor shall
perform all Construction, maintenance, repair or replacement of such footings
and foundations and other structural support elements and Indemnify Grantee from
all costs associated therewith; provided, however, that if Grantor does not
perform all such Construction, maintenance, repair or replacement in a timely
and diligent manner, then Grantee may perform the same at Grantor's sole and
reasonable cost and expense if Grantee follows the self-help cure procedures set
forth in Section 9.9 hereof. Grantor shall be under no obligation to perform any
Construction, maintenance, repair or replacement of such footings and
foundations and other structural support elements, if such damage has occurred
after the termination of Grantor's restoration obligations set forth in Section
9.4 hereof; provided, however, that in such event Grantee shall have the right,
at Grantee's cost and expense, to maintain, repair or replace such footings and
foundations and other structural support elements on Grantor's Tract upon
Grantor's reasonable approval (which approval shall be deemed granted if not
denied within fifteen (15) days after Xxxxxxx's request therefor).
Notwithstanding the foregoing, in the event of damage affecting more than one
Party's Tract, and the affected Parties have each elected to restore their
respective Tracts, the provisions of Section 9.4 hereof shall control such
Parties' actions in connection with such restoration.
2.6 Easement: Exterior and Accent Lights. Each Party hereto as to
its ownership or leasehold interest in its Tract, as applicable, as Grantor,
hereby grants to each other Party hereto as to its ownership or leasehold
interest in its Tract, as applicable, as Grantee, an easement in such location
as Grantor shall reasonably approve for the (a) installation, maintenance,
repair, replacement and/or removal, at Grantee's sole cost and expense
(including the cost of electricity), of exterior and accent lights, on such
light standards and locations and at such levels of illumination as set forth on
the Site Plans and the Plans and Specifications, to highlight the exterior of
Xxxxxxx's Building, installed pursuant to this REA; and (b) ingress, egress and
access to said area to perform said Work. All such exterior and accent lighting
must be located and detailed as set forth on the Site Plans and the Plans and
Specifications for the Initial Planned Floor Area, and any exterior or accent
lights thereafter proposed to be installed by a Grantee shall be subject to
Grantor's approval, at Grantor's sole and absolute discretion, as to
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location, type and character, and must be harmonious with existing exterior and
accent lighting treatments. During Construction on Grantor's Tract in the
vicinity of the easement, any Grantee of this easement shall, upon thirty (30)
days prior written notice from Grantor, promptly remove all lights so installed
by the Grantee from the area under Construction; provided, however, upon
completion of such Construction, each Grantee shall have the right to reinstall
said lights at Grantee's cost and subject to compliance with the above
provisions.
2.7 Easement: Truck Loading Areas. Each Party, as to its ownership
or leasehold interest in its Tract, as applicable, as Grantor, hereby grants to
each other Party, as to its ownership or leasehold interest in its Tract, as
applicable, as Grantee, an easement in that portion of the Grantor's Tract that
borders those areas which have been designated on the Site Plans and the Plans
and Specifications and/or Constructed, maintained, repaired or restored for
purposes of truck dock parking, turn-around and loading/delivery areas, storage
rack areas, and truck access areas serving Grantee's Tract, if and to the extent
that Grantor's Tract borders such areas. All such truck loading areas shall be
Constructed in accordance with the requirements of this REA, the Site Work
Agreement and the Parking Use Agreement. Each Grantee's use of the easements
granted in this Section 2.7, and Grantor's rights and obligations in connection
therewith, are subject to the provisions hereof, the Parking Use Agreement and
each Party's exclusive truck loading facilities designated as such on the Site
Plans and the Plans and Specifications. The Parties hereby acknowledge that the
easements granted in this Section 2.7 are granted for the sole purpose of
permitting each Party the full use and enjoyment of said exclusive truck loading
facilities, which facilities shall be maintained by the Party entitled to the
exclusive use thereof.
2.8 Easement: Encroachments. Each Party hereto as to its ownership
or leasehold interest in its Tract, as applicable, as Grantor, hereby grants to
each other Party hereto as to its ownership or leasehold interest in its Tract,
as applicable, as Grantee, an easement for encroachments and maintenance thereof
if and to the extent that:
(a) there are minor variations from the Plans and
Specifications in the Construction of any of the Buildings occurring due
to Construction accuracy, methods and/or techniques;
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(b) there is minor settlement or shifting of any Buildings
over time so that any part of a Building encroaches upon a part of an
adjacent Tract; and
(c) there are canopies, roof and building overhangs, door
swings, signs, light standards, or other similar encroachments as
contemplated by the Plans and Specifications for the Initial Planned Floor
Area, or as may otherwise be approved by Grantor, together with their
replacements as such replacements may be reasonably modified.
Such easement for the maintenance of encroachments shall exist, as to a
particular encroachment, only so long as the encroaching portion of the Building
shall remain standing and in existence. Notwithstanding the foregoing, in no
event shall an easement for any encroachment be created or maintained in favor
of one Tract if such encroachment materially and adversely interferes with the
use, operation and enjoyment of another Tract by its Occupants or Permitees.
Nothing contained herein shall in any manner be construed as diminishing, or be
deemed to constitute a waiver of, any rights of a Grantor resulting from a
Grantee's failure to construct its Buildings within its respective Tract in
strict accordance with the Plans and Specifications therefor, and this
encroachment easement shall not relieve or excuse a Grantee from exercising all
due diligence to Construct its Buildings within the boundaries of such Grantee's
Tract.
2.9 Easement: Roof. Each Party as to its ownership or leasehold
interest in its Tract, as applicable, as Grantor, hereby grants to each other
Party (except Energy Provider) as to its ownership or leasehold interest in its
Tract, as applicable, as Grantee, an easement for the usage of any of Grantor's
roof space for the Construction, maintenance, repair, replacement and/or
removal, at Grantee's sole cost and expense, of such telecommunication and
ventilation equipment as may be reasonably necessary or required for the benefit
of Xxxxxxx's Tract (but excluding telecommunications or other equipment
installed by third parties pursuant to a lease or license executed by Grantee),
subject to the reason able approval of Grantor (it being understood that, with
respect to visible items installed pursuant to this Section 2.9, said items must
be properly and attractively screened).
2.10 Easement: Setbacks. Each Party hereto as to its ownership or
leasehold interest in its Tract, as applicable, as Grantor, hereby grants to
each of the other Parties hereto as to its ownership or leasehold interest in
its Tract, as
35
applicable, as Grantee, an easement to the extent required by and for the
purpose of complying with any setback requirement imposed by applicable law or
private covenants, conditions and restrictions affecting the Site as of the
issuance of building permits for the Initial Planned Floor Area and the Music
Hotel. To the extent reflected on the Plans and Specifications for the Initial
Planned Floor Area, Grantor further agrees not to construct, place or otherwise
permit to be maintained any Building within such setback area in a manner which
would violate any such setback restrictions. Nothing contained herein shall
require a Grantor to relocate any Building constructed on its Tract in
compliance with such initial setback restrictions to allow for a setback
easement described herein due to changes in any applicable law or the decision
to develop the Optional Improvements.
2.11 Easement: General Integration, Maintenance and Development.
Each Party hereto as to its ownership or leasehold interest in its Tract, as
applicable, as Grantor, hereby grants to each of the other Parties hereto as to
its ownership or leasehold interest in its Tract, as applicable, as Grantee,
easements at any level above or below the ground to the extent to which such
easements may be required to comply with any provision of applicable law with
respect to ingress or egress in the event of fire or other emergency,
maintenance of Grantee's Buildings, or as otherwise may be reasonably necessary
to carry out the Construction, repair, operation, and restoration of Grantee's
Buildings; provided, however, that the location of any such additional easements
shall be governed by the provisions of Section 2.1(m) hereof pertaining to the
location or relocation of easements; and provided, further, that with respect to
any such additional easements, Grantee shall not, pursuant to Section 2.1(l)
hereof, unreasonably interrupt or unreasonably interfere with the Construction
and/or business operations conducted by Grantor on its Tract. Notwithstanding
the foregoing, no Party shall be required to grant an easement hereunder if it
is in any way adverse to that Party and the Party requesting the easement can
comply with applicable laws or accomplish its purpose in another reasonable
manner.
2.12 No Dedication of Easements. Nothing contained in this Article
2, including the grant of any or all easements hereunder, shall be deemed to
constitute a dedication of any Tract or any portion or portions thereof to the
County or any other governmental body, agency or entity or to the general
public, or be construed to create any rights in or for the benefit of any Person
not a Party, it being intended that this REA shall be strictly limited to and
for the purposes herein expressed.
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2.13 Abandonment of Easements. Subject to the requirements of
Section 2.1(j), the easements granted in Article 2 and any improvements
constructed in the exercise thereof, may be (a) abandoned by the Grantee at any
time by Xxxxxxx's notice given to Grantor (together with the written joinder in
such abandonment by the fee owner and any ground lessee of Grantee's Tract); or
(b) terminated by Grantor after the Termination Date of this REA, if not
terminated by their own terms, because the use thereof, including the use of
facilities therein, shall have ceased for a period of two (2) years and prior to
the resumption of use (i) Grantor shall have notified the then record owner of
the fee or leasehold estate constituting the dominant tenement that such
easement has been abandoned, (ii) Grantor shall have caused to be recorded in
the Recorder's Office in the County an affidavit that such abandonment has taken
place and that such notice has been properly given, and (iii) within ninety (90)
days after such notice, any such record owner shall have failed to record in
such Recorder's Office an affidavit that the Grantee has in fact used such
easement within such two (2) year period. Any Person at any time acquiring an
interest in any Tract after the first such affidavit described above has been
placed of record (provided such affidavit and recording shall have been made
after the Termination Date as provided in subsection (b) above) shall be
entitled to rely on such failure to record an affidavit of use within such
ninety (90) day period as conclusive evidence that such easement has been
abandoned and terminated.
2.14 Granting of Easements to Utility Companies.
(a) Aladdin Gaming is hereby authorized by the other Parties
hereto to convey any utility easements in the Gaming Site, the Optional
Improvements Site and the Energy Site to Energy Provider, public utility
companies or to any municipal or other similar governmental agency requesting
the execution and delivery of a written easement agreement prior to the First
Scheduled Opening Date and subject and pursuant to the terms of the Site Work
Agreement, so long as Aladdin Gaming, in the exercise of its reasonable business
judgment, determines that the granting of such easements would not have a
material adverse effect on the Parties.
(b) Bazaar Company is hereby authorized by the other Parties
hereto to convey any utility easements in the Bazaar Site to public utility
companies or to any municipal or other similar governmental agency requesting
the execution and delivery of a written easement agreement prior to the First
Scheduled Opening Date and subject and pursuant to the terms of the Site Work
Agree-
37
ment, so long as Bazaar Company, in the exercise of its reasonable business
judgment, determines that the granting of such easements would not have a
material adverse effect on the Parties.
(c) Aladdin Music is hereby authorized by the other Parties
hereto to convey any utility easements in the Aladdin Music Site to public
utility companies or to any municipal or other similar governmental agency
requesting the execution and delivery of a written easement agreement prior to
the Second Scheduled Opening Date, so long as Aladdin Music, in the exercise of
its reasonable business judgment, determines that the granting of such easements
would not have a material adverse effect on the Parties.
2.15 Easement: Monorail. Aladdin Gaming shall have the right but not
the obligation, at any time to Construct, operate, alter, maintain and/or remove
a monorail and monorail stop to carry pedestrians and Permittees to and from the
Redeveloped Aladdin (the "Monorail") as such Monorail may be permitted by the
authorities of the County. In the event that Aladdin Gaming Constructs the
Monorail, Aladdin Gaming shall use commercially reasonable efforts (at no
significant cost to Aladdin Gaming) to provide a Monorail stop that provides
access into the Music Hotel. Subject to the other provisions of this Article 2,
each Party as to its ownership or leasehold interest in its Tract, as
applicable, as Grantor, hereby grants to Aladdin Gaming as to its ownership or
leasehold interest in its Tract, as applicable, as Grantee, an easement in
Grantor's Tract, for the Construction, operation, maintenance and removal of
such Monorail which may have supports located on a portion of the Gaming Site,
the Bazaar Site and/or the Music Site. The Monorail shall be deemed to be a part
of the Common Area and the costs of the Construction, operation and maintenance
thereof shall be subject to an equitable allocation among the Parties as
mutually approved by the Parties.
2.16 Easement: Signs.
(a) Each Party as to its ownership or leasehold interest in
its Tract, as applicable, as Grantor, hereby grants to each other Party (except
Energy Provider) as to its ownership or leasehold interest in its Tract, as
applicable, as Grantee, an easement for signs and posters advertising the
Aladdin Hotel and Casino, the Retail Facility, the Music Hotel or events in any
of the foregoing at such locations as are then used for such posters or
advertising and at the locations designated for same on the Site Plans and the
Plans and Specifications, subject to the reasonable approval of Grantor.
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(b) Xxxxxxx Xxxxxx, Bazaar Company and Aladdin Music shall be
entitled to have their respective Names on signs designating the Aladdin Hotel
and Casino, the Retail Facility and the Music Hotel, respectively, over certain
doors, gates and at certain other locations on each other Party's Tract, subject
to the approval of the Plans and Specifications for such signage, as set forth
in Section 3.1 hereof. The location and approximate size of all signs referred
to in this clause are designated on the Site Plans and the Plans and
Specifications.
(c) Xxxxxxx Xxxxxx, Bazaar Company and Aladdin Music shall be
entitled to have their respective Names on signs designating the Aladdin Hotel
and Casino, the Retail Facility and the Music Hotel, respectively, at certain
locations in the Common Areas, subject to the approval of the Plans and
Specifications for such signage, as set forth in Section 3.1 hereof. The
location and approximate size of all signs referred to in this clause are
designated on the Site Plans and the Plans and Specifications.
(d) Each Party which erects signs and posters pursuant to this
Section 2.16 shall maintain such signs and posters in good condition and repair
and the erection, maintenance and repair thereof shall be performed at such
Party's sole cost and expense.
ARTICLE 3
CONSTRUCTION OF REDEVELOPED ALADDIN
3.1 General Covenants and Background. The Parties agree that the
Construction of the Aladdin Improvements, the Bazaar Improvements, the Music
Hotel, the Central Energy Plant and any Optional Improvements shall be
accomplished in accordance with the requirements of the Site Work Agreement and
this REA, as applicable. As used in this REA, "Construction" means initially
installing or constructing upon, performing maintenance upon, making repairs to,
constructing alterations, additions and improvements, and/or razing, replacing
and restoring the whole or any part of the Buildings in accordance with the
provisions of this REA. All references to the Plans and Specifications refer to
those plans and specifications which have been attached hereto as Exhibit C, as
the same may be modified from time to time, pursuant to the procedures
hereinafter described. Any changes to the Plans and Specifications requested by
a Party which involve physical changes to another Party's Tract (except Energy
Provider's), other than
39
de minimis changes which have no adverse effect, must be consented to by such
other Party(ies), in their sole discretion. For the purposes of this Section
3.1, "adverse effect" means a materially detrimental effect on the ownership,
construction, leasing, financing, operation or restoration of a Party's Tract
or improvements thereon. Any changes to the Plans and Specifications requested
by a Party which have a direct adverse effect on (a) another Party's Tract
(except Energy Provider's), (b) the Site Work, (c) the Common Areas, or (d) the
Quality of Development and Planning for the Redeveloped Aladdin, shall be
subject to the reasonable approval of the non-requesting Party(ies) (except
Energy Provider), which approval shall be deemed granted if not denied within
ten (10) business days following a request therefor. Any changes to the Plans
and Specifications requested by a Party which do not have a direct adverse
effect on those items enumerated in clauses (a) through (d) above, but which are
material and substantial in nature, are subject to the reasonable approval of
the non-requesting Party(ies) (except Energy Providers), which approval shall be
deemed granted if not denied within ten (10) business days following a request
therefor. Any changes to the Plans and Specifications requested by a Party which
involve physical changes to any Tract other than to the Gaming Site, other than
de minimis changes which have no adverse effect, shall be subject to the
reasonable approval of Aladdin Gaming, which approval shall be deemed granted if
not denied within ten (10) business days following a request therefor. The
approval rights of Xxxxxxx Xxxxxx set forth in this paragraph shall be effective
at such time as Aladdin Bazaar Holdings, LLC is not an Affiliate (disregarding
for the purposes of this Section 3.1 the second sentence of the definition of
the term "Affiliate") of Xxxxxxx Xxxxxx.
Within ten (10) business days after the submission of such Plans and
Specifications, the Party affected by such Construction, if and to the extent
any approval is applicable as set forth herein, shall notify the constructing
Party whether the same are approved or disapproved in accordance with Article
18, specifying the reason therefor if disapproved. If such Party shall
disapprove the modified Plans and Specifications, such Parties shall attempt to
resolve any disagreements by consulting with each other and their respective
architects, engineers or consultants as soon as reasonably possible, and if such
Parties are unable to resolve any such disagreements, any Party to the
disagreement may elect to resolve the disagreement by arbitration pursuant to
the expedited arbitration procedure set forth in the Site Work Agreement if such
Work is to be performed prior to the Second Scheduled Opening Date and otherwise
pursuant to the procedure set forth in Article 12 hereof.
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The failure of any Party to exercise its approval rights within the
time periods set forth in this Section 3.1 shall be deemed approval with respect
to the Plans and Specifications theretofore submitted.
3.2 Workmanship. Each Party agrees that all Construction to be
performed hereunder by such Party during the term of this REA shall be done in a
good and workmanlike manner and in accordance with good construction practice,
with new, first-class materials and in compliance with all applicable laws,
rules, ordinances, regulations, orders, requirements of all federal, state and
municipal governments and all licenses, approvals, permits, variances,
entitlements and certificates of occupancy and in substantial compliance with
the Plans and Specifications for the same which have been approved by the other
Party to the extent required by Section 3.1 above. Subject to the Site Work
Agreement, each Party shall pay all costs, expenses, liabilities and liens
arising out of or in any way connected with its Construction, including without
limitation all costs to repair any Buildings or property of the other Party
damaged as a result of such Construction. Upon demand, each Party shall deliver
to the other Party copies of those items submitted to such Party's Mortgagee
evidencing (i) completion of such Party's Work hereunder in compliance with the
approved Plans and Specifications for such Party's Buildings, if applicable, and
all applicable laws, ordinances, regulations and rules, and (ii) payment of all
costs, expenses, liabilities and liens arising out of or in any way connected
with such Construction and (iii) discharge of all liens of record, or contested
and bonded, in which event any judgment or other process issued in such contest
shall be paid and discharged before execution thereof. Nothing contained herein
shall be deemed to prohibit a lien created by a Mortgage on a Tract.
3.3 Coordination. Each Party shall use all reasonable efforts to
cause its Project Architect/Engineer and Project Contractor to cooperate and
coordinate such Party's Construction with the Project Architect/Engineers and
Project Contractors and Construction of the other Parties to the extent
reasonably practicable in order to achieve the objectives set forth in Sections
3.1 and 3.2.
3.4 Interference During Construction. Each Party agrees to perform
its respective Work (and to cause such Party's Permittees to perform such Work)
in a manner so as to avoid (a) causing any increase in the cost of Construction
on any other Party's Tract or any part thereof, (b) interfering unreasonably
with any Work being performed on any other Party's Tract, or any part thereof,
or (c) interfering unreasonably with the use, occupancy or enjoyment of any
other
41
Party's Tract, or any part thereof, by any other Permittee. In furtherance of
the obligation set forth in clause (c) of the preceding sentence, the
constructing Party and/its Permittees shall exercise commercially reasonable
efforts to (i) minimize the amount of dust caused by its Construction
activities, (ii) utilize secondary access routes for all deliveries of
Construction equipment and supplies to minimize disruption to the other Parties'
business operations and (iii) to the extent deliveries of Construction equipment
and supplies are not able to be made on secondary access routes, to the extent
feasible, schedule such deliveries at non-peak business hours and days to
minimize disruption to the other Parties' business operations.
3.5 Optional Improvements and Music Hotel. (A) If and when Xxxxxxx
Xxxxxx elects to Construct any of the Optional Improvements, and before Aladdin
Music begins to Construct the Music Hotel, the Constructing Party shall so
notify the other Parties (except Energy Provider), which notification shall be
accompanied by such program requirements and conceptual plans and drawings as
the Constructing Party may have prepared at such time. (B) If and to the extent
that the Construction or Optional Improvements would require physical changes to
the Bazaar Site or the Gaming Site, other than de minimis changes which have no
adverse effect (as such term is used in Section 3.1 hereof), such changes must
be approved by the Party (or Parties, other than Energy Provider) whose Tract is
so affected, in such Party's sole discretion. (C) If and to the extent that the
Construction or the Optional Improvements have a direct adverse effect on (a)
the Bazaar Site or the Gaming Site, (b) the Work at the Bazaar Site or the
Gaming Site, (c) the Common Area, or (d) the Quality of Development and Planning
for the Aladdin Improvements, such Construction shall be subject to the
reasonable approval of the affected Party or Parties (other than Energy
Provider), which approval shall be deemed granted if not denied within twenty
(20) days following a request therefor. (D) If and to the extent that the
Construction Optional Improvements would not have a direct adverse effect on
those items enumerated in clauses (a) through (d) above, but are material and
substantial in nature, the Construction shall be subject to the reasonable
approval of the other Parties (except Energy Provider), which approval shall be
deemed granted if not denied within fifteen (15) days of a request therefor. (E)
At least thirty (30) days prior to the commencement of any material Construction
of the Music Hotel or any Optional Improvements or restoration thereof by any
Party, and in addition to compliance with other relevant provisions of this REA,
such Party shall cause its Project Architect/Engineer to submit to the other
Parties the following to the extent necessary or applicable: (a) a plot plan of
the Site affected by the Music Hotel or Optional Improvements showing (i) the
Buildings, (ii) the Common Area, (iii) utility connections, (iv) contractors'
staging
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areas, (v) material and equipment storage areas, (vi) Construction shacks and
other temporary improvements, (vii) access routes which the constructing Party
agrees to require its Construction personnel to use during the course of such
Construction or reconstruction, and (viii) workmen's parking area; (b) a time
schedule in reason able detail indicating the approximate date or dates upon
which the constructing Party shall commence, continue and cease using the
affected portions of the Site for the Construction of the Music Hotel or any
Optional Improvements; and (c) any material changes to the zoning or use permits
affecting the Site. Within fifteen (15) or twenty (20) days, as applicable,
after the submission of such plans and specifications for the Music Hotel or
Optional Improvements, the Party affected by such Construction (other than
Energy Provider), shall, to the extent such approval is applicable as set forth
herein, notify the constructing Party whether the same are approved or
disapproved in accordance with Article 18, specifying the reason therefor if
disapproved. If such Party shall disapprove the plans and specifications for the
Music Hotel or the Optional Improvements, such Parties shall attempt to resolve
any disagreements by consulting with each other and their respective architects,
engineers or consultants as soon as reasonably possible, and if such Parties are
unable to resolve any such disagreements, any Party to the disagreement may
elect to resolve the disagreement by arbitration pursuant to the expedited
arbitration procedure set forth in the Site Work Agreement if such Work is to be
performed prior to the Second Scheduled Opening Date or pursuant to the
procedure set forth in Article 12 hereof. The failure of any Party to exercise
its approval rights within the time periods set forth in this Section 3.5 shall
be deemed its approval.
3.6 Xxxxxxxx's Liens. In the event any mechanic's lien is filed
against the Tract of any Party (referred to in this Section 3.6 as the "Liened
Party"), the Party who ordered or contracted for the Work or materials on
account of which the lien was filed (referred to in this Section 3.6 as the
"Contracting Party") hereby covenants for the benefit of the Liened Party either
to pay the same and have it promptly discharged of record or to take such action
as may be required reasonably and legally to object to such lien or to have such
lien removed from such Tract but in all events to have such lien discharged
prior to its foreclosure. Upon request of the Liened Party, the Contracting
Party covenants to bond against and to Indemnify the Liened Party, its
Mortgagee, and the title insurer of the Liened Party's Tract from such lien or
furnish such security as may be required by law, or by any Mortgagee of the
Liened Party, to remove, release and discharge such lien of record. For all
purposes applicable to provisions of the statutory law of the State of Nevada,
the Music Hotel, Common Parking Area, the
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Retail Facility, the Central Energy Plant and the Aladdin Improvements shall
each be deemed separate and distinct works of improvement, notwithstanding the
integration of the Buildings constituting the Redeveloped Aladdin.
3.7 Construction Bonds. If any Party is required by its Mortgagee
to obtain, or otherwise elects to require its Project Contractor to obtain,
payment and/or completion bonds in connection with the Construction of the
Initial Planned Floor Area, the Central Energy Plant, the Music Hotel or any
subsequent Optional Improvements, then such Party shall request that the other
Parties (except Energy Provider) and their respective Mortgagees (except Energy
Provider's Mortgagee) be named as additional obligees under such bonds, except
that the rights of said additional obligees shall be subordinate to the
Mortgagee's rights and the rights of the Party obtaining such bond; provided,
however, that naming such other Parties as obligees under such payment and/or
completion bonds shall be at reasonable cost to the Party obtaining such bond
and is permitted by said Party's Mortgagee.
3.8 Temporary Termination of Fire Service. In the event a Party is
to perform any Construction or repair Work, including but not limited to the
installation, modification or relocation of utility facilities pursuant to
Article 2, which shall require as an incident thereto the loss of operation of
fire service in any Party's Building, the constructing Party, as a condition
precedent to the commencement and continuation of such Construction, shall:
(a) notify the other Parties that fire service will be
temporarily terminated at least forty-eight (48) hours prior thereto, which
notice shall specify the Party is performing such Construction and the date or
dates and hours such service shall be lost;
(b) obtain the prior written consent of the Parties in whose
Building(s) such service shall be lost, which consent shall not be unreasonably
withheld;
(c) perform all such Construction during non-peak business
hours of (or such other hours as may be designated by) the Parties so affected;
44
(d) cause a fire watch to be posted and provide substitute
fire protection measures acceptable to the other Parties, at the constructing
Party's cost, during all periods when such fire service is not in operation; and
(e) comply with all requirements of County laws, codes and
regulations.
3.9 Indemnity. As to Work or materials ordered or contracted for by
or on behalf of each Party or its agents, such Party covenants to Indemnify the
other Parties and the Tracts of the other Parties from (i) claims of lien of
laborers, materialmen and others arising from such Work performed or supplies
furnished pursuant to such order or contract and (ii) all Claims arising from or
as a result of the death of, or any accident, bodily injury, loss or damage
whatsoever caused to any natural Person, or to the property of any Person, as
shall occur by reason of the performance of any Work to be constructed or caused
to be constructed by such Party.
3.10 Submittal of As-Built Plans and Record Drawings. Within ninety
(90) days after each of the First Scheduled Opening Date, the Second Scheduled
Opening Date and the completion of any Optional Improvements, as applicable,
each Party shall cause its Project Architect/Engineer to prepare as-built plans
and record drawings with respect to the Building constructed on its Tract and,
after receipt thereof, shall deliver copies of same to the other Parties for
their records.
3.11 Self-Help Cure of Construction Defaults. If Bazaar Company
fails to perform any of its Construction duties or obligations under this
Article 3 in connection with the Construction of the Common Parking Area within
sixty (60) days after the applicable milestone dates for performance as
indicated on the construction schedule for the Common Parking Area, any other
Party may at any time give a written notice to Bazaar Company, 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 Bazaar Company fails to
commence the performance of such duties within such period and diligently
prosecute the same to completion thereafter, then, in either such event, the
Party giving such notice shall have the right, upon prior written notice, to
perform same, including the right and temporary license to enter upon Bazaar
Company's Tract to perform same, and Bazaar Company shall pay, on demand, the
performing Party's reasonable costs
45
thereof, with interest computed in accordance with Section 20.9(a) hereof,
provided, however, these provisions shall be without prejudice to Bazaar
Company's right to contest the right of the other Party's performance. All Work
performed by such Party shall be performed in compliance with the Gaming Laws
and this Article 3.
ARTICLE 4
ALLOCABLE SHARES OF COMMON COSTS
4.1 Payments.
(a) Except as may be otherwise noted in this REA, the
maintenance, operation, repair and other Work required to be performed on the
Common Area (the "Common Area Work") shall be performed by the Parties
(individually, an "Operator Party" and collectively, the "Operator Parties") set
forth on Schedule "I" hereto. Each Operator Party shall submit to all other
Parties (except Energy Provider), at least thirty (30) days prior to the
commencement of every Accounting Period, the reasonably estimated annual costs
to be incurred by such Operating Party in the performance of its Common Area
Work during the next Accounting Period (the "Budget") and each Party's Allocable
Share of Common Costs with respect thereto (the "Estimated Cost Statement").
Notwithstanding the preceding sentence, each Operator Party shall submit the
applicable Budget and Estimated Cost Statement with respect to the first
Accounting Period as soon as reasonably possible following the recordation of
this REA. Bazaar Company and/or Aladdin Gaming may object to the Budget within
fifteen (15) days of its receipt thereof, in which event the objecting Party and
Operator Party shall negotiate in good faith in an attempt to reach an
agreement. Any Party (except Energy Provider) may object to the Estimated Cost
Statement within fifteen (15) days of its receipt thereof, in which event the
objecting Party and the relevant Operator Party shall negotiate in good faith to
reach an agreement. If an agreement concerning the Budget and/or the Estimated
Cost Statement is not reached within ten (10) days of an objection, then the
objection shall be subject to the arbitration procedures set forth in Article 12
hereof; provided, however, that during such arbitration each Party shall pay its
Allocable Share of Common Costs, as hereinafter provided, based upon the lesser
of (x) the actual cost of the subject Common Area Work for the previous
Accounting Period, plus ten percent (10%), or (y) the Estimated Cost Statement.
The failure of an Operator Party to timely
46
submit an Estimated Cost Statement shall not preclude the right of such Party to
collect each Party's Allocable Share of Common Costs.
(b) Each Party shall pay its Allocable Share of Common Costs
to the Operator Party on the first day of each month pursuant to the Estimated
Cost Statement. Within ninety (90) days following the end of each Accounting
Period, each Operator Party shall provide each other Party with a full, complete
and itemized separate statement (the "Annual Statement"), together with
reasonable supporting documentation, showing the actual Common Costs incurred by
such Operator Party in the performance of its Common Area Work during such
Accounting Period. The Annual Statement, and any Operator Party's books and
records in connection therewith, may upon reasonable notice be audited by an
independent accounting firm or real estate consultant retained by any Party at
its sole cost and discretion. If any Party has paid more than its Allocable
Share of Common Costs during any such Accounting Period with respect to such
Common Area Work, such Party shall receive a credit toward its next payment(s)
of its Allocable Share of Common Costs with respect to which such overpayment
occurred. If any Party has paid less than its Allocable Share of Common Costs
for such Accounting Period, then such Party shall pay the deficiency in its
Allocable Share of Common Costs to the Operator Party entitled to same within
thirty (30) days after receipt of the Annual Statement. At any time, any
Operator Party, with the reasonable approval of the other Parties, may adjust
the monthly estimated payments contained in the Estimated Cost Statement to more
closely reflect actual expenses being incurred as Common Costs in order to
reduce the magnitude of any year-end reconciliation. Any payment which is not
timely made by a Party under this Section 4.1 shall bear interest from the date
that is three (3) business days subsequent to such Party's receipt of a
delinquency notice from an Operator Party until such payment is received by the
Operator Party at the rate specified in Section 20.9 hereof. 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.
4.2 Resolution of Disputes. If a Party disagrees with an Operator
Party's year-end reconciliation of the Allocable Share of Common Costs, such
Party shall be entitled to object by written notice to such Operator Party
within thirty (30) days of receipt of the Annual Statement. If the Parties
cannot reach an agreement within thirty (30) days of such notice, the dispute
shall be resolved by arbitration pursuant to the provisions of Article 12
hereof.
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4.3 Creation of Lien and Personal Obligation for Payment of
Allocable Shares. Each Party hereby covenants for the benefit of every other
Party hereto, regardless of whether such covenant is expressed in any deed to a
Tract, that the delinquent amount of its Allocable Share of Common Costs and/or
its Allocable Share of Real Estate Taxes, together with any late charges,
Attorneys' Fees and interest due on any delinquent payment thereof, shall be a
charge upon such Party's Tract and shall be a continuing lien upon such 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 not pass to Transferees of such Party, but shall remain a
personal obligation of such previous Party and shall remain as a lien and charge
against the Tract of such previous delinquent Party. Notwithstanding the
foregoing, no Mortgagee shall be liable for the payment of liens for Allocable
Shares of Common Costs except those accruing after the Mortgagee obtains title
to the Tract encumbered by its Mortgage pursuant to an Involuntary Transfer and
liens of record prior to the recordation of the lien of such Mortgagee. Any such
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 Common
Costs. Any such Involuntary Transferee who so acquires title to the Tract shall
be liable for payment of Allocable Shares of Common Costs accruing after the
date of such Involuntary Transfer. Following any such Involuntary Transfer, the
Party owing such delinquent amount shall remain personally liable for the
payment thereof.
4.4 Adjustments to Allocable Share of Common Costs. The Common Costs
allocable to each Tract shall be subject to equitable adjustment at such time as
the Optional Improvements shall be developed by an Aladdin Party or a successor
thereof. Upon such an adjustment to the Common Costs, the Operator Parties shall
notify the other Parties of the new Allocable Share of Common Costs which shall
be payable by each Party commencing on the first day of the succeeding month,
provided such notification is delivered to each Party by the tenth day of the
then current month. If a Party disagrees with the adjustment to the Allocable
Share of Common Costs, such Party shall be entitled to object by written notice
to the Operator Parties within thirty (30) days of receipt of such adjustment.
If the Parties cannot reach an agreement within thirty (30) days of such notice,
the dispute shall be resolved by arbitration pursuant to the provisions of
Article 12 hereof.
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ARTICLE 5
CENTRAL ENERGY PLANT
5.1 Construction of Central Energy Plant. The Central Energy Plant
will be designed and Constructed to perform in accordance with the
specifications described in the Energy Provider Agreement and subject to the
provisions of this REA. All Construction of the Central Energy Plant, including
the maintenance, operation and restoration thereof, shall be performed without
contribution from any Party, except to the extent specifically provided in the
Energy Provider Agreement. Upon the expiration or termination of the Energy
Provider Agreement, Aladdin Gaming shall make the Energy Site available for the
Construction, renovation and operation of such facilities as may be necessary to
provide sufficient electricity, chilled water and hot water to each of the
Tracts. The Parties agree to cooperate in all reasonable respects to cause such
facilities to be provided for the Site, and the plans and specifications for any
such facilities and the operating agreements relating thereto shall be subject
to the reasonable approval of the Parties (other than Energy Provider), which
approval shall be deemed granted if not denied within fifteen (15) days
following the request therefor.
5.2 Purchase of Electricity, Chilled Water and Hot Water. Provided
that the Central Energy Plant provides electricity, chilled water and hot water
in accordance with the specifications and requirements described in the Energy
Provider Agreement, each Party which is the owner of a Building located on the
Site shall purchase electricity, chilled water and hot water in amounts
sufficient to service such Building(s) from Energy Provider pursuant to the
Energy Provider Agreement.
5.3 Sale of Excess Electricity, Chilled Water and Hot Water. The
sale to third parties of excess electricity, chilled water and/or hot water by
Energy Provider shall be permitted only upon the terms and conditions set forth
in the Energy Provider Agreement.
ARTICLE 6
FLOOR AREA, USE, AND OPERATION
6.1 Floor Area; First and Second Scheduled Opening Dates. Subject to
force majeure as described in Article 10 and the satisfaction of the
49
applicable conditions precedent contained in the Site Work Agreement, on or
before the First Scheduled Opening Date, Aladdin Gaming covenants that it shall
have completed Construction (as evidenced by issuance of certificates of
occupancy by the County) of that portion of the Initial Planned Floor Area of
the Aladdin Improvements that Aladdin Gaming is required to construct pursuant
to this REA. Subject to force majeure as described in Article 10 and the
satisfaction of the applicable conditions precedent contained in the Site Work
Agreement, on or before the First Scheduled Opening Date, Bazaar Company
covenants that it shall have completed Construction (as evidenced by issuance of
certificates of occupancy by the County) of the Common Parking Area and the
Retail Facility required to be constructed by Bazaar Company pursuant to this
REA. Subject to force majeure as described in Article 10, on or before the
Second Scheduled Opening Date, Aladdin Music covenants that it shall have
completed Construction (as evidenced by issuance of certificates of occupancy by
the County) of the Music Hotel required to be constructed by Aladdin Music
pursuant to this REA. On or before the Final Completion Deadline, Energy
Provider shall complete Construction of the Central Energy Plant required to be
constructed by Energy Provider pursuant to the Energy Provider Agreement.
6.2 Uses.
(a) Each portion of the Initial Planned Floor Area and the
Music Hotel shall be operated in a manner consistent with the standards of a
first-class facility, which standards shall be at least equivalent to the
standards of the Mirage (as of the date of this REA), as to the Aladdin Hotel
and Casino, the standards of Bally's (as of the date of this REA) as to the
Music Hotel, and the standards of the Forum Shops (as of the date of this REA),
as to the Retail Facility. The Parties agree that the Theater for Performing
Arts shall be used to present events which are consistent with the first-class
nature of the Redeveloped Aladdin.
(b) Bazaar Company agrees that the Retail Facility shall be
used only for retail merchandising, restaurants, services and entertainment as
are commonly found in first-class retail enclosed shopping centers and related
incidental uses, including but not limited to a management/leasing office not
exceeding eighteen thousand (18,000) square feet of Floor Area.
(c) Xxxxxxx Xxxxxx and Aladdin Music shall have the right to
lease or use portions of the Aladdin Improvements and the Music Hotel,
respectively, for retail purposes (whether or not such retail purposes would be
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competitive with Occupants of the Retail Facility), including, but not limited
to, restaurants, souvenir shops, spa facilities, and the like which are commonly
found in first-class casinos and/or first-class hotels.
(d) The Parties shall install, maintain, repair and replace
the landscaping on their respective Tracts (to the extent that said landscaping
is not part of the Common Area to be maintained by an Operator Party) as
required to keep the same in a first-class condition.
(e) The Parties shall use commercially reasonable efforts to
employ or cause to be employed sufficient security and traffic control personnel
to ensure the safety of all Permittees using the Tracts operated by such
Parties.
6.3 Limitation on Detrimental Characteristics. Notwithstanding any
other provision of this REA, no use or operation shall be made, conducted or
permitted on any part of the Site which is clearly objectionable to the
development or operation of the Retail Facility, the Music Hotel or the Aladdin
Improvements or which is inconsistent with the operation of a first-class
shopping center, hotel and casino, as described in Section 6.2(a) above.
6.4 Operation.
(a) Subject to Section 9.4 hereof, provided that Aladdin
Gaming is using commercially reasonable efforts to operate the Aladdin
Improvements, substantially similar in size to the gaming facility and hotel set
forth on the Plans and Specifications, in a first-class manner in accordance
with the provisions of Section 6.4(b) hereof, then Bazaar Company, subject to
requirements of applicable laws and regulations, shall use commercially
reasonable efforts to cause the Bazaar Improvements, substantially similar in
size to the Bazaar Improvements set forth on the Plans and Specifications. (i)
With respect to the Retail Facility and the retail tenants of the Bazaar
Improvements (A) for the three year period beginning on the First Scheduled
Opening Date, to be kept open to the general public at all times when any tenant
of the Retail Facility is open for business but in any event at such times as
the general business hours of the Forum Shops, and (B) subsequent to said three
year period, to be kept open to the general public at all times that are
industry standard for first-class mixed use casino-related shopping centers
located on Las Vegas Boulevard, and (ii) to be operated and leased as a
first-class themed entertainment center, in accordance with this REA. The common
areas within the Retail Facility (as distinguished from the Common Area)
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shall remain open 24 hours a day, seven days a week, each and every day of the
year, and shall be operated in a first-class manner consistent with the
provisions of Section 6.4(f) hereof.
(b) Subject to Section 9.4 hereof, provided that (i) the
Common Parking Area, substantially similar in size to the Common Parking Area
set forth on the Plans and Specifications, is open to the general public and
being operated in accordance with the Parking Use Agreement, and (ii) Bazaar
Company is using commercially reasonable efforts to keep the Retail Facility,
substantially similar in size as that set forth on the Plans and Specifications,
open to the public and operated and leased as a first-class themed entertainment
center in accordance with the provisions of Section 6.4(a) hereof, then Aladdin
Gaming shall use commercially reasonable efforts to cause the Aladdin
Improvements, substantially similar in size to the Aladdin Improvements set
forth on the Plans and Specifications, (x) subject to requirements of applicable
laws and regulations, and subject to practices which are industry standard for
first class mixed use shopping-center related hotels and casinos located on Las
Vegas Boulevard, to be kept open to the general public 24 hours a day, seven
days a week, each and every day of the year, and (y) to be operated as a
first-class hotel and casino, in accordance with this REA.
(c) Subject to Section 9.4 hereof, provided that (i) the
Common Parking Area, substantially similar in size to the Common Parking Area
set forth on the Plans and Specifications, is open to the general public and
being operated in accordance with the Parking Use Agreement, and (ii) Bazaar
Company is operating the Retail Facility, substantially similar in size as that
set forth on the Plans and Specifications, open to the public and operated and
leased as a first-class themed entertainment center in accordance with the
provisions of Section 6.4(a) hereof, then, as of the Second Scheduled Opening
Date, Aladdin Music shall use commercially reasonable efforts to cause the Music
Hotel, substantially similar in size to the Music Hotel set forth on the Plans
and Specifications, (x) subject to requirements of applicable laws and
regulations, and subject to practices which are industry standard for first
class mixed use shopping-center related hotels and casinos located on Las Vegas
Boulevard, to be kept open to the general public 24 hours a day, seven days a
week, each and every day of the year, and (y) to be operated as a first-class
hotel and casino, in accordance with this REA.
(d) Energy Provider shall operate the Central Energy Plant
pursuant to the Energy Provider Agreement.
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(e) In addition, regardless of whether the Parties are
operating their respective Buildings in accordance with the foregoing minimum
requirements, all Parties hereto covenant and agree for the benefit of all
Parties hereto to maintain all necessary Perimeter Access Areas to permit
Occupants and Permitees access to and enjoyment of the Buildings of any other
Party hereto which may be open for business to the general public.
(f) Subject to the provisions of this Section 6.4, all Common
Areas of the Redeveloped Aladdin and the common areas within the Retail Facility
shall be operated in a first-class manner comparable to the standards of the
Forum Shops and be "fully opened" to the public for ingress and egress at all
times 24 hours a day, seven days a week, each and every day of the year, except
that (i) such areas need not be open at any time that none of the Aladdin Hotel
and Casino, the Retail Facility and the Music Hotel is open for business, (ii)
such areas need not be open prior to the First Scheduled Opening Date, and (iii)
portions of such areas may be closed from time to time as required for repair
and maintenance provided that at all times there is reasonable ingress and
egress to each Tract of the Redeveloped Aladdin. "Fully opened" means, without
limitation, that there shall be reasonably adequate security, adequate air
conditioning, lighting and other utilities, consistent with first-class
standards; and in general that at all hours such areas shall be maintained, but
not necessarily staffed, in the same manner as when all stores are open for
business.
(g) The Parties agree that each Party (except Energy Provider)
shall have the right to sponsor and stage special events on their Tracts at the
locations designated for same on the Site Plans and the Plans and
Specifications. In the event that a Party schedules a special event in the
Theater for Performing Arts or on any public areas on level 115 (as defined in
the Plans and Specifications), such Party shall inform the other Parties (other
than Energy Provider) at least thirty (30) days prior thereto and provide each
of them with information with respect to the type of entertainment, proposed
time and location of staging, planned security arrangements and expected turnout
for the event. All such events shall be consistent with the first-class nature
of the Redeveloped Aladdin. Any disputes relating to such events shall be
resolved by arbitration pursuant to Article 12 hereof. The costs attributable to
any such special event, including security, refuse disposal and janitorial
staff, shall be at the sole cost and expense of the Party or Parties sponsoring
such event. Nothing in this Section 6.4(g) shall be construed as granting
approval rights to any Party.
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(h) Forty-five (45) days prior to any Party's exercise of its
right, if any, to cease compliance with the operational covenants set forth in
subsections 6.4(a) through 6.4(c) above, as applicable, based upon the Default
of another Party ("Cessation Right"), such non-Defaulting Party shall serve
notice of such intention upon each of the other Parties (including, but not
limited to, the Defaulting Party), which notice shall specify in reasonable
detail the circumstances of the subject Default. If the Defaulting Party fails
to Cure the Default specified in said notice, if any, or, if said Default cannot
reasonably be Cured within the aforesaid forty-five day period, the Defaulting
Party fails to diligently pursue said Cure within such period and until the
subject Default is Cured, then the non-Defaulting Party may exercise its
Cessation Right. The notice and Cure period required in this subsection 6.4(h)
is a condition precedent to any Party's exercise of its Cessation Right. Subject
to Sections 11.5 and 11.6 hereof, any Party's Cessation Right shall be
terminated upon the Cure of the Default underlying same.
6.5 Gaming Activities.
(x) Xxxxxxx Xxxxxx represents that neither Xxxxxxx Xxxxxx nor
any member thereof nor any Affiliate of Xxxxxxx Xxxxxx nor any member thereof is
unwilling or unable to file all necessary applications with the Gaming
Authorities to obtain whatever gaming licenses that may be required of such
Persons in connection with the Gaming Activities to be conducted in the Gaming
Facilities in the Aladdin Improvements. To Xxxxxxx Xxxxxx's actual knowledge, no
such Person has ever engaged in any conduct or practices which would cause such
Person to be denied any gaming license that may be required by such Person.
Without limiting the foregoing, no such Person has ever (a) been convicted of
any felony, (b) had a civil or criminal record expunged or sealed by a court
order, (c) received a pardon for any criminal offense, (d) held a privileged or
professional license in any state and had any disciplinary action taken against
him or her with respect to any such license, or (e) been refused a gaming
license or been subject to a related fining of unsuitability or been refused a
license for selling alcoholic beverages or been subject to a related finding of
unsuitability or been a participant in any group which has been denied any such
license or subject to such finding. Aladdin Gaming covenants to take all
commercially reasonable actions in order that Aladdin Gaming shall be issued all
necessary gaming licenses in order to conduct Gaming Activities in the Gaming
Facilities in the Music Hotel as soon as reasonably possible following the
recordation of this REA.
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(b) Xxxxxxx Music represents that neither Xxxxxxx Music nor
any member thereof nor any Affiliate of Aladdin Music nor any member thereof is
unwilling or unable to file all necessary applications with the Gaming
Authorities to obtain whatever gaming licenses that may be required of such
Persons in connection with the Gaming Activities to be conducted in the Gaming
Facilities in the Music Hotel. To Aladdin Music's actual knowledge, no such
Person has ever engaged in any conduct or practices which would cause such
Person to be denied any gaming license that may be required by such Person.
Without limiting the foregoing, no such Person has ever (a) been convicted of
any felony, (b) had a civil or criminal record expunged or sealed by a court
order, (c) received a pardon for any criminal offense, (d) held a privileged or
professional license in any state and had any disciplinary action taken against
him or her with respect to any such license, or (e) been refused a gaming
license or been subject to a related fining of unsuitability or been refused a
license for selling alcoholic beverages or been subject to a related finding of
unsuitability or been a participant in any group which has been denied any such
license or subject to such finding. Aladdin Music covenants to take all
commercially reasonable actions in order that Aladdin Music shall be issued all
necessary gaming licenses in order to conduct Gaming Activities in the Gaming
Facilities in the Music Hotel as soon as reason ably possible following the
recordation of this REA.
(c) No Gaming Activities or gaming devices, cashless wagering
systems or associated equipment (as such terms are defined in NRS Chapter 463)
("Gaming Equipment") shall be permitted in or on the Bazaar Site, except to the
extent that Bazaar Company agrees to permit Xxxxxxx Xxxxxx to engage in Gaming
Activities or to open a Gaming Facility therein in its sole discretion.
6.6 Commercial Subdivision; Taxes and Assessments. The Parties agree
to cooperate with each other to commercially subdivide the Site into separate
legal tracts for the Gaming Site, the Optional Improvements Site, the Bazaar
Site (with separate legal lots for each of the Retail Facility and the Common
Parking Area), the Aladdin Music Site and the Energy Site (the "Commercial
Subdivision"). Xxxxxxx Xxxxxx agrees to use commercially reasonable efforts to
pursue the Commercial Subdivision at its own cost and expense and to commence
such process as soon as reasonably practicable after the date hereof, but in any
event so as to complete the Commercial Subdivision prior to the First Scheduled
Opening Date. Until such time as the Commercial Subdivision shall be effected,
the Parties agree to pay to Xxxxxxx Xxxxxx, within thirty (30) days of a request
55
therefor (but in no event more frequently than quarterly), their respective
allocable share of the real estate taxes and assessments levied against the Site
(the "Allocable Share of Real Estate Taxes"), as such shares are set forth on
Schedule "II" hereto. The Allocable Share of Real Estate Taxes shall be
appropriately prorated with respect to the real estate tax year in which the
recordation of this REA and the Commercial Subdivision occurs. After such time
as the Commercial Subdivision is effected, each Party agrees that it will pay
before delinquency, all real estate taxes and assessments, both general and
special, which are levied or assessed against its Tract. Nothing herein
contained shall be deemed to limit the right of a Party to contest the validity
of any such taxes or assessments against its Tract by appropriate proceedings;
provided, that such contest is made in good faith at such Party's own cost, and
as long as neither title to the subject Tract, nor the rights, privileges and
easements granted herein with respect thereto would be forfeited or released as
a result of the continuing non-payment of such taxes. If a Party fails to comply
with this Section 6.6, any of the other Parties, upon giving the Defaulting
Party thirty (30) days' prior notice, may cure such failure and shall be
entitled to reimbursement from the Defaulting Party in accordance with the terms
of Section 20.9.
6.7 Adjacent Land. The Parties agree that the parcel of land located
on the northeast corner of the intersection of Las Vegas Boulevard South and
Xxxxxx Avenue (the "Adjacent Land") shall not be purchased by any Party or any
Affiliate thereof without first notifying all other Parties (except Energy
Provider). If any Party or Affiliate thereof purchases the Adjacent Land, the
Parties agree that as of such purchase (a) the Adjacent Land and the then owner
thereof shall become subject to all of the terms and conditions of this REA (b)
the Construction of any improvements thereon shall be subject terms and
conditions of Section 3.5 hereof (it being understood that all Parties (except
Energy Provider) shall have approval rights in connection with such Construction
to the same extent that Bazaar Company has approval rights over the Construction
of the Optional Improvements) and (c) the Allocable Share of Common Costs will
be equitably adjusted among the parties. If any Party performs Construction on
the Adjacent Land, such Party hereby covenants that (x) such Construction shall
be consistent with the architectural character of the Aladdin Hotel and Casino
and the Retail Facility and (y) it shall use commercially reasonable efforts (at
no significant cost to such Party) to minimize interference with the visibility
of the Music Hotel from Las Vegas Boulevard resulting therefrom.
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ARTICLE 7
COVENANTS AGAINST WASTE
7.1 Waste. Each Party covenants to the other Parties that it shall
not commit or suffer any waste or damage to, or impairment of the value of, any
Party's Tract in the use of the easements created herein or otherwise.
7.2 Hazardous Substances. Each Party covenants to the other Parties
that it shall not keep, use or store, or allow to be kept, used or stored, or
discharge in any amount, any Hazardous Substances or any other hazardous or
toxic substances on or in the Site, without the express prior written consent of
the other Parties and all insurance companies which have issued any insurance on
the Site or any portion thereof, provided, however, a Party may use Hazardous
Substances (in quantities necessary for the activities conducted) in the
business of operating each Party's Tract to the extent such use is in 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 materially violating applicable laws, endangering human
health and safety or impairing any portion of the Site. Each Party Indemnifies
the others 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 their Tract.
ARTICLE 8
INDEMNIFICATION AND INSURANCE
8.1 Indemnity. Each Party, as Indemnitor, covenants to Indemnify
the other Parties, as Indemnitees, with regard to any and all Claims arising
from such Indemnitor's operation, use or ownership of its Tract or arising from
any event occurring on its Tract or any Default under this REA; provided, how
ever, Indemnity under this Section 8.1 shall not be required if and to the
extent the Claim underlying an Indemnitee's request for indemnity is of a type
covered by "All-Risk" property damage insurance or by the insurance required to
be carried under this Article 8 and the insurance carrier accepts tender of such
Claim.
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8.2 General Liability Insurance. Throughout the term of this REA,
each Party shall maintain through the Controlled Insurance Program, or otherwise
shall cause to be maintained, in full force and effect, with a financially
responsible insurance company or companies, commercial general liability
(including public liability and property damage) insurance covering occurrences,
accidents and incidents on the Tract in which such Party has an interest, that
(a) occur during the term of this REA (regardless of when the claim is filed),
and (b) result in bodily injury, personal injury or death to any Person and/or
damage or destruction of property. Said insurance shall have a combined single
limit of liability per occurrence of not less than One Million Dollars
($1,000,000) on a primary basis and not less than One Hundred Million Dollars
($100,000,000) on an excess/umbrella basis, or such greater amounts as are
typical for similar casino-hotel projects in Las Vegas and as such Parties may
consider from time to time (but not more than once every three (3) years) and
agree upon. By endorsements, such insurance policy shall provide coverage for
liability arising from the premises, its operations, personal injury, completed
operations, broad-form property damage liability, and broad-form contractual
liability extending to the Indemnity given in Section 8.1. Each Party shall also
maintain, or cause to be maintained, motor vehicle insurance with not less than
Five Million Dollars ($5,000,000) combined single limit of liability per
occurrence, which limit such Parties shall review periodically in the same
manner as they shall review the general liability insurance coverage. In
addition to the minimum requirements set forth in this Section 8.2, Energy
Provider shall maintain the insurance coverages required pursuant to the Energy
Provider Agreement.
8.3 Property Insurance. Each Party shall maintain property damage
insurance on its improvements with coverage amounts not less than the full
replacement value thereof and as may be required by such Party's Mortgagee.
8.4 Blanket Insurance. The Parties agree that the insurance
described in this Article 8 may be provided in whole or in part through a policy
or policies covering other liabilities and locations of the Parties or their
respective Affiliates.
8.5 Controlled Insurance Program. The Parties acknowledge that
participation in the Controlled Insurance Program will not satisfy all of the
insurance obligations of the Parties hereunder.
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8.6 Mutual Release; Waiver of Subrogation. Each Party covenants that
it will, if generally available in the insurance industry, obtain for the
benefit of each such released Party a waiver of any right of subrogation which
the insurer of such Party may acquire against any such Party by virtue of the
payment of any such loss covered by such insurance. In the event any Party is by
law, statute or governmental regulation unable to obtain a waiver of the right
of subrogation for the benefit of another Party, then, during any period of time
when such waiver is unobtainable, said Party shall not have been deemed to have
released any subrogated claim of its insurance carrier against such other Party,
and during the same period of time such other Party shall be deemed not to have
released the Party who has been unable to obtain such waiver from any claims it
or its insurance carrier may assert which otherwise would have been released
pursuant to this Section.
8.7 Named Insureds. Each Party shall name the other Parties (a) as
additional named insureds on general liability insurance policies held by such
Party or such Party's contractors and (b) as an indemnitee under any indemnity
clause in such Party's contractors' general liability insurance policies, if, in
either event, such is obtainable without material additional cost to said Party.
Each Party shall, upon the written request of another Party, provide such
requesting Party with a copy of the insurance certificates evidencing the
insurance required to be maintained by such Party under this REA.
ARTICLE 9
REPAIR, MAINTENANCE, ALTERATIONS AND RESTORATION
9.1 Maintenance - Buildings. Each Party shall keep and maintain, or
cause to be kept and maintained, in good order, first-class (as defined in
Section 6.2(a) hereof, to the extent applicable) condition and repair,
reasonable wear and tear excepted, and in accordance with all applicable laws,
rules, ordinances, orders and regulations, all completed portions of such
Party's Tract. Without limiting the generality of the foregoing each Party
shall, with respect to such Party's Tract except with respect to the Common Area
in which case the Operator Party shall:
59
(a) regularly clean the floor surfaces with appropriate
finishing compounds and shall maintain them so that such surfaces remain
smooth and evenly covered with surfacing material;
(b) remove all papers, debris, filth and refuse and wash or
thoroughly sweep or vacuum surface areas;
(c) clean, repair and maintain all lighting fixtures and
relamp and reballast them as needed;
(d) subject to Sections 2.6 and 2.16 hereof, maintain or cause
to be maintained all signs, in a clean, orderly and first-class condition,
including relamping and repairing as may be required;
(e) maintain and keep in a sanitary condition public restrooms
and other common use facilities;
(f) clean, repair and maintain all mechanical systems,
vertical transportation equipment, sprinkler and fire control systems, and
mechanically actuated and manually operated doors;
(g) furnish necessary pest (including rodent) abatement
controls;
(h) subject to Section 2.1(n), keep the Perimeter Access Areas
and all other pedestrian and vehicular access areas within the Redeveloped
Aladdin open to passage to the general public; and
(i) maintain and replace landscaping as necessary to maintain
first-class condition.
9.2 Maintenance - Common Parking Area. Bazaar Company agrees that it
shall maintain the Common Parking Area in accordance with the provisions of the
Parking Use Agreement.
9.3 Alterations - Buildings and Common Area.
(a) Right to Alter. Following the date on which the
Construction of the Initial Planned Floor Area is completed with respect to the
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Gaming Site and Bazaar Site, and following the Second Scheduled Opening Date
with respect to the Aladdin Music Site, changes and alterations to each Party's
Tract shall be made subject to the following conditions: (i) any alterations
requested by a Party which involve physical changes to another Party's Tract
(other than Energy Provider's Tract), other than de minimis changes which have
no adverse effect (as defined in Section 3.1 hereof), must be approved by any
Party whose Tract is so affected, in such Party's sole discretion; (ii) any
alterations requested by a Party which have a direct adverse effect on (a)
another Party's Tract, (b) the Common Areas, or (c) the Quality of Development
and Planning for the Redeveloped Aladdin, shall be subject to the reasonable
approval of, with respect to clauses (a) and (b), the affected Party (except
Energy Provider), and with respect to clause (c), Xxxxxxx Xxxxxx and Bazaar
Company. Any alterations requested by a Party which do not have a direct adverse
effect on those items enumerated in clauses (a) through (c) above, but which are
material and substantial in nature, are subject to the reasonable approval of
any affected Party (except Energy Provider). If any affected Party (except
Energy Provider) shall disapprove any requested contemplated alterations, the
requesting and affected Parties shall attempt to resolve any disagreements by
consulting each other and their respective architects, engineers or consultants
as soon as reasonably possible, and if such Parties are unable to resolve any
such disagreements, any Party to the disagreement may elect to resolve the
disagreement by arbitration pursuant to Article 12. For the purposes of this
Section 9.3(a), the term "adverse effect" shall have the meaning for such term
set forth in Section 3.1 hereof.
(b) Right to Raze. Except as permitted by the Site Work
Agreement, no Party shall be permitted to demolish or raze any Buildings located
on its Tract in violation of the provisions of Article 6, including but not
limited to Section 6.4 thereof, except as may be necessary prior to rebuilding
the same following destruction or damage due to a casualty or condemnation
pursuant to the provisions of Section 9.4 hereof. If any Party elects to
demolish or raze any portion of its Buildings or Common Area located on its
Tract which is not required to be operated in accordance with Article 6, such
demolition shall be undertaken in a manner designed to minimize any disruption
or inconvenience to the other Parties in the operation of their business, and
thereafter that portion of the Site so leveled shall be maintained in a safe,
sightly and dust-free condition appropriately landscaped to be consistent with
the standards required in Section 3.1, until such Party which has demolished
same shall elect to rebuild on such portion of the Site. In no event shall such
demolition be undertaken in a way which would render unusable
61
any structural support easements or any of the other easements granted in
Article 2, except as may be permitted in strict accordance with the provisions
of Article 2.
(c) Right to Re-open Access. In the event that access to
and/or through the Tract of any Party is temporarily closed or impaired, the
Party responsible for creating the impaired access shall open such access or
provide alternate access to and/or through such Tract. If any Party fails to
provide adequate access, any other Party may at any time give a written notice
to the Party thus failing, setting forth the impaired access. If such access is
not re-opened within three (3) days after receipt of such notice, or if such
access cannot be reopened within such time, then if such Party fails to re-open
the access within such period and diligently prosecute the same to completion
thereafter, then, in either such event, the Party giving such notice shall have
the right, upon prior written notice, to re-open the access, 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, these provisions shall be without
prejudice to such non-performing Party to contest the right of the other Party
to re-open such access or expend such monies.
9.4 Restoration of Buildings and/or Common Area. In the event of any
casualty (which term shall include acts of God, fire, earthquake, flood,
explosion or similar occurrences) or condemnation that results in damage or
destruction to, or the taking of, less than substantially all of any Party's
Tract, whether insured or uninsured, which damage, destruction or taking occurs
during a time when such Party is required by this REA to be in operation, then
such Party shall restore, repair and/or rebuild such Tract with all due
diligence and in accordance with the Plans and Specifications therefor. All
restoration, repair and/or rebuilding shall be performed in accordance with the
applicable requirements of Article 3. If any Party desires to alter the
improvements to be so repaired or restored, such Party shall comply with the
provisions of Section 9.3(a) hereof. All costs and expenses of restoration,
repair and/or rebuilding of the Buildings, Common Area and/or other improvements
on a Party's Tract in excess of available insurance or condemnation proceeds
shall be paid by said Party; provided, however, that with respect to the Common
Parking Area, any such excess costs and expenses shall be allocated to all
Parties in accordance with each Tract's proportionate share of parking spaces
required in accordance with County laws, codes and regulations. Notwithstanding
the foregoing, the Parties (other than Energy Provider) shall not have the
obligation to restore their Tract if such
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damage or destruction occurs more than twenty-five (25) years after the Second
Scheduled Opening Date; provided, however, that if such damage or destruction
affects the Common Parking Area and occurs at any time during the term of this
REA, then the Common Parking Area shall be restored. In addition to the minimum
requirements set forth in this Section 9.4, Energy Provider shall adhere to the
restoration obligations required pursuant to the Energy Provider Agreement.
9.5 Restoration of Improvements Not Covered by Section 9.4. Aladdin
Gaming shall have no obligation to repair or restore any damage or destruction
to any improvements constituting Optional Improvements; however, the provisions
of Section 9.8 shall apply in the event a Party elects not to repair or restore
any such damaged or destroyed improvements.
9.6 Standards of Construction. A Party performing any restoration,
repair, rebuilding, maintenance, alterations, additions or improvements
(collectively called "Work") shall, to the extent applicable, strictly comply
with the standards of construction set forth in Article 3 hereof and the
following requirements:
(a) Such Work shall include leveling, paving, constructing
proper exterior walls for what previously constituted common party walls, and
creating reasonably useful entrances and exits that afford proper ingress to and
egress between and among the Retail Facility, the Common Parking Area, the
Aladdin Improvements and the Music Hotel.
(b) No Work shall be commenced unless the Party desiring to
perform the same has in each instance complied with the appropriate provisions
of this REA.
(c) If the Work is to a structure which is adjacent to a
Party's Building, then during the performance of the Work the structure being
restored, repaired and/or rebuilt shall be secured and temporarily enclosed in
order to prevent conditioned air from escaping, and upon completion shall be
physically integrated with such Party's Building.
(d) If the Work could reasonably be deemed to constitute a
hazardous condition for Permitees or detract from the attractiveness of any
Party's Buildings, then during the performance of the Work, an adequate and
attractive
63
construction barricade or other protective device shall be placed around the
structure being restored, repaired and/or rebuilt.
(e) All Work shall be performed in a good and workmanlike
manner in accordance with good construction practice, strictly conforming to and
complying with:
(i) The Plans and Specifications therefor approved to
the extent provided in Section 9.4;
(ii) All applicable requirements of laws, codes,
regulations, rules and underwriters, subject to the right of any Party to
contest the validity or application thereof at its sole cost and expense;
(iii) As applicable, the requirements of any Mortgagee
and the Plans and Specifications; and
(iv) As applicable, the provisions of Section 11.7.
(f) Except as herein provided to the contrary, all Work shall
be completed at the sole cost and expense of the Party performing the same, and
with due diligence.
9.7 Licenses for Repairs, Maintenance, Alterations and Restoration.
Each Party (hereinafter, the "Licensee") is hereby granted a temporary license
to use portions of the Common Area for the purposes of performing maintenance
upon, making repairs to, constructing alterations, additions and improvements,
and/or razing, replacing and restoring the whole or any part of the Common Area
and/or Buildings, as are permitted pursuant to this REA. Within a reasonable
time prior to commencement of Work pursuant to said license, the Licensee shall
submit to the other Parties (except Energy Provider) for their approval the
following: a plot plan of the Site affected by the Work and a time schedule
therefor, all in accordance with the provisions of Section 3.5 and the approvals
provided for therein. At all times during any Licensee's use of a portion of the
Common Area, as aforesaid, such Licensee shall comply with the applicable
requirements of this REA, and, upon cessation of such use, shall promptly
restore the portions of the Common Area so used to the same condition in which
they existed prior to the time of commencement of such use, including the
clearing of such area of all dirt, debris, equipment and Construction materials.
The Licensee
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shall also restore, at its sole cost and expense, any portions of the Site which
may have been damaged as a result of such Construction promptly upon the
occurrence of such damage and shall at all times during the period of any such
Construction keep all portions of the Site, except the portions upon which said
Construction is being performed and the portions of the Common Area being
utilized by such Party pursuant to this Section, free from and unobstructed by
any dirt, debris, equipment or Construction materials related to such
Construction. Each Licensee covenants to Indemnify each other Party with regard
to such Licensee's exercise of the license provided by this Section.
9.8 Clearing of Building Site. Whenever a Party is not obligated
hereunder to restore, repair and/or rebuild any Building that has been damaged,
destroyed or taken by any casualty or condemnation and elects not to do so, then
and in such event such Party shall raze such Building or such part thereof as
has been so damaged or destroyed in accordance with the requirements of Section
9.3(b).
9.9 Self-Help Cure of Maintenance and Restoration Defaults. If any
Party fails to perform any of its duties or obligations under this Article 9,
including but not limited to the obligations of certain Parties to maintain
certain portions of the Common Area, any other Party may at any time give a
written notice to the Defaulting 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 Defaulting Party fails to commence
the performance of such duties within such period and diligently prosecute the
same to completion thereafter, then, in either such event, the Party giving such
notice shall have the right, upon prior written notice, to perform same,
including the right and temporary license to enter upon the Defaulting Party's
Tract to perform same, and the Defaulting Party shall pay, on demand, the
performing Party's reasonable costs thereof (subject to the allocation provision
of Section 9.4 hereof), with interest computed in accordance with Section
20.9(a) hereof, provided, however, these provisions shall be without prejudice
to the Defaulting Party's right 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 the Gaming Laws and Article 3 hereof and,
notwithstanding anything herein to the contrary, shall be performed by such
Party to the extent necessary to properly operate such Party's Tract and shall
not be performed by such Party in order to effect a rebuilding or restoration of
the Building on the Defaulting Party's Tract, except a rebuilding,
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repair or restoration of the Common Parking Area following damage or partial
condemnation, which shall be permitted hereunder in the event that the Party
responsible for the maintenance and operation of the Common Parking Area (a)
fails to diligently pursue such rebuilding, repair or restoration within the
ninety (90) day period following a casualty to the Common Parking Area or (b)
fails for a period of sixty (60) days to meet milestones on the critical path of
any construction schedule in connection with such rebuilding, repair or
restoration. Notwithstanding anything hereinabove contained to the contrary, in
the event that any Party in good xxxxx xxxxx that there is an emergency
situation which threatens immediate injury to Persons or immediate damage to
property, or material interference with access to or parking for a Party's
Tract, such Party may, without the notice required above, but with such notice
as is reasonable under the circumstances, cure any such Default.
9.10 Lien. Any amount due under this Article 9 from the Defaulting
Party to the other Party shall be a lien against the Tract of the Defaulting
Party, effective upon and enforceable in accordance with Section 4.3 hereof.
9.11 Article 9 Approvals. Except as otherwise provided herein, any
approval required pursuant to this Article 9 shall be deemed granted if not
denied within thirty (30) days after the approving Party's receipt of the
requisite information and a request therefor and shall be subject to the terms
and conditions of Article 18 hereof.
ARTICLE 10
FORCE MAJEURE
10.1 Force Majeure. Except as otherwise expressly provided in this
REA to the contrary, each Party shall be Excused from its duty to perform any
covenant or obligation of this REA, except an obligation to pay any sums of
money not expressly conditioned on any Party's performance of a covenant or
obligation that has itself been Excused by this Section, in the event but only
so long as the performance of any such covenant or obligation is prevented,
delayed, retarded or hindered by any of the following: act of God, fire,
earthquake, floods, explosion, action of the elements, war, invasion,
insurrection, riot, mob violence, sabotage, inability to procure or general
shortage of labor, equipment, facilities, materials or supplies in the open
market, failure of transportation, strikes, lockouts, action of
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labor unions, condemnation, requisition, laws, orders of governmental or civil
or military or naval authorities, or any other cause, whether similar or
dissimilar to the foregoing, not within the respective control of such Party
(other than the lack of or inability to procure funds to fulfill its covenants
and obligations provided in this REA), including the timely performance by any
Party (other than such Party) of its respective obligations under the Site Work
Agreement. Notwithstanding any specific references in certain provisions of this
REA to this Section, the absence of such specific reference in any other
provision shall not be deemed to diminish the general applicability of this
Section.
10.2 Notice. In the event any Party claims Excuse from its duty to
perform any covenant or obligation set forth in this REA due to any of the
events of force majeure set forth in Section 10.1, such Party shall notify the
other Parties of the occurrence of such event of force majeure within ten (10)
days following the occurrence thereof. The provisions of Section 10.1 shall not
be effective to Excuse any Party failing to give such notice from the
performance of such covenant or obligation until such notice is given to the
other Parties; provided, however, in no event shall the giving of such notice
at any time following such ten (10) day period extend the period during which
such Party is otherwise Excused beyond any maximum Excuse periods set forth in
this REA.
ARTICLE 11
DISCHARGE AND RELEASE
11.1 Discharge on Transfer. Except as provided in Section 11.3, a
Transferor shall be Discharged from and after the effective date of the Transfer
from all of its unaccrued obligations hereunder, provided that all of the
following conditions precedent are satisfied:
(a) Transferor shall have paid all amounts due and payable to
the other Parties, and shall have performed all of its obligations accrued, as
of said effective date;
(b) Transferor shall have given the other Parties notice of
the Transfer; and
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(c) Transferor shall have delivered to each other Party a
written instrument in recordable form, duly executed and acknowledged by
Transferee, whereby Transferee shall have expressly assumed all of the
covenants, duties and obligations of Transferor under this REA from and after
said effective date.
11.2 Discharge on Involuntary Transfer; Condemnation. Subject to the
provisions of Section 11.3, an Involuntary Transferor shall be Discharged from
and after the effective date of the Involuntary Transfer from all of its
unaccrued obligations hereunder, on condition that such Involuntary Transferor
shall have paid all amounts due and payable to the other Parties by such
Involuntary Transferor, and shall have performed all of its obligations accrued,
as of said effective date. In the event of a condemnation of at least
substantially all of a Party's Tract, such Party shall be Discharged from and
after the effective date of the taking of title to or possession of such Tract,
whichever first occurs, from all of its unaccrued obligations hereunder, on
condition that such Party shall have paid all amounts due and payable to the
other Parties by such Party, and shall have performed all of its obligations
accrued, as of said effective date.
11.3 Exceptions to Discharge. Neither a Transfer nor an Involuntary
Transfer shall Discharge a Party from its initial Construction obligations under
Section 3.1. Further, neither a Transfer nor an Involuntary Transfer shall
Discharge a Transferor or Involuntary Transferor from (i) amounts due and unpaid
from such Transferor or Involuntary Transferor or (ii) accrued obligations of
such Transferor or Involuntary Transferor, in either event, as of the date of
such Transfer or Involuntary Transfer, and such Transferor or Involuntary
Transferor shall not be Released from such obligations by such Transfer or
Involuntary Transfer.
11.4 Discharge of Mortgagee. A Mortgagee that acquires title to a
Tract (or portion thereof) in an Involuntary Transfer shall subsequently be
Discharged from and after the effective date of such Mortgagee's Transfer of its
interest in said Tract provided it has performed all of its obligations that
accrued during its period of ownership, and complies with Sections 11.1 (b) and
(c).
11.5 Xxxxxxx Xxxxxx Released From Operating Covenants. Provided that
Aladdin Gaming is not then in Default under this REA, the Bazaar Lease, the Site
Work Agreement or the Parking Use Agreement, Aladdin Gaming shall be Released
from its operating covenants under Article 6 and its Tract shall
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be Released from such operating covenants if Bazaar Company shall have failed to
Cure a material Default in the performance of any of its duties under Article 6
within one hundred twenty (120) days after notice to Cure from Aladdin Gaming,
which failure shall constitute an Event of Default.
11.6 Bazaar Company Released from Operating Covenants. Provided that
Bazaar Company is not then in Default under this REA, the Bazaar Lease, the Site
Work Agreement, or the Parking Use Agreement, Bazaar Company shall be Released
from its operating covenants under Article 6 and its Tract shall be Released
from such operating covenants if Aladdin Gaming shall have failed to Cure a
material Default in the performance of any of its duties under Article 6 within
one hundred twenty (120) days after notice to Cure from Bazaar Company, which
failure shall constitute an Event of Default.
11.7 Aladdin Music Released from Operating Covenants. Provided that
Aladdin Music is not then in Default under this REA or the Music Lease, Aladdin
Music shall be Released from its operating covenants under Article 6 and its
Tract shall be Released from its operating covenants if Bazaar Company shall
have failed to Cure a material Default in the performance of any of its duties
under Article 6, within one hundred twenty (120) days after notice to Cure from
Aladdin Music, which failure shall constitute an Event of Default.
11.8 Excuse and Release From Restoration Covenants.
(a) Excuse. Each Party shall be Excused from its restoration
covenants under Article 9 for so long as any other Party is Excused from and is
not performing, or is in Default of, its restoration and/or operation covenants,
in each case to the extent that and for so long as such nonperformance of such
other Party interferes with the subject Party's ability to perform its
obligations hereunder.
(b) Release. A Party (the "Released Party") shall be Released
from its restoration covenants under Article 9 in each of the following
circumstances:
(i) The Released Party shall be Released from said
covenants if the Released Party has also been Released from its operating
covenants under Section 6.4 hereof pursuant to Sections 11.5, 11.6, or 11.7
hereof.
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(ii) The Released Party shall be Released from said
covenants if the other Parties have not Cured their respective Defaults under
said covenants after sixty (60) days notice from the Released Party.
11.9 No Waiver. A Party's Excuse, Discharge or Release, or a Party's
continued performance or operation after its Excuse, Discharge or Release or its
service of a notice of Default or a notice to Cure shall not diminish such
Excuse, Discharge or Release nor any rights of such Party under this REA,
including any claim for damages, or constitute such Party's waiver of the
effectiveness of the notice it shall have served.
ARTICLE 12
ARBITRATION
12.1 Disputes Covered. Except where a Party may grant or withhold
its consent or approval under the express provisions of this REA in its sole and
absolute discretion, any dispute between the Parties involving any approvals
hereunder, including those arising from lack of approval or disagreements over
interpretation or application of such provisions, and any other disputes
involving provisions of this REA shall be resolved by binding arbitration
conducted in the manner described in this Article 12; provided, however, that
any Party may seek prohibitory injunctive relief without first submitting the
controversy to arbitration. Prior to the Second Scheduled Opening Date, the
arbitration procedures set forth in Article VIII of the Site Work Agreement
shall control, notwithstanding the fact that all the Parties are not parties to
the Site Work Agreement.
12.2 Arbitration Procedures.
(a) A Party seeking arbitration ("Demanding Party") shall
deliver a written notice of demand to resolve dispute (the "Demand") to
the other Party to such dispute ("Non-Demanding Party"), with a copy of
the Demand delivered to all other Parties (except Energy Provider). The
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 ("Arbitrator"). Within ten (10) days after receipt
of the demand, the Non-Demanding Party against whom a demand is made
70
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.
(b) The locale of the arbitration shall be in Las Vegas,
Nevada at the offices of the American Arbitration Association or at such
other location in Las Vegas, Nevada agreed to by the parties, or if the
Parties cannot agree, at the Aladdin Hotel and Casino.
(c) 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, on the
application of the Demanding Party, a single neutral Arbitrator shall be
appointed by the Eighth Judicial District Court of the State of Nevada in
accordance with the provisions of NRS Section 38.055.
(d) 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 (the
Nevada Uniform Arbitration Act).
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(e) 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 attorney's 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 awards attorneys' fees, each Party shall
be responsible for its own attorneys' fees.
(f) To the extent possible, the arbitration hearings shall be
conducted on consecutive days, excluding Saturdays, Sundays and holidays,
until the completion of the hearings.
(g) 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.
(h) The Arbitrator shall render her/his decision(s) concerning
the substantive issue(s) in dispute in writing. The written decision shall
be sent to the Parties no later than thirty (30) days following the last
hearing date.
(i) 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.
(j) 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 the provisions of NRS Chapter 38.
(k) Upon application of a Party to the Eighth Judicial
District Court of the State of Nevada within one year of any award, the
award of the Arbitrator may be confirmed and entered as a judgment in a
court of competent jurisdiction. All arbitration conducted under this
Article 12 shall be in accordance with NRS Chapter 38 and the rules of the
American Arbitration Association situated in Las Vegas, Nevada to the
extent such rules do not conflict with the procedures herein set forth. To
the extent permitted by law, compliance with this Article 12 is a
condition
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precedent to the commencement by any Party of a judicial proceeding
arising out of any arbitratable dispute relating directly or indirectly to
this REA.
ARTICLE 13
ATTORNEYS' FEES
13.1 Prevailing Party. If any Party shall institute any action or
proceeding ("Suit"), excluding arbitration, against any other Party relating to
a breach or alleged violation of any covenant, term or obligation of this REA,
any Default, or enforcement of the provisions hereof, the Prevailing Party (as
hereinafter defined) shall be entitled to recover from the nonprevailing Party,
as part of the Prevailing Party's costs of Suit or its damages, said Prevailing
Party's reasonable Attorneys' Fees as fixed by the court. The "Prevailing Party"
shall be the Party which by law is entitled to recover its costs of Suit,
whether or not the Suit proceeds to final judgment. A Party not entitled to
recover its costs shall not recover Attorneys' Fees; provided, however, where a
Party shall have instituted and then dismissed Suit as against another Party,
without the concurrence of such other Party, such other Party shall be the
Prevailing Party. No sum for Attorneys' Fees shall be included in calculating
the amount of a judgment to determine whether a Party is the Prevailing Party
entitled to recover its costs and Attorneys' Fees. The term "Attorneys' Fees"
shall include fees of outside counsel and costs allocable to in-house counsel
(including, in each instance, fees and charges attributable to services
performed by legal assistants or other non-attorney personnel performing
services under the supervision of an attorney). The provisions of this Article
shall not apply to any action or cause of action for declaratory relief.
ARTICLE 14
NOTICES
14.1 Notices to Parties. Any notice, demand, request, consent,
approval, designation, or other communication that any Party is required or
desires to give, make or communicate to any other Party shall be given, made or
communicated in writing either by personal delivery, by facsimile or telex
transmission,
73
by reliable overnight courier, or by United States registered or certified mail,
return receipt requested with postage fully prepaid, to the following addresses:
To Xxxxxxx Xxxxxx: Aladdin Gaming, LLC
c/o Xxxxxxx Xxxxxx Properties
0000 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxx 00
Xxx Xxxxx, Xxxxxx 00000
Attention: Xx. Xxxx Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to: Xx. Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxx Properties
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
and a copy to: Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-3897
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
and a copy to: Xxxxxxx Xxxxxx
000 X. Xxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxx Xxxxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
To Bazaar Company: Aladdin Bazaar, LLC
c/o TH Bazaar Centers, Inc.
0000 Xx Xxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
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Attention: Xx. Xxxxx Xxxxxx and
Xx. Xxxxx Xxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to: Aladdin Bazaar Holdings, LLC
c/o Aladdin Management Corporation, Manager
0000 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxx 00
Xxx Xxxxx, Xxxxxx 00000
Attention: Xx. Xxxx Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
and a copy to: TH Bazaar Centers Inc.
0000 Xx Xxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000-1233
Attention: General Counsel
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
and a copy to: Allen, Matkins, Xxxx, Xxxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Xxxxx X. X. Xxxxxx, Xxx.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
and a copy to: Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-3897
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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and a copy to: Xxxxxxx Xxxxxx
000 X. Xxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxx Xxxxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
To Aladdin Music: Aladdin Music Holdings, LLC
c/o Xxxxxxx Xxxxxx Properties
0000 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxx 00
Xxx Xxxxx, Xxxxxx 00000
Attention: Xx. Xxxx Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to: Xx. Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxx Properties
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
and a copy to: Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-3897
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
and a copy to: Xxxxxxx Xxxxxx
000 X. Xxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxx Xxxxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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To Energy Provider: Northwind Aladdin, LLC
c/o Unicom Thermal Technologic, Inc.
00 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: President
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
and a copy to: Xxxxxxxx, Xxxxxx, Xxxxxxxxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Each Party may designate at any time a different or additional address for its
receipt of notices by giving at least ten (10) days' written notice of such
change of address to all other Parties.
Any notice, demand, request or other communication (except any
consent, approval or designation), including any copy, 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, on the date of
acknowledgment of receipt if by facsimile or telex (provided a hard copy of the
same is sent in another manner permitted herein within twenty-four (24) hours of
transmission), on the date shown as the delivery date on the overnight courier's
cartage copy if by overnight courier, or on the date of delivery as shown on the
return receipt if delivered by mail; 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 in
the manner provided in Article 18. Any responsive consent, approval or
designation shall be sent as provided above and shall be deemed to have been
given, made, received and communicated, as the case may be, on the date of
personal delivery, the date on which the facsimile or telex was transmitted, the
date deposited with the overnight courier, or the date the same was deposited in
the United States mail in conformity with this Section.
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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 their
Mortgagees (in accordance with Article 15) a copy of such notice; provided,
however, failing to give a copy of such notice to the other Parties (and/or
their Mortgagees) shall not affect the validity of such notice of Default nor
shall giving or failing to give such notice create any liability on the part of
the Party so declaring a Default.
ARTICLE 15
MORTGAGEE PROVISIONS
15.1 Mortgagee Notice. Any Mortgagee under a Mortgage affecting the
Tract of a Party shall be entitled to receive notice of any Default by the Party
as to such Tract, provided that such Mortgagee shall have delivered a copy of a
notice substantially in the form hereinafter contained to each Party. The form
of such notice shall be as follows:
The undersigned, whose address is __________________________________
_____________________________________ does hereby certify that it is
the "Mortgagee" (as such term is defined in the REA) of the Tract of
land described on Exhibit "A" attached hereto and made a part
hereof and being the Tract of Party ("Party") in Xxxxx County,
Nevada. In the event that any notice shall be given of the Default
of the Party as to whose Tract the Mortgage held by the undersigned
applies, a copy thereof shall be delivered to the undersigned who
shall have all rights of a Mortgagee to Cure such Default as
specified in the REA. Failure to deliver a copy of such notice to
the undersigned shall in no way affect the validity of the notice of
Default as it respects such Party, but shall make the same invalid
as it respects the Mortgagee of the undersigned, and such
Mortgagee's Cure rights shall remain undisturbed.
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Any such notice to a Mortgagee shall be given in the same manner as provided in
Article 14. In the event that any notice shall be given of the Default of a
Party and such defaulting Party has failed to Cure or commence to Cure such
Default as provided in this REA, then and in that event any such Mortgagee under
a Mortgage affecting the Tract of the Defaulting Party shall be entitled to
receive an additional notice, given in the manner provided in Article 14, that
the Defaulting Party has failed to Cure or commence to Cure such Default. Each
Mortgagee shall have thirty (30) days after receipt of said additional notice to
Cure or, if such Default cannot be Cured within thirty (30) days, to commence to
Cure any such Default and to prosecute said Cure continuously and diligently
until completed (it being understood that such period beyond said thirty (30)
days shall apply to events including, but not limited to, non-monetary Defaults
temporarily incapable of a Cure by a Mortgagee due to (a) an automatic stay or
(b) the requirement of possession); provided however, that any Default personal
to a Party shall not prejudice the rights of any Mortgagee; provided further,
however, no dispute of any nature between Mortgagees shall serve to toll or
extend said Cure period nor impose liability of any nature on any Party to
resolve such dispute in connection with accepting Cure from any particular
Mortgagee.
ARTICLE 16
AMENDMENT
16.1 Method and Effect of Amendment. The Parties agree that the
provisions of this REA may be modified or amended, in whole or in part, only by
an instrument in writing, executed and acknowledged by Bazaar Company, Xxxxxxx
Xxxxxx and Aladdin Music, and duly recorded in the Office of the Recorder in and
for the County. Any amendment or modification hereof, including any extension
and renewal hereof, whenever made, shall be superior to any and all liens, to
the same extent as if such amendment or modification had been executed
concurrently with this REA; provided that, in the event a Party (other than
Energy Provider) has a Mortgage which requires the Mortgagee's consent to any
amendment of this REA, and such Mortgagee has given notice of the existence of
such Mortgage to the other Parties to this REA in accordance with Article 15,
the Mortgagee's written consent to any proposed amendment, which consent shall
not be unreasonably withheld or delayed, must be obtained in order for such
amendment to be enforceable against and binding on such Mortgagee. Nothing
contained herein shall constitute a Party's agreement that this REA cannot be
79
effectively amended as between the Parties without the approval of a Party's
Mortgagee. If a Party's Mortgagee (other than Energy Provider's Mortgagee)
reasonably requests a modification or amendment to this REA which does not
materially increase the obligations or decrease the rights of the Parties
hereunder, the Parties agree to amend or modify this REA accordingly.
16.2 No Third Party Beneficiary. Except for the provisions of
Article 15 which are for the benefit of a Mortgagee, the provisions of this REA
are for the exclusive benefit of the Parties hereto and not for the benefit of
any third Person, nor shall this REA be deemed to have conferred any rights,
express or implied, upon any third Person. It is expressly understood and agreed
that the Parties specifically intend that no other Person (other than a
Mortgagee in accordance with Article 15) shall have any right to enforce any of
the provisions of this REA.
ARTICLE 17
TERMINATION OF REA
Except as to the easements, covenants and/or provisions of this REA
which by their terms shall or may survive such date, and except as to the
Parties' restoration obligations set forth in Section 9.4 hereof, which
obligations (except Energy Provider's and except with respect to the Common
Parking Area) shall terminate twenty-five (25) years after the Second Scheduled
Opening Date, this REA shall terminate on December 31, 2097, unless sooner
terminated by the written consent of all Parties (other than Energy Provider).
ARTICLE 18
EXERCISE OF APPROVAL RIGHTS
18.1 Wherever in this REA the approval or consent of any Party is
required, and unless a different time limit is provided in this REA (in which
event such different time limit shall control), such approval or disapproval
shall be given within twenty (20) days following the receipt of the item to be
so approved or disapproved or the same shall be conclusively deemed to have been
approved by such Party, subject to the provisions of this Article. Such
approval, or disap-
80
proval, shall be given in writing, and such approval shall not be unreasonably
withheld, unless the provisions of this REA with respect to a particular consent
or approval shall expressly provide that the same may be given or refused in the
sole and absolute judgment or discretion of such Party. Any disapproval shall
specify with particularity the reasons therefor; provided, however, that
wherever in this REA any Party is given the right to approve or disapprove in
its sole and absolute judgment or discretion, such Party may disapprove without
specifying a reason therefor and its disapproval shall not be subject to contest
in any judicial, administrative, arbitration or other proceeding.
18.2 A Party requesting approval shall send such request in a
writing setting forth the applicable time period, pursuant to Section 18.1
hereof, within which such Party must act or otherwise respond. If the time
specified in the notice is incorrectly set forth or omitted, the time limit
shall be thirty (30) days unless a longer time period is specified in this REA,
in which case the longer time period shall control. Failure to specify such time
period shall not invalidate such notice but shall instead require the action of
such Party within said thirty (30) day period or such longer period.
18.3 Any request for the consent or approval of any Party shall
refer to the proper section numbers of the REA to which the request relates,
properly state the time period permitted hereunder for approval, and state that
the document, or the facts contained therein, shall be deemed approved or
consented to by the recipient unless the recipient objects thereto within the
required time period specified in such notice. Notwithstanding anything to the
contrary contained in this REA, no recipient's approval of or consent to the
subject matter of a notice shall be deemed to have been given by its failure to
object thereto if such notice (or the accompanying cover letter) did not
properly refer to the applicable section of this REA and properly state the time
period permitted hereunder for approval.
ARTICLE 19
EFFECTIVE DATE OF REA
This REA shall not be effective until it has been executed,
acknowledged and delivered by all signatories hereto. The Parties agree that
this REA is to be recorded in the Office of the Recorder of the County. The duly
executed
81
REA shall be effective against all Persons having actual or constructive notice
thereof whether or not it has been recorded.
ARTICLE 20
MISCELLANEOUS
20.1 Breach Shall Not Defeat Mortgage. A breach of any of the
easements, conditions, covenants, or restrictions of this REA shall not defeat
or render invalid the lien of any Mortgage made in good faith and for value, but
all such easements, conditions, covenants and restrictions shall be binding upon
and effective against any Person who acquires title to said property or any
portion thereof by Involuntary Transfer.
20.2 Breach Shall Not Permit Termination. No breach of this REA
shall entitle any Party to cancel, rescind or otherwise terminate this REA, but
such limitation shall not affect, in any manner, any other right or remedies
which the Parties may have by reason of any breach of this REA.
20.3 Captions. The table of contents and the captions of the
Sections and Articles of this REA are for convenience only and shall not be
considered or referred to in resolving questions of interpretation and/or
construction.
20.4 Interpretation. Any uncertainty or ambiguity regarding the
provisions of this REA shall not be interpreted against any Party as the
draftsman of the document, but shall be resolved by application of all other
principles of law regarding interpretation of contracts.
20.5 Governing Laws and Forum. This REA 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 forum for the litigation of
any and all disputes or controversies arising out of or related to this REA, to
the extent that arbitration is not permitted for the resolution of such dispute
or arbitration as described herein, is any circuit court of the State of Nevada
or the Eighth Judicial District Court of the State of Nevada. Each of the
Parties agrees that it will not commence any action or proceeding arising out of
or relating to this REA in any court other than as specified in the preceding
sentence and that it shall not
82
challenge on grounds of forum non conveniens or any other grounds any action or
proceeding so commenced, 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 REA.
20.6 Injunctive Relief. In the event of any violation or threatened
violation by any Person of any of the terms, restrictions, covenants and
conditions of this REA, any of the Parties shall have the right to seek an
injunction of such violation or threatened violation in a court of competent
jurisdiction.
20.7 No Partnership. Neither this REA nor any acts of the Parties
(other than acts undertaken pursuant to written agreements expressly setting
forth such intention) shall be deemed or construed by the Parties to constitute
an agreement to share profits and losses or to create the relationships of
principal-agent, partnership, joint venture, or any association whatsoever
between any of the Parties.
20.8 Not a Public Dedication. Nothing in this REA shall be deemed to
be a gift to the general public, or a dedication for any public purpose
whatsoever, of any portion of the Site, it being the intention of the Parties
that this REA shall be strictly limited to and for the purposes herein
expressed.
20.9 Payment on Default.
(a) If any Party (i) is compelled or elects to pay any sum of
money or do any acts which require the payment of money by reason of any
other Party's Default or (ii) does not pay any other sum when due to any
other Party pursuant to the terms and provisions of this REA, then the
Defaulting Party shall, provided that said Party shall have been served a
written delinquency notice from the paying Party, upon demand, promptly
reimburse the paying Party all such sums together with interest thereon at
the lesser of (x) the rate of fifteen percent (15%) per annum, and (y) the
maximum rate permitted by law, compounded annually, from the date that is
three (3) business days subsequent to such Defaulting Party's receipt of
the delinquency notice from the paying Party until the date of such
reimbursement by the Defaulting Party.
(b) If the Defaulting Party shall not have made the requested
repayment within ten (10) days after demand therefor, the paying
83
Party (or Person to whom the amount is due) shall have the right to deduct
the amount thereof, together with interest as aforesaid, without liability
or forfeiture, from any sums then due or thereafter becoming due from the
paying Party to the Defaulting Party, subject, however, to Sections 4.2
and 9.9 and Article 12 hereof, if the payment amount is in dispute.
(c) A Party's deduction from any sums due or payable by it
pursuant to the provisions of this Section 20.9 shall not constitute a
Default in the payment thereof unless such Party fails to pay the amount
of such deduction (with interest thereon at the rate provided above from
the respective date of deduction) to the Defaulting Party to whom the sum
is owing within thirty (30) days after final adjudication or decision that
such amount is owing. The option given in this Section 20.9 is for the
sole protection of the paying Party (or Person to whom such sum is due)
but shall not Release the Defaulting Party from its obligation to perform
the terms, provisions, covenants and conditions of this REA which are
required to be performed by such Party, nor deprive the paying Party (or
Party to whom such sum is due) of any legal or equitable rights which it
may have by reason of such Default.
20.10 Severability. If any term, covenant, restriction or condition
contained in this REA shall, to any extent, be invalid or unenforceable, the
remainder of this REA (or the application of such term, covenant, restriction or
condition to Persons or circumstances other than those with respect to which it
is invalid or unenforceable), shall not be affected thereby and each term,
covenant, restriction and condition of this REA shall be valid and enforceable
to the fullest extent permitted by law, except those terms, covenants,
restrictions or conditions which are expressly subject to or conditioned upon
such invalid or unenforceable provisions.
20.11 Successors. The provisions of this REA shall, except as
otherwise provided herein, run with the land, both as respects benefits and
burdens created herein.
20.12 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 REA.
84
20.13 Waiver of Default. A Party's waiver of another Party's Default
must be made in writing, and no such waiver shall be implied from a Party's
failure to take any action in respect of such Default if such Default continues
or is repeated. 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. One or more waivers of any Default in the
performance of any term, covenant, restriction or condition of this REA shall
not be deemed to waive any subsequent Default. A Party's giving of its consent
or approval to any act or request of another Party shall not be deemed to waive
or render unnecessary the consenting/approving Party's consent to or approval of
any subsequent similar acts or requests.
20.14 Rights Cumulative. Except as limited by Article 12, the rights
and remedies of any Party under this REA shall be cumulative and not exclusive
of any other rights or remedies of such Party at law or in equity. A Party's
exercise of any given right or remedy shall not impair such Party's standing to
exercise any other right or remedy.
20.15 Counterparts. This REA may be executed in multiple
counterparts, each of which shall be deemed an original, and all such
counterparts taken together shall constitute one and the same instrument.
Further, this REA may be executed in triplicate originals.
20.16 Estoppel Certificates. Each Party hereby severally covenants
that upon at least twenty (20) days' prior notice from another Party, it will
issue to any prospective or existing Mortgagee or to any prospective Transferee,
an estoppel certificate stating: (a) whether the Party to whom the request has
been directed knows of any default under this REA, and if there are known
defaults, specifying the nature thereof, (b) whether to its knowledge this REA
has been assigned, modified or amended in any way (and if it has, then stating
the nature thereof; (c) that to the Party's knowledge this REA as of that date
is in full force and effect; and (d) as to such other reasonably requested
factual matters known to the Party concerning this REA. Such certificate shall
act as a waiver of any claim by the Party furnishing such certificate to the
extent such claim is based upon facts which are contrary to those asserted in
the certificate but only to the extent the claim is asserted against a bona fide
encumbrancer or purchaser for value without knowledge of facts contrary to those
contained in the certificate and who has acted in reasonable reliance upon the
certificate. Such certificate shall in no event subject the Party furnishing it
to any liability whatsoever (except for fraud),
85
notwithstanding the negligent or inadvertent failure of such Party to disclose
correct or relevant information.
20.17 Limitation on Liability. Notwithstanding anything contained in
this REA, if at any time a Party (such Party being referred to in this Section
20.17 as the "breaching Party") shall fail to perform or pay any covenant or
obligation on its part to be performed or paid hereunder or under any such other
agreement, or shall breach any warranty made hereunder, and as a consequence
thereof any other Party, or their successors and assigns, shall recover a money
judgment against the breaching Party, such judgment shall (subject to the rights
of any Mortgagee whose lien predates the attachment of such judgment) be
enforced against and satisfied out of only (i) the proceeds of sale produced
upon execution of such judgment and levy thereon against the breaching Party's
interest in its Tract and improvements thereon, (ii) the rents, issues, profits
or other income receivable from the such Tract and improvements thereon, (iii)
the consideration received by the breaching Party from the sale of all or any
part of its interest in its Tract and improvements thereon made after such
failure of performance or breach of warranty (which consideration shall be
deemed to include any assets at any time held by the breaching Party to the
extent that the value of same does not exceed the proceeds of such sale), (iv)
any insurance proceeds or condemnation award payable as the result of any
casualty to or condemnation of the breaching Party's Tract and/or improvements
thereon, and (v) any sums due or to become due from the other Party to the
breaching Party regardless of when the obligation arises, by way of set-off, and
the other Party and any other owner or holder of any claim or action against the
breaching Party shall look solely to the breaching party's Tract and
improvements thereon and to said property specified in clauses (i), (ii), (iii),
(iv) and (v) above for the payment and satisfaction of any such claim or action
and any judgment thereon. Except as set forth in the preceding sentence, the
breaching Party shall not have any personal liability for the performance or
payment of any such covenant, warranty or obligation hereunder or under any such
other agreement or upon any judgment thereon. Furthermore, none of the members
individually in the limited liability companies referred to herein as "Aladdin
Gaming", "Bazaar Company", "Aladdin Music" and "Energy Provider" shall have any
liability whatsoever for the performance or payment of any covenant, warranty or
obligation of such Party hereunder or upon any judgment thereon. No Party shall
seek specific performance of any affirmative covenant or affirmative obligation
by or against the breaching Party or any partner in the breaching Party, except
to the extent that the same can be achieved with the property and proceeds
specified in clauses (i), (ii), (iii), (iv) and (v) above. The provisions of
this Section 20.17 are
86
not intended to relieve the breaching Party from the performance of any of its
obligations hereunder, but rather to limit the breaching Party's liability as
aforesaid, and to relieve and release any partner or member of the breaching
Party from any such liability as aforesaid; nor shall any of the provisions of
this Section 20.17 be deemed to limit or otherwise affect any Party's right to
obtain injunctive relief necessary to enforce other rights specifically granted
to such Party in this REA. To the extent that (with or without recourse to the
limited remedies provided in this Section 20.17) a Party is, by virtue of the
foregoing limitations, unable to recover the full amount of any money judgment
against the Defaulting Party, the non-Defaulting Party may, for so long as such
amount (and interest thereon in accordance with Section 20.9) shall remain
unpaid, offset amounts owed by the Defaulting Party against amounts owed to the
non-Defaulting Party hereunder and/or pursuant to the Site Work Agreement and/or
the Parking Use Agreement and/or that certain subordinated debenture between
Aladdin Gaming and Bazaar Company.
20.18 Index. Wherever in this REA reference is made to a constant
dollar denomination, calculation of constant dollar equivalency shall be
adjusted every fifth Accounting Period based on the Implicit Price Deflator of
the Gross National Product of the United States (Personal Consumption
Expenditures By Major Type of Product Table), issued and published by the United
States Department of Commerce (1972=100) (the "Index"), or any successor index
thereto, appropriately adjusted. In the event that the Index is converted to a
different standard reference base or otherwise revised, the determination of the
adjustment to be made with reference to the Index shall be made with the use of
such conversion factor, formula or table for converting the Index as may be
published by the Department of Commerce or, if said Department shall not publish
the same, then with the use of such conversion factor, formula or table as may
be published by Prentice Hall, Inc., or other nationally recognized publisher of
similar statistical information as may be agreed upon by the Parties. If at any
time such index as herein recited shall not exist, the Parties shall substitute
an index or procedure that reasonably reflects and monitors consumer prices, and
the same shall be considered the "Index" hereunder and in the event the Parties
are unable to agree upon a substitute index or procedure, the matter shall be
resolved pursuant to Article 12. Notwithstanding anything to the contrary set
forth herein, the adjustments provided in this Section 20.18 shall be effective
only upon notice given by any Party (except Energy Provider) to all other
Parties not more than 120 days nor less than 30 days before the beginning of
every fifth Accounting Period, which notice shall make specific reference to
this Section 20.18.
87
20.19 Compliance With Laws. Each Party shall comply with all
applicable laws, ordinances, rules, orders and regulations of all governmental
agencies and entities respecting the use, occupancy and/or enjoyment of its
Tract and improvements thereon including, but not limited to, obtaining and
maintaining all necessary licenses, approvals and permits from all federal,
state and local authorities required for the operation of such Tract and
improvements.
20.20 Conflicts. In the case of each and every conflict or
inconsistency between the provisions of the Bazaar Lease, the Music Lease, the
Parking Use Agreement, the Site Work Agreement or the Energy Provider Agreement
and this REA, the Parties agree that the provisions of this REA shall prevail
and control. All Mortgages shall be subject and subordinate to the terms,
covenants and provisions of this REA and any amendment hereto to which the
subject Mortgagee has consented to pursuant to Section 16.1 hereof.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
88
IN WITNESS WHEREOF, this XXX has been executed by the Parties as of
the day and year first written above.
"Aladdin Gaming" ALADDIN GAMING, LLC
a Nevada limited-liability company
By: /s/ Xxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxx
Title: Secretary
"Bazaar Company" ALADDIN BAZAAR, LLC
a Delaware limited liability company
By: Aladdin Bazaar Holdings, LLC, a Nevada
limited-liability company, its member
By: Aladdin Management Corporation
Its: Manager
By: /s/ Xxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxx
Title: Treasurer
By: TH Bazaar Centers Inc., a Delaware
corporation, its member
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
"Aladdin Music" ALADDIN MUSIC HOLDINGS, LLC,
a Nevada limited-liability company
By: Aladdin Music Holdings, LLC
Its: Member
By: /s/ Xxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxx
Title: Treasurer
STATE OF New York)
) ss.
COUNTY OF New York)
On February 27, 1998, before me, Xxxx X. Xxxxxxxx, a Notary Public in and for
said state, personally appeared Xxxxxx Xxxxxxx, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the persons whose
names are subscribed to the within instrument and acknowledged to me that they
executed the same in their authorized capacities, and that by their signatures
on the instrument, the persons, or the entity upon behalf of which the persons
acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxx X. Xxxxxxxx
----------------------------
Notary Public in and for said State
STATE OF New York)
) ss.
COUNTY OF New York)
On February 27, 1998, before me, Xxxx X. Xxxxxxxx, a Notary Public in and for
said state, personally appeared Xxxxx Xxxxxx and Xxxxx Xxxxx, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the persons
whose names are subscribed to the within instrument and acknowledged to me that
they executed the same in their authorized capacities, and that by their
signatures on the instrument, the persons, or the entity upon behalf of which
the persons acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxx X. Xxxxxxxx
----------------------------
Notary Public in and for said State
STATE OF New York)
) ss.
COUNTY OF New York)
On February 27, 1998, before me, Xxxx X. Xxxxxxxx, a Notary Public in and for
said state, personally appeared Xxxxxx Xxxxxxx, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the persons whose
names are subscribed to the within instrument and acknowledged to me that they
executed the same in their authorized capacities, and that by their signatures
on the instrument, the persons, or the entity upon behalf of which the persons
acted, executed the instrument. WITNESS my hand and official seal.
/s/ Xxxx X. Xxxxxxxx
----------------------------
Notary Public in and for said State
STATE OF New York)
) ss.
COUNTY OF New York)
On February 27, 1998, before me, Xxxx X. Xxxxxxxx, a Notary Public in and for
said state, personally appeared Xxxxxx Xxxxxxx, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the persons whose
names are subscribed to the within instrument and acknowledged to me that they
executed the same in their authorized capacities, and that by their signatures
on the instrument, the persons, or the entity upon behalf of which the persons
acted, executed the instrument. WITNESS my hand and official seal.
/s/ Xxxx X. Xxxxxxxx
----------------------------
Notary Public in and for said State
EXHIBIT "A-1"
LEGAL DESCRIPTION
SITE
(Please see attached)
EXHIBIT "A-2"
LEGAL DESCRIPTION
GAMING SITE
(Please see attached)
EXHIBIT "A-3"
LEGAL DESCRIPTION
BAZAAR SITE
(Please see attached)
EXHIBIT "A-4"
LEGAL DESCRIPTION
ALADDIN MUSIC SITE
(Please see attached)
EXHIBIT "A-5"
LEGAL DESCRIPTION
UTILITY SITE
(Please see attached)
EXHIBIT "A-6"
LEGAL DESCRIPTION
OPTIONAL IMPROVEMENTS SITE
(Please see attached)
EXHIBIT "B"
SITE PLANS
(Please see attached)
EXHIBIT "C"
PLANS AND SPECIFICATIONS
(Please see attached)
SCHEDULE "I"
ALLOCABLE SHARE OF COMMON COSTS
Common Area Operator Party Allocable Share
----------- -------------- ---------------
I. Common Area Bazaar Company Bazaar Company: 25%
Utility Lines Aladdin Gaming: 75%(1)
II. Casino Perimeter Aladdin Gaming Bazaar Company: 25%
Area Aladdin Gaming: 75%(1)
II. Bazaar Perimeter Bazaar Company Bazaar Company: 25%
Area Aladdin Gaming: 75%(1)
IV. Fire Command Bazaar Company: 25%
Center [To be determined] Aladdin Gaming: 75%(1)
----------
(1) Aladdin Gaming shall have the right, but not the obligation, to assign
one-third (1/3) of its Allocable Share obligation to Aladdin Music (which
obligation Aladdin Music hereby agrees to assume), but shall not be
relieved of liability therefor.
SCHEDULE "II"
ALLOCABLE SHARE OF REAL ESTATE TAXES
Responsible Party Allocable Share(1)
----------------- ------------------
Xxxxxxx Xxxxxx 49%
Bazaar Company 35% 24% - Retail Facility
11% - Garage Parking
Music Lease 14%
Energy Provider 2%
----------
(1) Notwithstanding the Allocable Shares of Real Estate Taxes set forth
herein, it is understood and agreed that all Parties shall be directly and
personally responsible for the payment of all taxes and assessments
attributable to the improvements Constructed on and changes of ownership
regarding their respective Tracts after the date hereof.
