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LEASE AGREEMENT

Lease Agreement

LEASE AGREEMENT

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This Lease Agreement involves

BH RE LLC | PH Fee Owner LLC

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Title: LEASE AGREEMENT
Governing Law: Nevada     Date: 4/2/2007

LEASE AGREEMENT

, Parties: bh re llc , ph fee owner llc
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Exhibit 10.58

LEASE AGREEMENT

THIS LEASE AGREEMENT (the “ Lease ”) is made and entered into this 30th day of November, 2006 (the “ Effective Date ”), by and between PH Fee Owner LLC, a Delaware limited liability company (“ Landlord ”), and OpBiz, L.L.C., a Nevada limited liability company (“ Tenant ”).  Capitalized terms used herein and not otherwise defined shall have the meanings provided in the Glossary attached hereto.

RECITALS

A.            Landlord is the owner of the real property and all improvements thereon located in Clark County, Nevada (the “ Property ”), including, without limitation, the gaming areas of that certain resort hotel casino located thereon and more commonly and formerly known as the Aladdin Hotel and Casino (the “ Premises ” or the “ Hotel Casino ”), as more particularly described on Exhibit A attached hereto, less and except the Timeshare Operations Space, and all fixtures permanently attached to the realty and located therein or thereon as of the Effective Date (the “ Fixtures ” and together with the Premises, the “ Leased Assets ”)  The Leased Assets specifically exclude the Gaming Equipment, the ownership of which is and shall remain in Tenant; and

B.            Landlord desires to lease to Tenant and Tenant desires to accept, hire and lease from Landlord the Leased Assets for Tenant’s operation of the Hotel Casino, subject to the terms and conditions more particularly described herein.

AGREEMENT

1.             LEASED ASSETS.

1.1           Leased Assets .  Upon the conditions, limitations, covenants and agreements herein set forth, Landlord hereby leases to Tenant, and Tenant hereby accepts, hires and leases from Landlord the Leased Assets.   Landlord and Tenant acknowledge that the description of the Premises in Exhibit A may change from time to time as reconfigurations of the gaming areas of the Hotel Casino occur in the normal course of business.  Upon any such reconfiguration, Landlord and Tenant agree to reasonably cooperate to mutually agree upon appropriate changes to Exhibit A to reflect the reconfiguration.  Notwithstanding the foregoing, Landlord and Tenant agree that, so long as the Debt is outstanding, Tenant shall not be permitted to make any changes to Exhibit A which will materially diminish the size of the leased premises described in that certain Lease Agreement of even date herewith between Landlord and Tenant for the non-gaming areas of the Property, unless Tenant obtains the prior written consent of Lender (as defined in the Loan Agreement) which consent may be withheld in Lender’s reasonable discretion.

1.2           Future Reservations .  This Lease shall be subject to all existing and future covenants, conditions, restrictions, reservations and easements now or hereafter recorded against the Property including, without limitation, that certain Agreement and Amendment to Construction Operation and Reciprocal Easement Agreement by and between Boulevard Invest, LLC and Planet Hollywood, dated on or about July 31, 2005, and recorded in Book 20051117 as

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Instrument No. 0005802 of the Official Records of Clark County, Nevada,  concerning the Desert Passage Mall, and that certain Construction, Operation and Reciprocal Easement Agreement entered into as of February 26, 1998 by and among Aladdin Gaming, LLC, Aladdin Bazaar, LLC and Aladdin Music Holdings, LLC.

2.             TERM.

2.1           Commencement Date .  The commencement date of this Lease (the “ Commencement Date ”) shall be the date hereof.

2.2           Term .  The initial term of the Lease (the “ Initial Term ”) shall be two (2) years commencing on the Commencement Date.  Provided, however, that the Initial Term shall automatically renew for successive periods of one (1) year each for so long as the Debt is outstanding and, thereafter, for successive periods of three (3) months (each a “ Renewal Period ” and together with the Initial Term, the “ Term ”), unless, after the Debt is no longer outstanding, either party gives thirty (30) days’ written notice to the other party prior to the expiration of the then current Initial Term or Renewal Period, as the case may be, that such automatic renewal will not occur.

3.             RENT.

3.1           Rent .  Beginning on the first (1 st ) day of the month immediately following the Commencement Date and on the first (1 st ) day of each month during the Term thereafter, Tenant shall pay to Landlord, without offset or deduction, monthly base rent for the Leased Assets of One Million One Hundred Sixty-Six Thousand Six Hundred Sixty-Seven and 00/100 Dollars ($1,166,667.00) (the “ Rent ”).  In the event the Commencement Date of this Lease occurs on a day other than the first day of a calendar month, the Rent for such partial calendar month shall be a prorated portion of a full monthly installment of Rent, which shall be paid to Landlord on the Commencement Date.  In the event this Lease expires or is earlier terminated on a day other than the last day of a calendar month, the Rent for such partial calendar month shall be a prorated portion of a full monthly installment of Rent, and Tenant shall be reimbursed by Landlord for any amounts applicable to the portion of the calendar month following the expiration of the Term.

3.2           Payment .  All payments of Rent shall be payable by Tenant to Landlord in legal tender of the United States of America at the address set forth for Landlord in Section 22.2 or such other place as Landlord may, from time to time, designate in writing.

3.3           Late Charge .  If Tenant shall fail to pay Rent within five (5) days after written notice from Landlord to pay rent, then the past due rent shall bear interest at the Interest Rate (as defined below), from the due date thereof until paid.  The amount of any such interest shall be additional rent hereunder and shall be payable upon demand.  The assessment and receipt of interest as aforesaid shall be in addition to, and shall in no way be deemed to limit, any other rights and remedies Landlord may have under this Lease or otherwise for non-payment of Rent.  As used herein, “Interest Rate” shall mean an interest rate equal to the statutory rate of interest set forth in NRS 99.040 or any successor statute.

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3.4           Net Lease .  It is the purpose and intent of Landlord and Tenant that the Rent payable hereunder shall be absolutely net to Landlord so that this Lease shall yield, net to Landlord, the Rent specified herein in each month during the term of this Lease.  This is an absolutely net lease, and, except as otherwise specifically provided in Sections 2.2 and 16 hereof, this Lease shall not terminate nor shall Tenant have any right to terminate this Lease; nor shall Tenant be entitled to any abatement, deduction, deferment, suspension or reduction of, or setoff, defense or counterclaim against, any rentals, charges, or other sums payable by Tenant under this Lease.

4.             POSSESSION AND SURRENDER.

4.1           Acceptance .  Tenant shall be deemed to have accepted the Leased Assets on the date hereof.  Tenant represents to Landlord that Tenant has examined the title to and the physical condition of the Premises prior to the execution and delivery of this Lease and has found the same to be satisfactory for all purposes hereof, and Tenant accepts the title and condition of the Premises in their respective, present condition “as is, where is, with all faults”.  Landlord makes no representation or warranty with respect to the condition of the Premises or its fitness or availability for any particular use, and Landlord shall not be liable for any latent or patent defect therein.

4.2           Tenant’s Property .  Unless otherwise agreed between Landlord and Tenant, upon the expiration or earlier termination of the Term, Tenant shall surrender the Leased Assets, including, without limitation, any improvements or repairs undertaken by Tenant and any other improvements to the realty, in the same condition as on the Commencement Date, reasonable wear and tear excepted.  Any of Tenant’s Property which is not promptly removed upon the expiration or earlier termination of the Term shall be deemed abandoned by Tenant, and Tenant shall have no further right, title or interest in and to such abandoned Tenant’s Property.

5.             USE OF LEASED ASSETS.

5.1           Use of Leased Assets; and Operating Standards .  The Leased Assets are leased to Tenant solely for conducting the business of operating the Hotel Casino, so long as such use is in accordance with the Operating Standards (as defined herein).  For purposes of this Lease, “Operating Standards” mean, collectively, the standards and manner of operation for the Hotel Casino and the management of the gaming business (including any operations related or ancillary thereto) which shall be (i) substantially consistent and in accordance with prior practice and, in any event, no less than the standards and manner of operation on the date hereof in all material respects, (ii) in accordance with the requirements of the Management Agreement (as defined in the Loan Agreement), this Lease and the Loan Documents (as defined in the Loan Agreement), (iii) in accordance with Applicable Laws and (iv) in accordance with the applicable insurance policies and other reasonable business requirements of any carrier having insurance on the Property or any part thereof.

5.2           Maintenance .  Except as provided for elsewhere herein, Tenant shall keep and maintain, at Tenant’s sole cost and expense, in good order, condition and repair, reasonable wear and tear excepted.

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5.3           Non-Interference .  Tenant shall not do, permit or suffer anything to be done, or kept upon the Premises which will obstruct or interfere with the rights of Landlord.

5.4           Compliance With Easements .  The use of the Leased Assets by Tenant, its Affiliates, agents, employees, servants, contractors, licensees, customers or business invitees, shall at all times be in compliance with all material covenants, conditions and restrictions, easements, reciprocal easement agreements, and all matters presently of public record or which may hereafter be placed of public record, which affect the Leased Assets or the Property, or any part thereof.

5.5           Compliance With Laws and Loan Documents .  Tenant shall, at its sole cost and expense, comply with all Applicable Laws during the Term and affecting the Leased Assets or Tenant’s use thereof and Tenant shall not use the Leased Assets so as to create waste or constitute a nuisance or disturbance.  Furthermore, the terms of the Loan Documents, to the extent applicable, are hereby incorporated by reference and shall, as herein incorporated, survive any foreclosure of the Loan (as defined in the Loan Agreement) for the benefit of any Successor Landlord (as defined herein).

5.6           Hazardous Substances .  Tenant shall not use the Premises for the generation, storage, manufacture, production, releasing, discharge, or disposal or any Hazardous Materials or allow or suffer any other Person to do so.

5.7           Alterations .  Except as contemplated or permitted by the Loan Agreement, Tenant shall not make any structural alteration or replacement (whether interior or exterior, ordinary or extraordinary) of any nature or description to the Premises without having first obtaining Landlord’s prior written approval thereof, which consent shall not be unreasonably withheld, delayed or denied.  Tenant is authorized to make non-structural alterations, repairs and replacements without the necessity of obtaining Landlord’s written consent, but only on the condition that it provide prior notice of such work so as to afford Landlord reasonable time to file notices of nonresponsibility.

6.             GAMING EQUIPMENT/LIQUOR.

6.1           Gaming .  Tenant may, at all times during the Term, be responsible for and conduct Gaming Operations in the casino portion at the Hotel Casino (the “ Casino ”) and all activities necessary or incidental thereto, including, without limitation:

(a)           Gaming Operations .  Maintain all necessary regulatory authorizations of the Nevada Gaming Authorities;

(b)           Sports Book .  Permit the continued provision of a sports book at the Casino; and

(c)           Expenses .  Be responsible for, and bear the expense of, all accounting, marketing, advertising, special events, surveillance and maintenance associated with the Gaming Equipment and the Gaming Operations.

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6.2           Location .  The location and selection of the Gaming Equipment on the Premises shall be at the sole discretion of Tenant.

6.3           Supervision of Minors .  Tenant shall be responsible at all times, in accordance with Nevada Gaming Laws, to provide supervision at or near the Gaming Equipment to prevent minors from playing the Gaming Equipment or loitering in the Casino and will provide one (1) or more employees at all times during operation of the Gaming Equipment to achieve the foregoing.

6.4           Title to Gaming Equipment .  The Gaming Equipment is and shall remain Tenant’s Property at all times during the Term and shall not be deemed fixtures, notwithstanding any attachment or connection thereof to any part of the Premises.  The Gaming Equipment shall not be deemed part of the Leased Assets.

6.5           Chips and Tokens .  In connection with the termination of the Lease, Tenant shall be solely responsible for the redemption of Tenant’s outstanding chips and tokens in accordance with and pursuant to the provisions of Regulation §12.070 (the “ Redemption Regulation ”).  In addition, Tenant shall pay all costs, charges and fees, including, but not limited to, reasonable attorney’s fees, incurred in connection with Tenant’s compliance with the Redemption Regulation.

6.6           Liquor .  Tenant may conduct the sale of liquor at the Hotel Casino (the “ Liquor Sales ”) and all activities necessary or incidental thereto, including, without limitation:

(a)           Liquor Sales .  Maintain all licenses necessary for the Liquor Sales, comply with all Applicable Laws, provide all equipment necessary or customary for the Liquor Sales, and undertaking all Liquor Sales; and

(b)           Expenses .  Be responsible for, and bear the expense of, all accounting, marketing, advertising, special events, and maintenance associated with the Liquor Sales.

7.             LANDLORD’S REPAIRS.

7.1           Landlord Repairs .  Landlord agrees, at no additional cost or expense to Tenant, to maintain and keep in good order, condition and repair the foundations, exterior walls, roof, HVAC, plumbing and electrical systems of the Hotel Casino except for reasonable wear and tear or for any damage thereto caused by any act or negligence of Tenant or its Affiliates, agents, employees, servants, contractors, licensees, customers or business invitees,, which shall be and remain the sole responsibility of Tenant (collectively, the “ Landlord’s Repairs ”).  It is an express condition precedent to all obligations of Landlord to undertake any of the Landlord’s Repairs that Tenant shall reasonably notify Landlord in writing of the need for such Landlord’s Repairs.

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7.2           Right of Entry .  Subject to Nevada Gaming Laws, in addition to any other rights of re-entry herein, Landlord reserves the right to enter the Premises to undertake Landlord’s Repairs or install and maintain energy submeters, conduits and other appurtenances in the soffit or other space above the ceilings or ceiling line, the walls and under any floors of the Hotel Casino.

8.             UTILITIES; TAXES.

8.1           Payment of Utilities .  From and after the Commencement Date, Tenant shall promptly pay all charges for fuel, gas, light, power, water, sewage, garbage disposal, trash, telephone and other utilities and costs of every nature incurred in connection with Tenant’s use and possession of the Leased Assets during the Term, all of which shall be paid directly to the public utility or private company supplying the same when due and without delinquency or, if the charges therefor are billed to Landlord, Landlord will subsequently bill such charges to Tenant at Landlord’s cost therefore calculated proportionally.  Landlord shall not be responsible for any loss, cost, damage, expense or liability Tenant may sustain as a result of a change in character of electric or other utility service or as a result of any public or private company’s failure to supply or reduction in any of the foregoing utility or other services to the Premises.

8.2           Payment of Taxes .  Tenant shall pay all federal, state, county, city, school district and municipal taxes, all assessments, both general and special, including all special charges, benefit assessments or judgments for local improvements and all taxes, assessments or charges of every kind or nature which may be levied against or may become due or payable in respect to (a) the Leased Assets, Tenant’s Property, machinery or equipment owned by, used by, or to be used by Tenant in the operation of the Hotel Casino; (b) the operation of the Hotel Casino, including, without limitation, all sales taxes, food and beverage taxes, and entertainment taxes; and (c) Rent (except income tax).  Such assessments, taxes and charges shall be paid by Tenant directly to the appropriate taxing or collecting authority or, if the same or any portion thereof shall have been billed to Landlord, Landlord will subsequently bill such charges to Tenant and Tenant shall pay such tax bills to Landlord within thirty (30) calendar days after notification by Landlord to Tenant, along with appropriate verification of amounts owing and paid, that the same are due and payable.  Any assessments, taxes and charges to be paid directly by Tenant to any taxing authority shall be paid by Tenant when due and evidence of timely payment thereof shall be provided by Tenant to Landlord promptly after payment upon request by Landlord.  Tenant shall only be responsible for that portion of the assessments, taxes and charges that are due or accrue (i) prior to the term of the Lease if they relate to Tenant’s occupation of the Premises and/or operation of the Hotel Casino and (ii) during the Term.

9.             INSURANCE.

9.1           Property Insurance .  Tenant shall, at all times during the Term and at its own expense, carry fire insurance and full extended coverage protection upon the Premises, including, without limitation, all FF&E, machinery and equipment in, on or about the Premises and the Tenant’s Property.  Such insurance protection shall cover losses in aggregate amounts of not less than one hundred percent (100%) of the full insurable value thereof, with a full replacement cost rider, endorsed and attached thereto.  Such policy shall be payable to Landlord and any mortgagee of Landlord, as their interests may appear.

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9.2           Liability Insurance .  Tenant shall, at all times during the Term and at its own expense, maintain in full force and effect for the use and benefit of Landlord, its existing policies of liability insurance under the terms of this Lease and Landlord shall be indemnified and protected against any and all claims for injuries or damages, suffered or alleged to have been suffered by any Person or Persons while in, on or about the Premises and for property damage arising from any and all demands, loss or liability and resulting at any time or times from the injury or death of any Person or Persons or from damage to any and all property, however arising, including, without limitation, food handling.  The insurance required to be provided by the provisions of this Section 9.2 may be provided under the terms of any blanket liability insurance policy carried by Tenant and in such event, in accordance with Section 9.5.1, Tenant shall furnish to Landlord a certificate of insurance evidencing the fact of such insurance on or before the Commencement Date.

9.3           Automobile Insurance .  Tenant shall, at all times during the Term and at its own expense, maintain in full force and effect for the use and benefit of Landlord, its existing policies of automobile liability insurance and Landlord shall be indemnified and protected against any and all claims for injuries or damages, suffered or alleged to have been suffered by an Person or Persons by vehicles owned, non-owned, or hired for use during the Term by or on behalf of Tenant.

9.4           Workers’ Compensation; Employer’s Liability .  Tenant shall, at all times during the Term and at its own expenses, maintain in full force and effect workers’ compensation insurance in accordance with Applicable Laws.  Tenant shall, at all times during the Term and at its own expense, maintain in full force and effect for the use and benefit of Landlord, its existing policies of employer’s liability insurance and Landlord shall be indemnified and protected against any and all claims for injuries or damages, suffered or alleged to have been suffered by an employee of Tenant.

9.5           Insurance Policies — General .

9.5.1        Payment of Premiums; Evidence .  Tenant shall pay all premiums for each policy of insurance required by this Article 9 when due.  Tenant has heretofore forwarded, and from time to time shall forward, to Landlord duplicate originals of certificates of insurance, together with true, correct and complete copies of all such insurance policies, including renewal and replacement policies, together with written evidence that the premiums therefore have been paid in full.

9.5.2        Cancellation .  Each policy of insurance required by this Article 9 shall provide that the same may not be cancelled upon less than thirty (30) calendar days prior written notice to Landlord.  Tenant shall direct Tenant’s insurance carriers to send copies of any and all notification of pending cancellation of insurance for any purpose whatsoever direct to the attention of Landlord at least thirty (30) calendar days prior to cancellation.

9.5.3        Subrogation .  Each policy of insurance required by this Article 9 shall contain an express waiver of any and all right of subrogation thereunder against Landlord, its agents, employees, servants or contractors.  All such policies shall be written as primary policy and not contribution with or in excess of the coverage, if any, that Landlord may carry.  Any

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provision of this Lease notwithstanding, the amounts of all insurance required hereunder to be paid by Tenant shall be not less than an amount sufficient to prevent Landlord from becoming a co-insurer.

9.5.4        Hazardous Activities .  Tenant shall not use or occupy, or permit the Leased Assets to be occupied or used, in an manner which will increase the rates of any insurance for the Leased Assets, the Property or the overall development within which the Hotel Casino is situated or that will make void or voidable any insurance then in force with respect to the Leased Assets, the Property or the overall development within which the Hotel Casino is situated, or which will make it impossible to obtain fire or other insurance with respect to the Leased Assets, the Property or the overall development within which the Hotel Casino is situated.  If Tenant shall fail to comply with the provisions of this Section 9.5.4, such noncompliance may be deemed, in Landlord’s sole discretion, to be an Event of Default hereunder and Tenant shall indemnify Landlord for any increases in insurance premium charged to Landlord as a result of Tenant’s noncompliance with the Section 9.5.4.

9.5.5        No Prohibited Activity .  Tenant agrees that it will not keep, use, sell or offer for sale in or upon the Premises any article or permit any activity which may be prohibited by any standard form of insurance policy.  Tenant agrees to pay any increase in premiums for insurance which may be carried by Landlord on the Property or the overall development in which the Hotel Casino is situated, resulting from the type of operations, of merchandise sold, or services rendered by Tenant or any of its activities in or about the Premises, whether or not Landlord has consented to the same.

9.5.6        Additional Insureds .  Each policy of insurance required by this Article 9 shall name Landlord or its successors or Affiliates as an additional insured thereunder.

9.6           Insurance Obligations under Loan Agreement .  Article VI of the Loan Agreement is hereby incorporated by reference and shall survive any foreclosure of the Loan for the benefit of Lender. Tenant’s maintenance of all insurance coverages required to be carried by the borrower under the Loan Agreement shall be deemed to satisfy the Tenant insurance requirements of this Article 9.

10.           LIENS.

10.1         Liens .  Tenant shall at all times indemnify, save and hold Landlord, the Premises, the Property and the leasehold created by this Lease free of and harmless from any claims, liens, demands, charges, encumbrances, litigation and judgments arising directly or indirectly out of any use, occupancy or activity of Tenant, or out of any work performed, material furnished, or obligations incurred by Tenant in, upon or otherwise in connection with the Leased Assets.  Tenant shall, at its sole cost and expense, within sixty (60) calendar days after filing of any lien of record, obtain the discharge and release thereof.  Provided, however, if Tenant disputes the validity of any lien, Tenant shall be given a reasonable amount of time to resolve such dispute and obtain the discharge and release of such lien.

 

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11.           INDEMNIFICATION.

11.1         Indemnification by Tenant .  Tenant hereby indemnifies, saves and holds Landlord, the Leased Assets, the Property, and the leasehold estate created by this Lease free of and harmless from any and all liabilities, losses, costs, expenses, including reasonable attorneys’ fees (at trial and on appeal), causes of action, suits, judgments, claims, liens and demands of any kind whatsoever in connection with, resulting from or arising out of or by reason of any direct or indirect use, misuse, occupancy, possession, act, omission or negligence of, Tenant, its agents, employees, servants, contractors, subtenants, licensees, customers or business invitees while in, upon, about or in any way connected with the Leased Assets, the Property, or the overall development in which the Premises is situated or arising from any accident, injury or damage, howsoever and by whomsoever caused, to any Person or property whatsoever, occurring in, upon, about or in any way connected with the Leased Assets or any portion thereof.  Tenant’s indemnification obligations shall include all obligations and liabilities arising from Tenant’s occupation of the Premises (whether prior to or during the Term) and all matters pertaining to Tenant’s employees.

11.2         Indemnification by Landlord .  Landlord hereby indemnifies, saves and holds Tenant, the Leased Assets, the Property, and the leasehold estate created by this Lease free of and harmless from any and all liabilities, losses, costs, expenses, including reasonable attorneys’ fees (at trial and on appeal), causes of action, suits, judgments, claims, liens and demands of any kind whatsoever in connection with, resulting from or arising out of or by reason of any intentional act, omission or negligence of, Landlord, its agents, employees, servants, contractors, licensees, customers or business invitees while in, upon, about or in any way connected with the Leased Assets or Property.

12.           SUBORDINATION.

12.1         Subordination. .  This Lease and Tenant’s rights hereunder are and shall remain subordinate to the lien of any mortgage, deed of trust or other encumbrance, together with any renewals, extensions or replacements


 
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