EXHIBIT 99.9
ENERGY SERVICES COORDINATION AGREEMENT
This Energy Services Coordination Agreement, ("the Agreement")
is made and entered into as of this 28th day of May 1999 (the "Effective Date"),
by and among (i) Aladdin Gaming, LLC, ("Aladdin"), a limited liability company
organized under the laws of the State of Nevada and (ii) Aladdin Bazaar, LLC
("Bazaar"), a Delaware limited liability company (each of Aladdin and Bazaar
named individually as a "Party" and collectively as the "Parties").
W I T N E S S E T H
WHEREAS, the Parties plan to participate in the development,
construction and operation of (i) a luxury themed hotel of approximately 2,600
rooms (the "Hotel"), a 116,000 square foot casino (the "Casino"), a 1,400-seat
production showroom, seven restaurants and a newly renovated 7,000-seat Theatre
of the Performing Arts (the "Theatre" and together with the Hotel and Casino,
the "Aladdin Hotel and Casino"); (ii) a high-end themed entertainment shopping
mall with a gross-leasable area of approximately 450,000 square feet (the
"Desert Passage"); and (iii) a 4,800-space parking facility (the "Carpark" and
together with the Desert Passage, the "Mall Project"). The Aladdin Hotel and
Casino and the Mall Project are hereinafter referred to as the "Complex."
WHEREAS, Aladdin has entered into an agreement with Northwind
Aladdin, LLC (the "Energy Provider"), a company a majority,of which is
indirectly-owned by Unicom Corporation, dated as of December 3, 1997 (as amended
and in effect from time to time the "Development Agreement") to develop and
construct an energy facility (the "Plant") to supply the hot water, chilled
water and electricity needs of the Complex (the "Energy Services") with the
understanding that the Mall Project intends to acquire Energy Services, as
further set forth herein, from the Energy Provider, and further, that Bazaar
would enter into this Agreement;
WHEREAS, Aladdin is the beneficiary of a guaranty of Unicom
Corporation (the "Guarantor"), dated as of December 3, 1997 (as amended and in
effect from time to time the "Guaranty") pursuant to which the Guarantor
unconditionally and irrevocably guaranties to Aladdin the performance of the
obligations and duties of the Energy Provider under the Development Agreement to
construct and demonstrate "Final
Completion" of the Plant, subject to a limitation of the lesser of (i) $30
million or (ii) the "Guaranteed Maximum Price" as finally determined and agreed
upon pursuant to the Development Agreement plus interim operating costs up to
the "Substantial Completion Date";
WHEREAS, Aladdin has entered into a lease with the Energy
Provider dated as of December 3, 1997 (as amended and in effect from time to
time the "Lease") to lease a site (the "Site") to the Energy Provider on which
the Energy Provider will construct and operate the Plant pursuant to the
Development Agreement and the Energy Service Agreements;
WHEREAS, each of the Parties has entered into an energy
service agreement with the Energy Provider dated as of September 24, 1998 (as
amended and in effect from time to time the "Energy Service Agreements" and
together with the Development Agreement, the Guaranty and the Lease, the
"Project Agreements") to operate the Plant and to provide Energy Services to
each of the Parties for an initial term of twenty (20) years (the "Initial
Term");
WHEREAS, the Energy Provider has agreed pursuant to the terms
of the Development Agreement and the Energy Service Agreements to finance the
development, construction and initial operation of the Plant;
WHEREAS, the Energy Provider will recover its investment in
the Plant pursuant to a monthly capacity charge set forth in the Energy Service
Agreements (the "Contract Capacity Charges") to be collected from each of the
Parties pursuant to the terms of the respective Energy Service Agreements; and
WHEREAS, the Parties desire to set forth their understandings
as to their respective rights, obligations and interests with respect to the
development, construction, operation and ownership of the Plant as set forth in
the Project Agreements; the responsibilities of each Party with respect to the
Contract Capacity Charges; the procedures to be followed in the event of an
Energy Provider default, or defaults under the Project Agreements; and certain
other matters with respect to the Plant and the Energy Services.
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties, intending
to be legally bound, hereby agree as follows:
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ARTICLE 1
DEFINITIONS AND INTERPRETATION; ASSIGNMENT
1.1 Definitions. Capitalized terms used herein shall have the meanings
set forth in Exhibit A (unless a different meaning shall be expressly stated
herein).
ARTICLE 2
GENERAL OBLIGATIONS
2.1 Good Faith of the Parties. During the term of this Agreement, the
Parties will each (i) exercise good faith efforts in performing their respective
obligations under this Agreement and the Project Agreements, (ii) cooperate and
communicate fully with one another to that end and (iii) continue in good faith
to meet their respective obligations under this Agreement and the Project
Agreements to provide information and assistance requested by the Energy
Provider to be utilized by it in its development, construction and operation of
the Plant subject to the terms and conditions of this Agreement and the Project
Agreements.
2.2 Parties' Power to Bind Companies. No Party or affiliate thereof
shall take any action purporting to bind any other Party or its affiliates. All
actions in connection with the development, construction and operation of the
Plant undertaken after the execution of this Agreement by the Parties or their
affiliates without the prior written approval of the Management Committee, as
defined below, are at their sole risk and expense.
2.3 Compliance with Project Agreements. No Party shall take, allow,
permit, cause or fail to take any action which results in a material breach of
the Project Agreements by any person or entity party thereto. Each Party shall
enforce and shall not permit the breach of any terms or provisions of the
Project Agreements to which such Party is a party.
(a) In the event a Party does allow, permit or cause, through
action or, when obligated to act as provided therein or above, inaction, the
breach of any provision of a Project Agreement, such Party shall promptly remedy
such breach at its sole cost and expense and shall be solely liable for any
costs, other than consequential damages, resulting from such breach.
(b) In the event a Party causes any of the other Parties to
incur costs and/or expenses pursuant to a Project Agreement, such Party shall be
solely
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liable for such costs and/or expenses, other than consequential damages, and
such Party shall pay to the other Parties incurring any such cost, interest on
amounts expended by such Parties, as provided in Section 8.5 hereof.
2.4 Coordination Regarding Energy Services. In the event that any of
the Parties are unable for any reason and at any time to obtain sufficient
levels of any of the Energy Services from the Energy Provider, the other Party
or Parties shall use good faith efforts, at no cost thereto, to assist the Party
or Parties in obtaining such Energy Services from alternative sources acceptable
to such Party or Parties.
2.5 Assignment of Development Agreement and Guaranty, (a) As an
inducement to The Bank of Nova Scotia, in its capacity as the administrative
Agent for certain Lenders (in such capacity, the "Administrative Agent"), to
consent to the execution and delivery of this Agreement and to Bazaar to enter
into this Agreement, Aladdin hereby absolutely and unconditionally grants,
assigns, transfers, conveys and delivers all of Aladdin's right, title,
interest, benefits and privileges under the Development Agreement and the
Guaranty to the Administrative Agent for the benefit of such Lenders, as the
senior assignee (the "Senior Assignee") and Bazaar, as the junior assignee (the
"Junior Assignee"); provided, however, during such time as Aladdin is enforcing
in all material respects the obligations of the other parties to the Development
Agreement and the Guaranty, Aladdin shall have a revocable license to receive
and collect all amounts due or which may become due to Aladdin under the
Development Agreement and the Guaranty, as applicable, and make all claims and
demands thereunder. If at any time prior to the performance by the other parties
of their respective obligations under the Development Agreement and the Guaranty
Aladdin for any reason whatsoever fails, refuses or is unable to enforce the
provisions of the Development Agreement and the Guaranty in all material
respects, either of the Senior Assignee or the Junior Assignee may demand that
Aladdin enforce such obligations under the Development Agreement and the
Guaranty. Such demand shall be given in accordance with the notice provisions in
Article 11. If Aladdin is unable or fails to resume enforcement of the
Development Agreement and the Guaranty, as the case may be, within five (5) days
after the date of such notice, the Senior Assignee shall have the sole right to
enforce the Development Agreement and the Guaranty. If the Senior Assignee does
not exercise such right within 10 days after the date of such notice or, if
after such exercise does not diligently enforce such obligations in all material
respects, the Junior Assignee shall have the right to exercise such right to
enforce the Development Agreement and the Guaranty by giving notice to Aladdin
and the Senior Assignee of its intention to do so.
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(b) Notwithstanding anything to the contrary in clause (a) of this
Section 2.5, Bazaar agrees with the Administrative Agent that Bazaar's sole
remedy for the failure of the Administrative Agent to exercise its rights under
clause (a) shall be the exercise of Bazaar's rights to compel enforcement of the
Development Agreement and the Guaranty in accordance with clause (a) and that
Bazaar shall have no rights to sue for, seek or collect from the Administrative
Agent any monetary or other damages of any sort whatsoever including, without
limitation, actual, compensatory, consequential, punitive or special damages.
(c) Aladdin agrees that the provisions of Section 10.4 of that certain
Agreement between Aladdin, the Administrative Agent and others dated as of
February 26, 1997, as the same may be amended from time to time, shall apply to
any exercise by the Administrative Agent of any of its rights under this
Agreement.
ARTICLE 3
MANAGEMENT COMMITTEE
3.1 Authority. As soon as possible after the Effective Date, the
Parties agree to establish a management committee ("the Management Committee")
to monitor and supervise the implementation of this Agreement and certain
activities related to the Project Agreements. The Management Committee shall
have the power and authority to: (i) supervise the implementation of, and take
whatever actions are reasonably necessary to effect the implementation of, this
Agreement and the Project Agreements; (ii) set the principles for negotiating
all amendments, modifications and renewals of this Agreement and the Project
Agreements; (iii) set the principles for negotiating all contracts for energy
services the Energy Provider may seek to negotiate with third parties; (iv)
appoint and supervise a Person,(the "Energy Services Liaison") to be responsible
for monitoring the day-to-day development, construction and operation of the
Plant and acting as the Parties' first and primary contact with the Energy
Provider in the event of an Energy Provider Default; (v) allocate among the
Parties any net proceeds or economic benefits derived from the Energy Provider's
sale of energy services to third parties ("Third-Party Sales Proceeds"), from
any lines fees, transmission fees, tariffs or other such amounts paid by any of
Bazaar's tenants to utilize the Plant or any power lines or other infrastructure
connected thereto if any such tenant elects to obtain electricity service from a
provider other than the provider providing electricity services to the Mall
Project ("Tenant Sales Proceeds") or from any condemnation proceeds payable
with respect to the Plant pursuant to Article 8 of the Lease ("Condemnation
Proceeds") according to the respective interests of the
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Parties in and to the Plant, as such interests are set forth in, and as
otherwise provided in, Section 3.8 below; and (vi) take any actions reasonably
necessary to effect the purposes of this Agreement and of the Project
Agreements.
3.2 Representation.
(a) The Management Committee shall be composed of four
(4) representatives as follows:
(i) Aladdin shall appoint two (2) representatives
(and two (2) alternative representatives) to represent the interests
of the Aladdin Hotel and Casino on the Management Committee. Initially,
Aladdin's representatives shall be Richard Goeglein and James McKennon
and its alternate representatives shall be Ronald Dictrow and Jack
Sommer; and
(ii) Bazaar shall appoint two (2) representatives
(and two (2) alternative representatives) to represent the interests of
the Mall Project on the Management Committee. Initially, Bazaar's
representatives shall be Ronald Dictrow and Jim Harris and its
alternate representatives shall be Jack Sommer and Ken Gillett.
(b) Each Party shall as soon as possible after the
Effective Date give notice in writing to the other Parties of the names and
addresses of its representatives and alternative representatives and,
following the designation of the Energy Services Liaison, shall give notice to
the Energy Services Liaison of at least five (5) business days in advance of
changes in representation or alternative representation of the Management
Committee. Each representative shall have only one vote on Management Committee
decisions. Each Party's representatives or alternative representatives in the
absence of a Party's representatives, shall be authorized, collectively and
individually, to represent and to bind such Party with respect to any matter
which is within the powers and authority of the Management Committee as set
forth in this Agreement. Each Party, through its representatives, shall inform
the other Parties of any information it anticipates will affect the rights,
duties and/or obligations of any other Party under this Agreement. For the
purposes of this Agreement, the term "representative" or "representatives" shall
hereafter be deemed to include any alternate representative taking the place of
an absent representative.
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3.3 Organizational Meeting; Chairman and Energy Services Liaison.
(a) Following the Effective Date, the Management
Committee shall meet within thirty (30) days (the "Organizational Meeting") and
at such meeting shall:
(i) elect one (1) of the representatives to serve as
the Chairman of the Management Committee (the "Chairman"). The Chairman
shall be elected by a majority vote of the representatives serving on
the Management Committee present at such first meeting; and
(ii) appoint and provide for the terms and conditions
for the employment and compensation of the Energy Services Liaison,
whose duties are set forth in Article 5.
(b) On or about each annual anniversary of the
Organizational Meeting, such meeting to be held in accordance with Section 3.4
below, the Parties shall hold an election, and a Chairman will be elected in
accordance with the provisions of this Section 3.3.
(c) The Management Committee may replace the Energy
Services Liaison at any meeting held in accordance with Section 3.4.
3.4 Meetings.
(a) Following the Organizational Meeting, the Management
Committee shall meet as determined in accordance with this Section 3.4. The
Chairman shall deliver to each of the Parties' representatives and each of the
alternate representatives a proper notice consisting of the date, time, location
and agenda of the meeting selected in good faith at least ten (10) business days
in advance of such meeting, except that such notice requirements may be waived
on a case-by-case basis upon the unanimous written agreement of the
representatives who did not receive notice of such meeting as required. Any
representative may request a meeting of the Management Committee by giving
proper notice consisting of the date, time, location and agenda of the meeting
to the other representatives at least ten (10) business days in advance of such
meeting.
(b) Attendance at meetings of the Management Committee by a
Party's representatives may include attendance by phone. In the event any
representative of a Party misses a meeting after proper notice under subsection
(a) of this Section 3.4, then for the sole purpose of any vote taken at that
meeting called with respect to any item listed on the agenda for such missed
meeting, a quorum shall be deemed to consist of the representatives present at
such meeting and the requirement for a
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majority vote in Section 3.5 shall only refer to the vote or votes of the
representatives present at such meeting.
3.5 Voting.
(a) Except as specified in Sections 3.4(b) and 3.5(b), and
subject to Article 4, all decisions, approvals and other actions of the
Management Committee shall require the majority vote of all representatives
present and having the right to vote at a meeting. In the event that the vote
on any decision, approval or other such action is deadlocked and such deadlock
is not resolved within three (3) days after the initial vote on such matter,
then any Party may submit such matter to arbitration in accordance in accordance
with the provisions of Article 8.
(b) Notwithstanding anything to the contrary contained in
Section 3.5(a), any decision, approval or other action which reasonably could be
believed to materially affect a Party's rights, duties or obligations under its
Energy Service Agreement or the development or operation of its portion of the
Complex shall require the express written consent of such Party, which may be
withheld in such Party's reasonable discretion. Such decisions include, by way
of illustration and not by way of limitation, the decision to release the
Guarantor from the Guaranty, to modify, amend or terminate the Guaranty, or to
increase the Plant Price (as defined in the Development Agreement) above
$45,000,000.00.
3.6 Other Committees. The representatives may by mutual agreement
establish such other committees as deemed necessary. The provisions of Article 3
hereof shall apply to the workings of each such committee; provided, however,
that in the event any such committee is unable to reach a majority decision with
respect to any matter before it, the decision shall be referred to the
Management Committee for final decision.
3.7 Costs. Each Party will bear its own costs in connection with
its participation in the Management Committee, and any other committee
established pursuant to Section 3.6 hereof, and this Agreement.
3.8 Division of Third-Party Sales Proceeds, Tenant Sales Proceeds
and Condemnation Proceeds. At such time as the Parties have reason to believe
that Third Party Sales Proceeds may be generated from the Plant, the Parties
shall agree upon the respective percentages of Third-Party Sales Proceeds to
which the Parties shall be entitled, including, but not limited to, the
percentage of Third-Party Sales Proceeds which shall be considered an increase
in the rent payable by the Energy
8
Provider to Aladdin pursuant to the Lease as a result of the Energy Provider's
sale of energy services to third parties, which agreement shall require the
unanimous consent of the Parties. Tenant Sale Proceeds shall be divided such
that seventy-five percent (75%) of such proceeds shall be attributed to the
infrastructure of the Plant and twenty-five percent (25%) of such proceeds
shall be attributed to the infrastructure of the Mall Project. The Parties shall
be entitled to a percentage of the Tenant Sales Proceeds attributable to the
Plant in accordance with a percentage determined by their respective initial
investments in the Plant divided by the total initial investment of all Parties
in the Plant (each a "Party Investment Percentage"), which percentage for each
Party is set forth on Exhibit C attached hereto. Bazaar also shall be entitled
to the entire portion of the Tenant Sales Proceeds attributable to the Mall
Project infrastructure (i.e. 25 % of the Tenant Sales Proceeds). Any
Condemnation Proceeds awarded to any of the Parties and attributable to the
Plant shall be apportioned between the Parties based upon their respective Party
Investment Percentage, and the Party so receiving such proceeds shall promptly
pay to each other Party the portion of such Condemnation Proceeds to which each
such Party is entitled hereunder.
ARTICLE 4
LOSS OF VOTING RIGHTS AND RIGHTS TO CONTROL
4.1 Loss of Voting Rights and Rights to Control. A Party shall be
deemed to have automatically lost its voting rights and any rights to control
matters with respect to the Plant or Energy Services provided under this
Agreement in the event that it: (i) commits a "Party Default," as defined in
Section 7.3 hereof, and fails to remedy the same in the period provided in
Section 7.3, or, (ii) if it commits a payment default under this Agreement
("Party Payment Default") and does not remedy such breach within fifteen (15)
days of notice of such breach provided by the Energy Services Liaison; (iii)
becomes a party to a voluntary or involuntary bankruptcy or insolvency
proceeding against it or a receiver or custodian is appointed with respect to
its assets and, if an involuntary proceeding, such proceeding is not dismissed
within ninety (90) days; (iv) takes action, voluntarily or involuntarily, to
liquidate or dissolve; or (v) undertakes such other actions as would require its
mandatory withdrawal pursuant to the specific terms of any other provision of
this Agreement. Notwithstanding a Party's automatic loss of its voting rights
and rights to control as provided in this Section 4.1, such Party and its rights
under its Energy Service Agreement shall remain subject to this Agreement.
4.2 Liability. As between the Parties and without prejudice to the
obligations under the Energy Service Agreements, in the event of an automatic
with
9
drawal, a Party shall remain liable for Contract Capacity Charges past due as
well as for future Contract Capacity Charges unless and until a third party in
accordance with its Energy Service Agreement and this Agreement, respectively,
has assumed the Party's obligations under such Energy Service Agreement and this
Agreement.
4.3 Interrelationship with Energy Service Agreement. The Parties hereby
acknowledge and agree solely between themselves and without prejudice to the
rights of the Energy Provider that, due to the complex nature of the
interrelationship between the Parties and their respective Energy Service
Agreements, (i) this Agreement is essential for the assurance of the Parties'
rights under their respective Energy Service Agreements, (ii) this Agreement and
the Energy Service Agreements are mutually dependent and not severable, (iii)
the validity of this Agreement and each Energy Service Agreement is contingent
upon, with respect to each Party, the continued existence of this Agreement and
such Party's respective Energy Service Agreement, and (iv) the rejection by any
Party or its trustee in a bankruptcy proceeding of this Agreement or its Energy
Service Agreement shall constitute an automatic rejection by such Party of the
other of this Agreement or its Energy Service Agreement not so rejected.
4.4 Mortgagee Cure Rights. Each mortgagee of a Party who shall have
notified the other Parties of its name and address shall be entitled to notice
of any default or mandatory withdrawal event hereunder on the part of such first
Party and shall have the opportunity to cure such default or mandatory
withdrawal event until ten (10) days after the later of (i) the expiration of
the cure period allowed to such first Party hereunder or (ii) such mortgagee's
receipt of such notice; provided, however, that (a) a default or mandatory
withdrawal event that by its nature is incapable of cure by such mortgagee
shall be deemed cured if such mortgagee promptly commences, and diligently
prosecutes to completion, proceedings to acquire the Defaulting Party's
interests in its premises and under the Project Agreements and hereunder, and
(b) such additional mortgagee cure period shall not affect any cure periods
provided by the Energy Provider to such mortgagee(s) under any of the other
Project Agreements. In the event that a Party or its trustee rejects this
Agreement in a bankruptcy proceeding, then (i) such Party's Energy Service
Agreement shall be deemed automatically rejected as provided in Section 4.3
above and (ii) such Party's mortgagee (x) will enter into an agreement with the
other Party or Parties to this Agreement in a form substantially similar to this
Agreement which shall contain the same conditions, agreements, terms,
provisions, and limitations as this Agreement (except for any obligations which
have been performed by Aladdin prior to such rejection or termination), (y) in
the case of Aladdin, will enter into new Aladdin Energy Documents (as such term
is defined in that certain Subordination, Non-
10
Disturbance and Attornment Agreement, and Consent between Aladdin, the
Administrative Agent and others having an effective date as of May 27, 1999 (the
"Subordination Agreement")), in each case in accordance with the provisions of
clause (e) Section 1.4 of the Subordination Agreement and (z) in the case of
Bazaar, will enter into a new Bazaar ESA which shall contain the same
conditions, agreements, terms, provisions, and limitations as the current Bazaar
ESA (except for any obligations which have been performed by Bazaar prior to
such rejection or termination).
ARTICLE 5
ENERGY SERVICES LIAISON
5.1 Authority.
(a) General Authority. The Energy Services Liaison shall have
those powers and authorities explicitly granted to it in writing by the
Management Committee, including those set forth in Exhibit B hereto, and shall
act on behalf of and owe an equal duty to all of the Parties. The Parties agree
by the execution of this Agreement that the Energy Services Liaison, in
accordance with and subject to the limitations of such powers and authorities
set forth herein, shall make any and all decisions relating to the day-to-day
operations of the Plant, and the Parties' rights, duties and obligations under
the Project Agreements, except as explicitly directed otherwise by the
Management Committee. The powers and authorities of the Energy Services Liaison
set forth in Exhibit B may be amended and/or modified at any time in accordance
with Section 3.5(a).
5.2 Duties. The Energy Services Liaison shall have those duties
and obligations set forth in Exhibit B hereto and as specified in writing by the
Management Committee. The Parties agree by the execution hereof that the Energy
Services Liaison shall (i) report to the Management Committee at each meeting;
(ii) promptly deliver all notices received from the Energy Provider with respect
to the Development Agreement to the Management Committee generally and the
relevant representatives thereof particularly; (iii) promptly inform the
Management Committee generally and the relevant representatives thereof
particularly of events which might reasonably be anticipated to affect the
rights, duties and/or obligations of any of the Management Committee or any of
the Parties; and (iv) perform the duties set forth in Exhibit B. The duties of
the Energy Services Liaison set forth in Exhibit B shall be in addition to those
general duties of this Section 5.2.
5.3 Compensation and Payment.
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(a) In the event the Energy Services Liaison already is
directly employed by one of the Parties, that Party will pay the Energy Services
Liaison a reasonable salary and all reasonable costs associated with the
performance of its duties under this Agreement.
(b) The Party employing the Energy Services Liaison will be
reimbursed for portions of the Energy Services Liaison's salary and associated
costs as follows: (i) the costs and expenses of the Energy Services Liaison with
respect to activities performed for the benefit of the Parties collectively
under the terms of this Agreement shall be charged to each of the Parties in
equal portions; (ii) the costs and expenses of the Energy Services Liaison with
respect to activities performed for the benefit of one Party at such Party's
request or with such Party's authorization shall be paid by such Party.
ARTICLE 6
DEVELOPMENT AGREEMENT
6.1 Energy Services Liaison. The Parties agree that they will
coordinate the exercise of the rights, duties and obligations under the
Development Agreement by relying on the Energy Services Liaison to the extent
set forth in Article 5.
ARTICLE 7
ENERGY SERVICE AGREEMENTS
7.1 Coordination.
(a) The Parties covenant and agree that they shall not
negotiate with the Energy Provider except in conjunction with the other Parties
hereto, and that each Energy Service Agreement executed after the date hereof
shall be substantially in identical form and of substantially identical effect.
In general, the Parties agree that they will coordinate the exercise of the
rights, duties and obligations under the Energy Service Agreements by relying on
the Energy Services Liaison to the extent set forth in Article 5.
(b) In particular, the Parties agree as follows:
(i) The Parties will cooperate and coordinate to the
extent practicable to provide the Energy Provider with, or
assist in the
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development of, any Exhibits to the Energy Service Agreements
to be completed after the date hereof;
(ii) Each of the Parties shall have "first call" on
Services produced by the Plant, as set forth in Section 2.1(c)
of the Energy Service Agreements; provided, however, that (A)
a Party's demand for Services may equal but shall not exceed
the Customer Energy Requirements as set forth in Exhibit B.2
to each Energy Service Agreement and (B) a Party's demand for
Services shall not cause the Plant Energy Requirements as set
forth in Exhibit B.1 of each Energy Service Agreement to be
exceeded;
(iii) A Party shall submit any "Additional Services
Request" (as defined in the Energy Service Agreement) to the
Management Committee at least seven (7) days prior to
submitting such request to the Energy Provider. If the period
for which the Additional Services are to be obtained exceeds
thirty (30) days, the Management Committee must approve such
request as provided in Section 3.5 hereof before the Party can
submit it to the Energy Provider. If such Additional Services
Request has not been rejected by the Management Committee
within such seven (7) day period, it shall be deemed approved;
(iv) The cost for Additional Services which increases
the Contract Capacity Charges shall be borne in full by the
requesting Party alone;
(v) Bazaar shall not consent, to the Energy
Provider's entering into commitments to sell Additional
Services to third parties; Aladdin shall do so only after
giving Bazaar thirty (30) days written notice and subject to
the provisions of Section 3.8 hereof;
(vi) The Parties will work in concert to ensure that
the provisions of Section 2.2 and Section 2.3 of each Energy
Service Agreement are complied with and, to the extent one or
all of the Parties violates Section 2.2 or Section 2.3 thereof
and the Party responsible cannot be positively identified, the
Parties agree to share equally in any costs arising under
Section 2.2(c) and, to the extent applicable, Section 2.3(c)
thereof; provided, however, that Bazaar shall bear no
responsibility for items related exclusively to the generation
or
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distribution of hot water services to the extent Bazaar was
not responsible for such costs;
(vii) To the extent any of the Supplier
Interconnection Equipment is damaged or destroyed by the
action or inaction of a Party and the Party responsible for
the damage or destruction is ascertained by either the Energy
Provider or the other Parties, that Party shall pay all costs,
as further described in Section 3.1 of each Energy Service
Agreement. To the extent a particular Party's responsibility
cannot be ascertained, the Parties shall pay, in equal
portions, the amounts then owing, as further described in
Section 3.1 of each Energy Service Agreement provided,
however, that notwithstanding anything in this Agreement to
the contrary, Bazaar shall bear no responsibility for items
related exclusively to the generation or distribution of hot
water services to the extent Bazaar was not responsible for
such costs and other than as set forth in Section 7.5(a)
hereof, Bazaar shall not be responsible for any costs
associated with repair or replacement of any portion of the
Plant which must be repaired or restored due to mechanical or
structural failure or ordinary wear and tear;
(viii) Subject to Section 3.5, the Parties will
coordinate a response to any Energy Provider request to modify
the Supplier Interconnection Equipment;
(ix) Subject to Section 3.5, the Parties will use
their best efforts to agree upon the contingency plan as
further described in Section 4.3 of each Energy Service
Agreement on or before the date on which the Guaranteed
Maximum Plant Price is fixed under the Development Agreement;
(x) Each Party hereby consents to the assignment by
the Energy Provider's members of their respective membership
interests in the Energy Provider to State Street Bank and
Trust Company ("SSB&T") as collateral agent for the Energy
Provider's lenders, as security for the Energy Provider's
obligations to such lenders, and further consents to the
exercise by SSB&T as such collateral agent of its rights under
such assignments, on and subject to the terms and conditions
of those certain consent agreements between Aladdin and
Bazaar, respectively, and SSB&T. Subject to the foregoing, no
Party shall permit the Energy Provider to transfer a
membership interest or
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issue any new membership interests, as further described in
Section 4.3(b) of each Energy Service Agreement but subject to
the exceptions thereto set forth in Section 10.2 of the Energy
Service Agreements, without the express permission of the
Management Committee as provided in Section 3.5;
(xi) Parties acquiring the Plant pursuant to Sections
6.3 (if applicable), 6.4 or 9.3 of each Energy Service
Agreement shall provide each other with full and complete
copies of all information obtained from the Energy Provider
pursuant to Section 5.5 of each Energy Service Agreement;
(xii) The Parties will use the Energy Services
Liaison as their primary contact with the Energy Provider in
the event of a default as more fully described in Exhibit B
hereto and in Article 6 of each Energy Service Agreement;
(xiii) The Parties will cooperate with each other and
coordinate their efforts in the event of a Force Majeure
Event, as described in Article 7 of each Energy Service
Agreement; and
(xiv) No Party shall have the right to terminate its
respective Energy Service Agreement due to a default by the
Energy Provider thereunder unless such party in furtherance of
Section 6.3 of its Energy Service Agreement, posts a cash
deposit or letter of credit in form acceptable to the
remainder of the Parties, covering such terminating Party's
pro rata share of the cost of purchasing the Plant based upon
the Party's Party Investment Percentage.
7.2 Energy Service Agreement Payment Defaults. In the event a Party
fails to comply with its obligation to pay all invoices delivered pursuant to
its Energy Services Agreement on or before the Energy Service Agreement Due
Date, or to make any payment of the Make Whole Amount or Default Make Whole
Amount, as applicable, pursuant to Section 6.3 of its Energy Service Agreement,
the Energy Provider will, within five (5) days of such Energy Service Agreement
Due Date or the due date for such Make Whole Amount or Default Make Whole
Amount, as applicable, having passed without payment, provide all Parties and
the Energy Services Liaison with notice of such payment lapse and afford the
non-failing Party an additional ten (10) days from receipt of such notice to
step in and make such payment. If any non-failing party makes such payment, then
such payment shall
15
accrue interest as provided in Section 8.5 hereof until the Failing Party repays
such non-failing Party in full, including any accrued and unpaid interest
charges. If no other Party makes such payment on behalf of the defaulting party
within such ten (10) day period, the Energy Provider shall have the right to
pursue all of its rights and remedies under the applicable Energy Service
Agreement.
7.3 Party Defaults.
(a) A Party shall have committed a Party Default if its
failure to make payments as required by its Energy Services Agreement, or
otherwise comply with its obligations thereunder, results in the Energy Provider
discontinuing Services to that Party pursuant to Section 6.3 thereof.
(b) Failure to remedy a Party Default within ten (10) business
days after the defaulting Party's receipt of a written notice from the Energy
Provider described in Section 6.3(a) of its Energy Service Agreement shall be a
material default under this Agreement and the defaulting Party shall be deemed
to have automatically lost its voting rights and rights to control in accordance
with Section 4.1 hereof.
7.4 Purchase of the Plant. The Parties agree that only Aladdin,
for so long as it is a member of the Management Committee hereunder and has not
been deemed to have automatically lost its voting rights and rights to control
pursuant to the provisions of Article 4 hereof, shall be the Controlling Party
and have the right to initiate the purchase of the Plant pursuant to Section 6.4
and Section 9.3 of the Energy Service Agreements, provided, however, that if
there is a Service Default (as defined in Bazaar's Energy Service Agreement)
with respect to any Party's Energy Services and Aladdin does not exercise the
remedies requested by such Party and provided as of the date hereof under
Sections 6.1 and 6.4 of Aladdin's Energy Service Agreement, then such Party
shall have its rights and remedies under Sections 6.1 and 6.4 of its Energy
Service Agreement and, if it elects to pursue such rights, shall be deemed to be
the Controlling Party under this Agreement for purpose of exercising such
rights. Each other Party hereunder shall have the right to elect to participate
in such purchase, as provided herein. If Aladdin has been deemed to have
automatically lost its voting rights and rights to control pursuant to the
provisions of Article 4 hereof, then the Party who is the successor to Aladdin
as Controlling Party shall have the exclusive right to initiate such purchase
while it remains a Party. If there is more than one Party other than Aladdin,
the foregoing provisions thereafter shall apply as among such Parties. Subject
to Aladdin's exclusive right set forth above, the following provisions shall
apply to any purchase of the Plant:
16
(a) In the event one or more Parties (collectively, the
"Acquiring Party") elect to acquire the Plant pursuant to Section 6.4 of its
Energy Service Agreement, the Acquiring Party shall notify in writing the other
Party or Parties (collectively, the "Non-Acquiring Party") at least twenty one
(21) days prior to notifying the Energy Provider of its intention to purchase
the Plant (such notice a "Purchase Notice"). The Non-Acquiring Party shall be
afforded the opportunity to acquire and share on a pro rata basis in the
ownership of the Plant based upon the Parties' respective Party Investment
Percentages and shall respond in writing to the Acquiring Party as to whether it
intends to join the Acquiring Party in acquiring the Plant within seven (7) days
of receiving the Purchase Notice. The form of ownership of the Plant shall be
determined, at the time of acquisition, by unanimous vote of all of the Parties
comprising the Acquiring Party.
(b) In the event the Acquiring Party determines to acquire the
Plant pursuant to Section 9.3 of its Energy Service Agreement, the Acquiring
Party shall notify the Non-Acquiring Party at least ninety (90) days prior to
notifying the Energy Provider of its intention to acquire the Plant. The
Non-Acquiring Party shall be afforded the opportunity to acquire and share
ratably in the ownership of the Plant based upon the Parties' respective Party
Investment Percentages and shall respond in writing as to whether it intends to
join the Acquiring Party in acquiring the Plant to the Acquiring Party within
thirty (30) days of receiving the Purchase Notice. The form of ownership of the
Plant shall be determined, at the time of acquisition, by unanimous vote of
all of the Parties comprising the Acquiring Party.
(c) The Parties agree that the acquisition of the Plant
pursuant to Section 9.3 of an Energy Service Agreement shall render that section
null and void for the Non-Acquiring Party in such Party's Energy Service
Agreement.
(d) Unless all Parties acquire the Plant, the Acquiring Party
shall assume the full obligations owed by the Energy Provider to the
Non-Acquiring Party under the Project Documents. Simultaneous with the transfer
of ownership from the Energy Provider to the Acquiring Party, the Acquiring
Party shall be deemed to have withdrawn from this Agreement. The Non-Acquiring
Party shall have all of its rights and obligations under its Energy Service
Agreement, including the right to revenues from sales to third-parties and the
right to own a pro rata portion of the Plant upon the expiration of the term of
such Energy Service Agreement in accordance with Sections 3.8 and 7.4 hereof.
Upon the election by the Non-Acquiring Party to own a portion of the Plant, upon
the expiration of the term of its Energy Service Agreement, the ownership of the
Plant shall be in a form unanimously agreed upon by the Acquiring Party and the
Non-Acquiring Party. The Parties shall execute such
17
agreements as either may reasonably request in order to effectuate the terms of
this Section 7.4. Aladdin hereby covenants and agrees to maintain the Lease in
full force and effect and extend the term of the Lease for so long as any Energy
Services Agreement remains in force unless Aladdin is the sole Acquiring Party.
7.5 Rate Differential. The Parties acknowledge that Bazaar's Energy
Service Agreement provides that Bazaar will pay a different rate for Energy
Services than the other Parties will pay therefor under their respective Energy
Service Agreements. The Parties agree that, to the extent that Bazaar pays
higher rates for Energy Services than the other Parties, the portion of the
Consumption Charges (as defined in Bazaar's Energy Service Agreement) paid by
Bazaar each year attributable to the rate differential between the rates paid by
Bazaar for Energy Services and the rates paid by the other Parties for Energy
Services (the "Rate Differential Amount") will be credited towards Aladdin's
Contract Capacity Charges (as defined in Aladdin's Energy Service Agreement)
payable under Aladdin's Energy Service Agreement for the following year.
Notwithstanding the foregoing, the following provisions shall apply with respect
to all Consumption Charges paid by Bazaar during the term of its Energy Service
Agreement (as it may be extended):
(a) In the event that the Rate Differential Amount for any calendar
year is less than Bazaar's "Contract Maintenance Costs" (defined as Bazaar's
share (which shall be determined based upon the respective demands of the
Parties, but shall not exceed $110,000 per calendar year) of the maintenance
cost of the Plant for such year, based solely upon costs under actual
maintenance contracts for the Plant, including bid-out, full coverage
maintenance and in-house maintenance contracts, and not including any other
Operational Charges as defined in Exhibit C to the Aladdin Energy Service
Agreement) or any repair or replacements of any portion of the Plant (other than
those specifically attributable to the affirmative actions or, when obligated to
act, inaction, of Bazaar)), then Bazaar's monthly Consumption Charges for the
subsequent calendar year shall be recalculated and adjusted upward, each by an
amount equal to 1/12 of the lesser of the amount by which the Rate Differential
Amount is less than Bazaar's Contract Maintenance Costs or $110,000,
provided,such upward adjustment shall not exceed $110,000.00 in the aggregate
for such year, and Aladdin's Consumption Charges for such year, payable under
the Alladin Energy Service Agreement, will be adjusted downward in an amount
equal to the upward adjustments of Bazaar's Consumption Charges. Such adjustment
shall take into consideration and be based upon the final Market Rate for
Chilled Water Services, as provided in Exhibit "C" of Bazaar's Energy Service
Agreement.
18
(b) In the event that for any calendar year during the term of Bazaar's
Energy Service Agreement: (a) the percentage obtained by dividing (i) the
aggregate Contract Capacity Charges actually paid by the Parties other than
Bazaar (i.e., excluding the Rate Differential Amount credited towards such
Contract Capacity Charges as provided above) during such year, by (ii) the
aggregate of all Contract Capacity Charges paid by all of the Parties plus the
Rate Differential Amount (the "Actual Percentage") during such year (b) is less
than 66.67%, then Aladdin shall pay to Bazaar, within sixty (60) days after the
date such amount is determined by the Energy Provider, an amount equal to: (a)
the percentage resulting from 66.67% minus the Actual Percentage, multiplied by
(b) the aggregate during such year of all Contract Capacity Charges paid by all
of the Parties plus the Rate Differential Amount. The Parties shall cause the
Energy Provider to undertake the foregoing calculation and to inform the Parties
of the results thereof, and the amounts, if any, owed by Aladdin to Bazaar,
within thirty (30) days after end of each calendar year during the term of
Bazaar's Energy Service Agreement.
ARTICLES 8
DISPUTE RESOLUTION
8.1 Disputes. In the event of a dispute among the Parties or their
representatives with respect to the terms of this Agreement, the Parties and
their representatives shall seek to resolve such dispute at a meeting of the
Management Committee.
8.2 Arbitration. In the event the Parties or their representatives are
unable to resolve any dispute, controversy or claim arising out of or in
connection with this Agreement as set forth in Section 8.1 above, any Party may
request in writing that the dispute be referred to the respective senior level
management of each Party for decision. Such managers shall meet immediately and
attempt in good faith to negotiate a resolution of the dispute. If the managers
are unable to resolve the matter within thirty (30) days of the written request
referring the matter to them, any Party may, within thirty (30) days following
the end of such thirty (30) day period, elect to refer the matter to arbitration
and the dispute shall be settled by binding arbitration in accordance with the
Arbitration Rules of the American Arbitration Association then in effect.
8.3 Arbitrators. There shall be three (3) arbitrators selected in
accordance with the Rules. The arbitration shall he held in the State of Nevada.
19
8.4 Binding Decision. The decision of the arbitrators shall be final
and binding on the Parties and shall be the sole and exclusive remedy regarding
any claims, counterclaims, issues or accounting presented to the arbitrators.
Judgment upon the award may be entered by any court having jurisdiction thereof.
The Parties agree to exclude any rights of application or appeal to the courts
of the State of Nevada in connection with any questions of law arising in the
course of the arbitration or with respect to any award made except for actions
to enforce an award.
8.5 Award. The Party prevailing in any dispute submitted to arbitration
or in any suit filed thereby shall be entitled to a monetary award for actual
damages sustained. Any monetary award shall be made and payable in U.S. Dollars.
The arbitrators shall be authorized to grant pre-award and post-award interest
at commercial rates without there being any presumption as to whether such
interest will be granted. In addition, and in the event that any Party incurs
costs on behalf of another Party and this Agreement provides that the Party
incurring such costs is entitled to interest on the amounts expended thereby,
then such amounts shall bear interest at a rate equal to the lesser of one and
one-half percent (1 1/2%) per month, or the maximum amount permitted by
applicable law, until such amounts, together with interest accrued thereon, are
repaid in full by the Party causing such costs to be incurred. Unless otherwise
ordered by the arbitrators, the prevailing Party shall be entitled to reasonable
costs and fees, including its share of the costs of the arbitration, and its own
attorneys' fees and expenses. The Parties expressly agree that the arbitrators
shall have no power to consider or award punitive or exemplary damages.
8.6 Binding on Parties. This agreement to arbitrate shall be binding
upon the successors, assigns, trustee, receiver or executor of each Party.
8.7 Injunctive Relief. Notwithstanding the foregoing provisions of this
Article 8, each Party specifically acknowledges that monetary damages alone
would be an inadequate remedy for the damages which would be incurred by a Party
as a result of a breach of any of the provisions of this Agreement by the other
Parties. Accordingly, each Party will be entitled to petition a court or
tribunal of competent jurisdiction for injunctive relief to enjoin any breach or
threatened breach of this Agreement by another Party, prior to or during the
pendency of arbitral proceedings.
ARTICLE 9
LIMITATION OF LIABILITY
20
9.1 Limitation of Liability. Notwithstanding any other provision of
this Agreement, in no event shall the Parties or any of their Affiliates,
subcontractors or vendors, by reason of any of their respective acts or
omissions relating to the design, financing, ownership, construction, operation
or maintenance of the Plant or relating to any of their obligations under this
Agreement, be liable to the other Parties whether in contract, tort, warranty,
negligence, strict liability or otherwise for any special, indirect, incidental,
consequential, punitive, exemplary, or similar damages arising out of or in
connection with this Agreement, or the performance, non-performance or breach
thereof.
ARTICLE 10
REPRESENTATIONS AND WARRANTIES
Each Party hereby represents and warrants to the other Parties
that:
(a) It is a duly organized, validly existing entity
of the type described in the introduction to this Agreement and is in good
standing under the laws of the jurisdiction of its formation. It has all
requisite power and authority to enter into and to perform its obligations under
this Agreement;
(b) Its execution, delivery and performance of this
Agreement have been authorized by all organizational action on its part and that
of its equity owners (if required), and do not and will not (i) violate any law,
rule, regulation, order or decree applicable to it, (ii) violate its
organizational documents, or (iii) cause a default or cause it to contravene the
terms of any contract to which the Party or its property is bound;
(c) This Agreement is a legal and binding obligation
of the Party, enforceable against the Party in accordance with its terms, except
to the extent, enforceability is modified by bankruptcy, reorganization and
other similar laws affecting the rights of creditors and by general principles
of equity; and
(d) There is no litigation pending or, to the best of
its knowledge, threatened to which that Party or any or its Affiliates is party
that, if adversely determined, would have a material adverse effect on the
financial condition, prospects, or business of that Party or its ability to
perform its obligations under this Agreement.
21
[ALADDIN(TM) LOGO]
September 18, 2000
VIA FEDERAL EXPRESS AND
FACSIMILE
Aladdin Bazaar, LLC Northwind Aladdin, LLC
c/o TH Bazaar Centers, Inc. c/o UTT Holdings, Inc.
4350 La Jolla Village Drive 30 West Monroe Street
Suite 400 Suite 500
San Diego, California 92122-1233 Chicago, Illinois 60603
Attn: Mr. Andrew Blair Attn: General Manager
Ms. Wendy Godoy Fax: 312-634-3201
Fax: 858-546-3307
Re: Energy Services Coordination Agreement, dated May 28, 1999
Ladies and Gentlemen:
Pursuant to Article 11 of the Energy Services Coordination Agreement,
dated May 28, 1999, Aladdin Gaming, LLC hereby changes its address for notices
and other communications as follows:
Aladdin Gaming, LLC
3667 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attn: Mr. Richard Goeglein
President and Chief Executive Officer
Telephone: 702-785-5555
Facsimile: 702-785-5165
ALADDIN RESORT & CASINO
831 PILOT ROAD - LAS VEGAS, NV 89119 - P. 702.736.7114 - F. 702.736.7107
Aladdin Bazaar, LLC
Northwind Aladdin, LLC
September 18, 2000
Page 2
With a copy to:
Aladdin Gaming, LLC
3667 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attn: General Counsel
Telephone: 702-785-5555
Facsimile: 702-785-5165
Sincerely,
ALADDIN GAMING, LLC
By: /s/ Mark A. Clayton
-----------------------------
Mark A. Clayton, Esq.
Vice President/General Counsel
MAC/ksk
cc: Richard J. Goeglein
Attached Distribution List
Energy Services Coordination Agreement Distribution List
Aladdin Gaming:
The Bank of Nova Scotia
580 California Street
21st Floor
San Francisco, California 94104
Fax:214-397-0791
Bazaar:
Aladdin Bazaar Holdings, LLC
831 Pilot Road
Las Vegas, Nevada 89119
Attention: Ronald Dictrow
Fax: 702-736-7107
TrizecHahn Centers, Inc.
4350 La Jolla Village Drive, Suite 400
San Diego, California 92122
Attention: Legal Department
Fleet National Bank
75 State Street
MA BOF 11C
Boston, Massachusetts 02109
Attention: Real Estate Finance
Energy Service Provider:
Northwind Aladdin, LLC
6655 West Sahara Ave., Suite B102
Las Vegas, Nevada 89146
Attention: General Manager
Fax: 702-247-4325
ARTICLE 11
NOTICES
Except as otherwise provided in this Agreement, all notices,
requests or consents hereunder shall be in writing and shall be deemed effective
when delivered by registered mail or facsimile to the Party at its address or
facsimile number as follows:
If to Aladdin, to:
Aladdin Gaming, LLC
831 Pilot Road
Las Vegas, Nevada 89119
Attention: Richard Goeglein and General Counsel
Fax: (702) 736-7107
with a copy to:
The Bank of Nova Scotia
580 California Street
21st Floor
San Francisco, California 94104
Fax: (415) 397-0791
If to Bazaar, to:
Aladdin Bazaar, LLC
c/o TH Bazaar Centers Inc.
4350 La Jolla Village Drive, Suite 400
San Diego, California 92122
Attention: Wendy Godoy, Andrew Blair
Fax: (619) 546-3307
with a copy to:
Aladdin Bazaar Holdings, LLC
831 Pilot Road
Las Vegas, Nevada 89119
Attention: Ronald Dictrow
Fax: (702) 736-7107
22
and to:
TrizecHahn Centers, Inc.
4350 La Jolla Village Drive, Suite 400
San Diego, California 92122
Attention: Legal Department
and to:
Fleet National Bank
75 State Street
MA BOF 11C
Boston, Massachusetts 02109
Attention: Real Estate Finance
If to the Energy Services Liaison, to:
[_______________]
If to the Energy Services Provider, to:
Northwind Aladdin, LLC
c/o UTT Holdings, Inc.
30 West Monroe Street, Suite 500
Chicago, Illinois 60603
Attention: General Manager
Fax: (312) 634-3201
with a copy to:
Northwind Aladdin, LLC
6655 West Sahara Ave., Suite B102
Las Vegas, Nevada 89146
Attention: General Manager
Fax:(702)247-4325
23
Any Party may change its address or facsimile number to which notices are to be
directed to it by written notice to the other Parties in the manner provided
above. Any notice sent to one Party must be sent to all Parties in the manner
provided above.
ARTICLE 12
MISCELLANEOUS
12.1 Governing Law. This Agreement shall be interpreted in
accordance with and governed by the laws of the State of Nevada.
12.2 Assignment. Any assignment of any or all of a Party's interests
hereunder or to the Project Agreements shall only be made upon the prior written
approval of the other Parties hereto, which approval will not be unreasonably
withheld; provided, however, that any Party may assign any or all of its
interests hereunder to: (i) any of its lenders; or (ii) any Affiliate of such
party or to any party acquiring such Party's portion of the Complex or all of
the interests in such Party without the approval of the other Parties. The
assigning Party under (ii) above shall be released from all duties, liability
and obligations hereunder upon the assumption by the assignee of all the
assigning Party's duties and obligations hereunder. No assignment shall relieve,
release or discharge the assigning Party of its obligations hereunder, except as
expressly provided herein. All references herein to Aladdin and Bazaar shall
include their successors and assigns with respect to all or any portion of the
Complex. In addition, and notwithstanding anything to the contrary contained
herein, one or more Parties shall have the right to assign rights and
obligations under this Agreement to the Aladdin Music Project. Upon the
assumption by the Aladdin Music Project of the rights and obligations hereunder
and the execution by the Aladdin Music Project and the Energy Provider of an
Energy Service Agreement in substantially the identical form executed by the
Parties, the Aladdin Music Project shall become a Party hereunder with all of
the rights and obligations of the other Parties hereunder as if the Aladdin
Music Project had executed this Agreement as of the date hereof.
12.3 Relationship of Parties. The Parties understand and agree that
none of the Parties is an agent, employee, contractor, vendor, representative or
partner of any other Party and that they shall not hold themselves out as such
to third parties.
12.4 Integration. The terms and provisions contained in this Agreement
set forth the entire agreement of the Parties with respect to the subject matter
hereof and supersede and terminate all previous undertakings, representations
and agreements,
24
both oral and written, between any one or more of the Parties with respect to
the Plant.
12.5 Severability. If any of the provisions of this Agreement are held
to be invalid or unenforceable under the applicable law of any jurisdiction, the
remaining provisions shall not be affected, and any such invalidity or
unenforceability shall not invalidate or render unenforceable that provision in
any other jurisdiction. In that event, the Parties agree that the provisions of
this Agreement shall be modified and reformed so as to effect the original
intent of the Parties as closely as possible with respect to those provisions
that were held to be invalid or unenforceable.
12.6 Non-Recourse. The obligations of the Parties under this Agreement
are obligations of the Parties only, and no recourse shall be available against
any officer, director or member of a Party.
12.7 No Oral Modifications. This Agreement may not be amended or
modified except by written agreement signed by each of the Parties.
12.8 Effective Date: Term. This Agreement shall become effective as of
the Effective Date and shall continue in full force and effect until the
termination of either of the Energy Service Agreements.
12.9 Observance of Laws. Each Party shall comply with, and shall cause
its Affiliates to comply with, all applicable laws, rules and regulations of the
United States and the State of Nevada, or any other jurisdiction that is or may
be applicable to the Parties and their Affiliates' activities in connection with
the Plant. Any proven breach of this obligation shall be a material breach of
this Agreement.
12.10 Waiver. The waiver of any breach of any of the terms or
conditions hereof shall not be deemed a waiver of any other or subsequent
breach, whether of like or different nature. No failure to exercise and no delay
in exercising, on the part of any Party hereto, any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof.
12.11 No Third-Party Beneficiaries. This Agreement is solely for the
benefit of the Parties and their respective successors and permitted assigns,
including lenders, and this Agreement shall not otherwise be deemed to confer
upon or give to any other third-party, including but not limited to the Energy
Provider, any remedy, claim, reimbursement, cause of action or other rights,
except that the Energy Provider may
25
rely upon this Agreement in dealing with the Energy Services Liaison and/or the
Management Committee, and the Energy Provider agrees to be bound by and/or
undertake the obligations set forth in and pursuant to Sections 2.5, 7.2, and
7.5 hereof. Notwithstanding anything contained herein, the Energy Provider shall
have no obligations hereunder or be bound by the terms hereof other than under
Sections 2.5, 7.2 and 7.5.
12.12 Further Assurances. Each Party shall procure all acts, matters,
and things and the execution or signature of all other and further deeds and
documents to give full effect to the provisions of this Agreement.
12.13 Counterparts; Delivery. This Agreement rnay be executed in more
than one counterpart, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same document. Delivery of
executed signature pages may he accomplished by facsimile transmission.
12.14 Estoppel Certificates. The Parties agree to provide to the other
Parties hereto, from time to time, upon request, one or more commercially
reasonable estoppel certificates confirming the matters set forth herein.
[Balance of page intentionally left blank; signature page follows.]
26
IN WITNESS WHEREOF, the Parties hereto have caused this
Agreement to be executed by their duly authorized officers as of the day and
year first above written.
ALADDIN GAMING, LLC,
a Nevada limited-liability company
By:
----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
ALADDIN BAZAAR, LLC,
a Delaware limited-liability company
By: TH Bazaar Centers, Inc.,
a Delaware corporation, Member
By:
----------------------------------------
NAME:
---------------------------------------
TITLE:
--------------------------------------
By: Aladdin Bazaar Holdings, LLC,
a Nevada limited-liability company,
Member
By:
----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
27
The undersigned hereby acknowledges and agrees to be bound by the provisions of
Sections 2.5, 7.2, 7.5, and 12.11 hereof and to accept the performance by
Aladdin, Bazaar and any subsequent permitted Party hereto of their obligations
under their respective Energy Services Agreements as provided in this Agreement
and agrees to deliver and accept notices, information and materials as provided
for herein.
NORTHWIND ALADDIN, LLC,
a Nevada limited-liability company
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
28
EXHIBIT A
DEFINED TERMS
"Affiliate" means, with respect to a Party, (i) any of the other
Parties or (ii) any entity which is controlled by, under common control with or
controls such Party.
"Aladdin" means Aladdin Gaming, LLC, a limited liability company
organized under the laws of the State of Nevada.
"Aladdin Hotel and Casino" means the Hotel, together with the Casino, a
1,400-scat production showroom, six restaurants and a newly renovated 7,000 seat
Theater of the Performing Arts.
"Aladdin Music Project" means the developer of a hotel of approximately
1,000 rooms and a casino with a music and entertainment theme to be located
adjacent to the Aladdin Hotel and Casino and the Mall Project.
"Bazaar" means Aladdin Bazaar, LLC, a limited liability company
organized under the laws of the state of Delaware.
"Carpark" means a 4,800-space parking facility to serve the Complex.
"Casino" means a 116,000 square foot casino.
"Chilled Water Plant" is that cost in plant and equipment which in the
good faith opinion of the Energy Provider primarily serves to provide Chilled
Water Services.
"Complex" means the Aladdin Hotel and Casino together with the Sound
Project and the Mall Project.
"Controlling Party" means, for purposes only of that certain Consent
Letter Agreement dated as of May 28, 1999 by Bazaar in favor of State Street
Bank and Trust Company ("SSB&T") with regard to the financing of the Plant, and
except as otherwise agreed by the Parties, or as provided in Section 7.4 of this
Agreement, Aladdin, until such time as Aladdin shall be deemed to have
automatically lost its voting rights and rights to control pursuant to the
provisions of Article 1 hereof, at which time "Controlling Party" shall be
Bazaar. The Parties agree to give Energy Provider and SSB&T prompt notice of the
identity of the Controlling Party hereunder
from time to time. No action taken by any Party other than the Controlling Party
shall be binding upon SSB&T.
"Desert Passage" means a high-end themed entertainment shopping mall
with a gross leasable area of approximately 450,000 square feet.
"Development Agreement" means that Agreement between Aladdin and
Northwind Aladdin, LLC, dated as of December 3, 1997, providing for the
development and construction of an energy facility to supply the hot water,
chilled water and electricity needs of the Complex, as it may be amended,
restated, modified or supplemented and in effect from time to time.
"Effective Date" means the date of this Agreement's execution.
"Energy Provider" is defined in the second "Whereas" clause hereof.
"Energy Provider Default" means those service failures and defaults
described more fully in Section 1(vii) of Exhibit B hereto, Section 2(iii) of
Exhibit B hereto and in Article 6 of each Energy Service Agreement.
"Energy Services" means the hot water, chilled water and electricity to
be utilized by the Complex.
"Energy Service Agreements" means those agreements between each of the
Parties and Northwind Aladdin, each dated as of September 24, 1998, providing
for the operation of the plant, as they may be amended, restated, modified or
supplemented and in effect from time to time.
"Energy Service Agreements Due Date" means with respect to each Energy
Service Agreement the Due Date, as that term is defined in such Energy Service
Agreements.
"Energy Services Liaison" means that person or persons designated in
accordance with this Agreement to exercise the rights and perform those duties
and obligations as set forth herein.
"Guarantor" means Unicom Corporation.
"Guaranty" means a guaranty of Unicom Corporation pursuant to which the
Guarantor unconditionally and irrevocably guaranties to Aladdin the performance,
of
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the obligations and duties of the Energy Provider under the Development
Agreement to construct and demonstrate "Final Completion" (as such term is
defined in the Development Agreement) of the Plant, subject to a limitation of
the lesser of (i) $30 million or (ii) the "Guaranteed Maximum Price" (as such
term is defined in the Development Agreement) as finally determined and agreed
upon pursuant to the Development Agreement plus interim operating costs up to
the "Substantial Completion Date" (as such term is defined in the Development
Agreement).
"Hotel" means a luxury-themed hotel of approximately 2,600 rooms.
"Initial Term" means a term of twenty (20) years.
"Lease" means that certain Lease between Aladdin and the Energy
Provider dated as of December 3, 1997, to lease a site to the Energy Provider
on which the Energy Provider will construct and operate the Plant pursuant to
the Development Agreement and the Energy Services Agreement, as it may be
amended, restated, modified or supplemented and in effect from time to time.
"Management Committee" means a committee established by the Parties
pursuant to Article 3 of this Agreement to monitor and supervise the
implementation of this Agreement and certain activities related to the Project
Agreements.
"Mall Project" means the Desert Passage and the Carpark.
"Party Default" means a default by any Party as more fully described in
Article 7 of this Agreement.
"Plant" means the energy facility to be developed and constructed by
the Energy Provider to supply the Energy Services.
"Project Agreements" means those agreements described in the fifth
"Whereas" clause of this Agreement.
"Purchase Notice" means a written notice as described in Section 7.4 of
this Agreement.
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