EXHIBIT 99.10
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Northwind Aladdin, LLC )
c/o Lionel, Sawyer & Collins )
1700 Bank of America Plaza )
300 South 4th Street )
Las Vegas, Nevada 89101 )
Attn: Mark H. Goldstein, Esq. ) (Space above for Recorder's use)
SUBORDINATION, NON-DISTURBANCE
AND
ATTORNMENT AGREEMENT AND CONSENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT AND
CONSENT (this "Agreement") dated as of June 7, 1999 by and among THE BANK OF
NOVA SCOTIA ("Scotiabank"), a Canadian chartered bank, as the administrative
agent (in such capacity, the "Administrative Agent") for the Aladdin Lenders
under the Aladdin Credit Agreement (as such terms are hereinafter defined),
NORTHWIND ALADDIN, LLC, a Nevada limited-liability company ("Northwind"),
ALADDIN GAMING, LLC, a Nevada limited-liability company ("Aladdin Gaming"),
STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust company, as
collateral agent (in such capacity, the "Collateral Agent") for the Northwind
Noteholders under the Note Purchase Agreement (as such terms are hereinafter
defined), ALADDIN MUSIC, LLC, a Nevada limited-liability company ("Aladdin
Music") and ALADDIN MUSIC HOLDINGS, LLC, a Nevada limited-liability company
("AMH").
WITNESSETH:
WHEREAS, Aladdin Gaming owns certain real property located in Las
Vegas, Nevada and more particularly described in Exhibit A attached hereto and
made a part hereof (the "Property") and is constructing a hotel, casino and
theater complex (the "Aladdin Project") on a portion of the Property (the
"Aladdin Property");
WHEREAS, pursuant to that certain Lease (the "Bazaar Ground Lease")
dated as of February 26, 1998, Aladdin Gaming leased a portion of the Property
to Aladdin Bazaar, LLC, a Delaware limited-liability company ("Aladdin Bazaar"),
upon which property Aladdin Bazaar is constructing a retail mall and parking
facility (the "Mall Project");
WHEREAS, pursuant to that certain Lease (the "Music Ground Lease")
dated as of February 26, 1998, Aladdin Gaming leased a portion of the Property
(the "Music Property")
to Aladdin Music, upon which property Aladdin Music is to construct a hotel and
casino complex with a music entertainment theme (the "Music Project");
WHEREAS, pursuant to that certain Credit Agreement dated as of February
26, 1998 among Aladdin Gaming, various financial institutions party thereto (the
"Aladdin Lenders"), Scotiabank, individually and as the Administrative Agent for
the Aladdin Lenders, Merrill Lynch Capital Corporation, as the syndication agent
for the Aladdin Lenders, and CIBC Oppenheimer Corp., as the documentation agent
for the Aladdin Lenders, as amended by that certain First Amendment to Credit
Agreement dated as of January 29, 1999, and as further amended by that certain
Second Amendment to Credit Agreement dated as of April 5, 1999 (as so amended
and as hereafter amended, modified or replaced, the "Aladdin Credit Agreement"),
the Aladdin Lenders agreed, inter alia, to make the senior credit facility
described therein (the "Aladdin Credit Facility") available to Aladdin Gaming to
finance a portion of the cost of construction of the Aladdin Project, subject to
the terms of the Aladdin Credit Agreement;
WHEREAS, the obligations of Aladdin Gaming under the Aladdin Credit
Agreement are secured, in part, by that certain Deed of Trust dated as of
February 26, 1998 and recorded March 2, 1998, among Aladdin Gaming, as trustor,
Stewart Title of Nevada, as trustee, and Administrative Agent, as beneficiary
(as now or hereafter amended, modified or replaced, the "Aladdin Deed of Trust";
together with all other documents evidencing, securing or relating to the
Aladdin Credit Agreement as the same may be amended, modified, restated, renewed
or supplemented from time to time, collectively, the "Aladdin Loan Documents");
WHEREAS, Aladdin Gaming, as lessor, and Northwind, as lessee, entered
into the Lease dated as of December 3, 1997, as amended by that certain
Amendment and Agreement dated as of September 25, 1998, that certain Second
Amendment and Agreement dated as of May 28, 1999 (such amendments are
collectively referred to herein as the "Amendments", and such lease as so
amended is referred to herein as the "Lease") in respect of a portion of the
Property described on Exhibit A thereto (the "Energy Project Site") pursuant to
which Aladdin Gaming leased the Energy Project Site to Northwind, subject to the
terms thereof;
WHEREAS, pursuant to that certain Development Agreement dated as of
December 3, 1997 between Aladdin Gaming and Northwind, as amended by the
Amendments (as so amended, the "Development Agreement"), Northwind agreed to
construct an energy production and distribution facility (the "Energy Project")
to distribute electricity to, and to produce emergency power, hot water and
chilled water for, the Aladdin Project, the Mall Project and the Music Project
(referred to in the Development Agreement as the "Sound Asylum Project");
WHEREAS, pursuant to that certain Energy Services Agreement dated as of
September 24, 1998 between Aladdin Gaming and Northwind, as amended by the
Amendments (as so amended, the "Aladdin ESA", and together with the Lease and
the
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Development Agreement, the "Aladdin Energy Documents"), Northwind agreed to
sell, and Aladdin Gaming agreed to purchase, electricity, emergency power, hot
water and chilled water for the Aladdin Project, subject to the terms thereof;
WHEREAS, pursuant to that certain Energy Services Agreement dated as of
September 24, 1998 between Aladdin Bazaar and Northwind, as amended by three
amendments each dated as of May 28, 1999 (as so amended, the "Bazaar ESA"),
Northwind agreed to sell, and Aladdin Bazaar agreed to purchase, electricity,
emergency power and chilled water for the Mall Project, subject to the terms
thereof;
WHEREAS, pursuant to that certain Coordination Agreement dated as of
May 28, 1999 between Aladdin Gaming and Aladdin Bazaar (the "Coordination
Agreement"), Aladdin Gaming and Aladdin Bazaar entered into an agreement
regarding their respective rights vis-a-vis one another under the Aladdin ESA
and the Bazaar ESA;
WHEREAS, Northwind's obligations to construct and demonstrate final
completion of the Energy Project under the Development Agreement are guaranteed
by Unicom Corporation ("Unicom") pursuant to a Guaranty dated as of December 3,
1997 (the "Guaranty") by Unicom in favor of Aladdin Gaming;
WHEREAS, pursuant to that certain Construction, Operation and
Reciprocal Easement Agreement dated as of February 26, 1998 (as hereafter
amended, modified or replaced, the "REA") "among Aladdin Gaming, Aladdin Bazaar
and AMH (with Northwind as a defined party, though not a signatory party,
thereto), Northwind is the beneficiary of certain license, easement and other
rights over, across, under and above the Property (the "Related Rights");
WHEREAS, pursuant to that certain Assignment of Gaming Energy Documents
dated as of the date hereof between Aladdin Gaming and the Administrative Agent
(the "Assignment of Gaming Energy Documents"), Aladdin Gaming has assigned to
the Administrative Agent for the benefit of the Aladdin Lenders all of Aladdin
Gaming's right, title and interest under the Guaranty, the Development
Agreement, the Aladdin ESA, the Lease and the Coordination Agreement, subject to
the terms thereof; and
WHEREAS, Northwind has assigned to the Collateral Agent pursuant to
that certain (i) Leasehold Deed of Trust, Assignment of Leases and Rents and
Security Agreement (the "Northwind Deed of Trust") in favor of the Collateral
Agent, and (ii) Security Agreement (the "Northwind Security Agreement") in favor
of the Collateral Agent, each dated as of the date hereof, all of its right,
title and interest under the Lease and the REA and the other Project Documents,
as defined therein, to secure Northwind's obligations under the Note Purchase
Agreement (the "Note Purchase Agreement") dated as of the date hereof among
Northwind, the Collateral Agent and the purchasers referred to therein (the
"Northwind Noteholders") and the other documents executed in connection
therewith (collectively, the
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"Northwind Financing Documents") and Aladdin Gaming is consenting to
such assignment pursuant to the terms hereof; and
WHEREAS, the parties hereto desire to enter into this Agreement in
order to set forth certain agreements with respect to the foregoing.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound hereby, agree as
follows:
ARTICLE I
ALADDIN ENERGY DOCUMENTS
SECTION 1.1 Representations by Northwind. Northwind makes the following
representations and warranties to the other parties to this Agreement as of the
date hereof:
(a) The Aladdin Energy Documents and, to the best of its knowledge, the
REA, are in full force and effect, constitute (with this Agreement) all the
agreements to which it is a party with Aladdin Gaming or a beneficiary with
respect to the subject matter thereof and have not been modified except for any
change orders listed on Schedule 1 annexed hereto and as otherwise set forth
herein;
(b) The Aladdin Energy Documents are legal, valid and binding
obligations of Northwind and are enforceable in accordance with their respective
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;
(c) The rights of Northwind under the Aladdin Energy Documents and the
REA have not been assigned by Northwind except to the Collateral Agent for the
benefit of the Northwind Noteholders pursuant to the Northwind Financing
Documents;
(d) No default or event of default on the part of Northwind (or, to the
best of its knowledge, on the part of any other party thereto) exists under the
Aladdin Energy Documents or the REA with respect to matters relating to the
Energy Project (nor has any event occurred which, with the giving of notice
and/or the passage of time, would constitute an event of default thereunder),
the conditions precedent to the effectiveness thereof set forth in Section 5.1
(a) of the Aladdin ESA have been fulfilled, and the conditions required to be
fulfilled as of the date hereof under Sections 5.1(b) and (c) of the Aladdin ESA
have been fulfilled;
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(e) No Event of Default (as defined in the Note Purchase Agreement)
which would be material to the interests of the Purchasers (as defined in the
Note Purchase Agreement) under the Note Purchase Agreement has occurred and is
continuing;
(f) To the best of its knowledge, Northwind has no offsets or defenses
to its obligations under the Aladdin Energy Documents or the REA with respect to
matters relating to the Energy Project; and
(g) To the best of its knowledge, Northwind has no claims or
counterclaims against any other party with respect to the Aladdin Energy
Documents or the REA with respect to matters relating to the Energy Project.
SECTION 1.2 Representations of Aladdin Gaming. Aladdin Gaming makes the
following representations and warranties to the other parties to this Agreement
as of the date hereof:
(a) The Aladdin Energy Documents, the Coordination Agreement and the
REA are in full force and effect, constitute (with this Agreement) all the
agreements to which it is a party with Northwind with respect to the subject
matter thereof and have not been modified except for any change orders listed on
Schedule 1 annexed hereto and as otherwise set forth herein;
(b) The Aladdin Energy Documents, the Coordination Agreement and the
REA are the legal, valid and binding obligations of Aladdin Gaming and are
enforceable in accordance with their respective 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;
(c) The rights of Aladdin Gaming under the Aladdin Energy Documents,
the Coordination Agreement and the REA have not been assigned by Aladdin Gaming
except that the Aladdin Energy Documents and the rights of Aladdin Gaming under
the Guaranty, the REA and the Coordination Agreement have been assigned to the
Aladdin Lenders pursuant to the Aladdin Loan Documents, the Assignment of Gaming
Energy Documents and the Coordination Agreement and the rights of Aladdin Gaming
under the Development Agreement and the Guaranty have been assigned to Aladdin
Bazaar pursuant to the Coordination Agreement, subject to the rights of the
Aladdin Lenders under the Aladdin Loan Documents and the Assignment of Gaming
Energy Documents and this Agreement;
(d) No default or event of default on the part of Aladdin Gaming (or,
to the best of its knowledge, on the part of any other party thereto) exists
under the Aladdin Energy Documents, the Coordination Agreement, the Guaranty or
the REA with respect to matters relating to the Energy Project (nor has any
event occurred which, with the giving of notice and/or the passage of time,
would constitute an event of default thereunder) and the conditions precedent to
the effectiveness thereof have been fulfilled;
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(e) No Event of Default (as defined in the Aladdin Credit Agreement)
which would be material to the interests of Northwind or the Collateral Agent or
the Purchasers (as each such term is defined in the Note Purchase Agreement)
under the Aladdin Credit Agreement has occurred and is continuing;
(f) To the best of its knowledge, Aladdin Gaming has no offsets or
defenses to its obligations under the Aladdin Energy Documents or the REA with
respect to matters relating to the Energy Project; and
(g) To the best of its knowledge, Aladdin Gaming has no claims or
counterclaims against any other party with respect to the Aladdin Energy
Documents, the Guaranty or the REA with respect to matters relating to the
Energy Project.
(h) The conditions precedent set forth in clause (a) of Section 5.1 of
the Aladdin ESA which are conditions to the effectiveness of the Aladdin Energy
Documents have been satisfied or waived; and
(i) Aladdin Gaming has delivered to the Collateral Agent a copy of all
financial statements required by the Northwind Financing Documents, all of which
have been prepared in accordance with generally accepted accounting principles
consistently applied and present fairly the financial condition of Aladdin
Gaming as at the dates thereof and the results of their operations for the
periods then ended. All factual information which is set out in the Aladdin
Prospectus (as defined in the Note Purchase Agreement) or which has been made
available in writing to the Northwind Noteholders by or on behalf of Aladdin
Gaming is complete and correct in all material respects and does not contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements contained therein not materially misleading in
light of the circumstances under which such statements are made.
SECTION 1.3 Subordination, Nondisturbance and Attornment. (a) The Lease
and the leasehold estate created thereby are now and at all times shall continue
to be subject and subordinate to the Aladdin Deed of Trust and to any and all
increases, renewals, modifications, extensions, consolidations and replacements
thereof, including, without limitation, amendments which increase the amount of
the indebtedness secured by the Aladdin Deed of Trust.
(b) So long as Northwind or the Collateral Agent (or its designee or
nominee or Permitted Transferee (the "Northwind Purchaser")), as applicable, is
not in default beyond the expiration of any applicable notice or grace period
(as extended hereunder pursuant to Section 1.5) in the payment of rent or in the
performance of any of the other terms, covenants or conditions of the Lease or
so long as Northwind or the Collateral Agent or Northwind Purchaser shall be
exercising rights under Section 365(h)(l)(A)(ii) of the United States Bankruptcy
Code (or any similar provision under any applicable state law), neither the
Administrative Agent, its successors or assigns nor any other person acquiring
the Aladdin
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Property (each a "Purchaser") (i) in any foreclosure or any action or proceeding
(judicial or nonjudicial) instituted under or in connection with the Aladdin
Deed of Trust, (ii) by delivery of a deed or assignment given in lieu of
foreclosure, (iii) by order of the United States Bankruptcy Court or (iv)
otherwise, shall (x) in any way terminate the Lease or disturb Northwind's, the
Collateral Agent's, or any Northwind Purchaser's, as the case may be, use or
possession of the Energy Project Site or exercise of the Related Rights in any
foreclosure action or any other action or proceeding instituted under or in
connection with the Aladdin Deed of Trust and the Lease and the REA shall
continue in full force and effect and the Administrative Agent and each
Purchaser shall recognize Northwind's, the Collateral Agent's, or any Northwind
Purchaser's, as the case may be, rights thereunder or, so long as Northwind or
the Collateral Agent or Northwind Purchaser shall be exercising rights under
Section 365(h)(1)(A)(ii) of the United States Bankruptcy Code (or any similar
provision under any applicable state law), such rights, as though Northwind, the
Collateral Agent, or any Northwind Purchaser, as the case may be, were a party
to the REA and the Lease was a direct agreement between Northwind and the
Administrative Agent or such other Purchaser, as the case may be, or (y) join
Northwind as a party defendant in any foreclosure action or proceeding or other
action or proceeding in the nature of foreclosure instituted in connection with
the Aladdin Deed of Trust, except as may be required by law in the foreclosure
of the Property or with respect to adjudication of rights hereunder instituted
in connection with a foreclosure of the Aladdin Deed of Trust.
(c) If the interests of Aladdin Gaming under the Lease shall be
transferred to a Purchaser, Northwind shall be bound to the Purchaser, and the
Purchaser shall be bound to Northwind, in accordance with clause (d) of Section
1.3 below, under all of the terms, covenants and conditions of the Lease for the
balance of the term thereof remaining and any extensions and renewals thereof
which may be effected in accordance with any option therefor in the Lease with
the same force and effect as if the Purchaser were the landlord under the Lease;
provided, however, that the Purchaser shall not be:
(i) liable for any act or omission of or default by Aladdin
Gaming or any prior landlord under the Lease which has been cured by
the Administrative Agent or a Purchaser under Section 1.4 of this
Agreement or deemed waived by Northwind or, if applicable, the
Collateral Agent under Section 1.4 of this Agreement;
(ii) subject to any credits, claims, setoffs or defenses which
Northwind might have against Aladdin Gaming or any prior landlord under
the Lease as a result of any acts or omissions of Aladdin Gaming or any
prior landlord which has been cured by the Administrative Agent or a
Purchaser under Section 1.4 of this Agreement or deemed waived by
Northwind or, if applicable, the Collateral Agent under Section 1.4 of
this Agreement;
(iii) bound by any fixed rent, basic rent, additional rent or
other amounts which Northwind may have paid to Aladdin Gaming under the
Lease more than thirty days in advance of the month to which such
payments relate other than any payments
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of Base Rent (as defined in the Lease) required to be made upon the
signing of the Lease and all such prepaid rent and additional rent
shall remain due and owing without regard to such prepayment;
(iv) bound by any amendment or modification unless made in
accordance with Section 7.19, or (except by the terms of the Lease) any
cancellation of the Lease or (except by the terms of the Lease)
surrender of the Energy Project Site unless made in accordance with
Section 7.19.
(d) Northwind hereby agrees to attorn to the Purchaser, including the
Administrative Agent if it be the Purchaser, as its landlord, said attornment to
be effective and self-operative upon the Purchaser's succeeding to the interest
of Aladdin Gaming under the Lease and upon such attornment, the Purchaser shall
be bound to Northwind thereunder and the Purchaser and Northwind shall promptly
execute and deliver an instrument reasonably acceptable to each of them to
evidence such attornment. Upon the effective date of such attornment (x) the
Lease shall continue in full force and effect as a direct lease between
Northwind and the Purchaser, (y) the respective rights and obligations of
Northwind and the Purchaser as set forth in the Lease shall be the same as set
forth therein to the extent of the then remaining balance of the term of the
Lease and any extensions and renewals thereof and (z) such Purchaser shall
assume the obligations of the landlord under the Lease. Northwind acknowledges
and agrees that this Agreement satisfies and complies in all respects with all
provisions of the Lease (including, without limitation, Article 16 thereof)
requiring a non disturbance agreement in respect of the financing provided
pursuant to the Aladdin Credit Agreement and that this Agreement supersedes the
provisions of any such inconsistent provision and any other provision of the
Northwind Deed of Trust relating to the priority or subordination of the Lease
and the interests or estates created thereby to the Aladdin Deed of Trust.
SECTION 1.4 Administrative Agent's Cure Rights. (a) Except as otherwise
set forth in this Agreement, the parties hereto shall continue to look solely to
Aladdin Gaming (and its successors and assigns) for the performance of Aladdin
Gaming's obligations under the Aladdin Energy Documents and the REA with respect
to the Energy Project.
(b) Each of Northwind and the Collateral Agent acknowledge that Aladdin
Gaming has assigned to the Administrative Agent for the benefit of the Aladdin
Lenders (and their successors and assigns, including a Purchaser) all of Aladdin
Gaming's rights under the Aladdin Energy Documents, the Guaranty and the REA as
security for the Aladdin Credit Facility. Each of Northwind and the Collateral
Agent agree that the Administrative Agent or, if applicable, a Purchaser shall
be entitled to exercise all rights (including making demands and giving all
notices) of Aladdin Gaming under the Aladdin Energy Documents and the Guaranty
in accordance with the terms of the Assignment of Gaming Energy Documents upon
the Administrative Agent or Purchaser succeeding to Aladdin Gaming's interests
under the Aladdin Energy Documents (whether pursuant to foreclosure of the
Aladdin Deed of Trust or otherwise), and giving notice to Northwind and the
Collateral
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Agent that the Administrative Agent or, if applicable, a Purchaser is entitled
under the terms of the Assignment of Gaming Energy Documents to exercise such
rights, provided however, that any such exercise of rights or giving of notice
by the Administrative Agent (or its successors or assigns or a Purchaser), if
the Administrative Agent or Purchaser has not succeeded to the interests of
Aladdin Gaming under the Aladdin Energy Documents, shall not be deemed to be and
shall not be an assumption by the Administrative Agent (or its successors or
assigns or a Purchaser) of the obligations or liabilities of Aladdin Gaming
under the Aladdin Energy Documents, the Guaranty or the REA. Northwind and the
Collateral Agent, as applicable, shall accept such exercise and render all
performance due to Aladdin Gaming by it under the Aladdin Energy Documents and
the REA, as the case may be, to the Administrative Agent. The foregoing shall
include, without limitation, Aladdin Gaming 's approval rights in respect of gas
and electricity supply contracts under the Aladdin Energy Documents. Aladdin
Gaming hereby irrevocably authorizes Northwind and the Collateral Agent to
accept and act upon any such notice delivered by the Administrative Agent and
agrees that neither of Northwind nor the Collateral Agent shall be bound to
inquire into the authorization or legitimacy of the same.
(c) Each of Northwind and the Collateral Agent agrees that it will not
cancel, terminate or suspend its obligations under any of the Aladdin Energy
Documents or the REA on account of any default or breach by Aladdin Gaming
thereunder without first providing written notice to Aladdin Gaming and the
Administrative Agent and granting to the Administrative Agent (i) if such
default is the failure to pay amounts which are due and payable to Northwind
under the Aladdin Energy Documents, those rights and time periods granted to
Aladdin Gaming thereunder to cure such default plus an additional 10-day period
or (ii) in the case of any other breach or default, a reasonable opportunity,
but not fewer than 30 days, to cure such other breach or default by Aladdin
Gaming unless (x) such breach or default is of a nature which cannot be
reasonably cured within such 30 day period in which case the Administrative
Agent or, if applicable, a Purchaser shall have commenced to cure such breach or
default within such 30-day period and thereafter diligently pursues such cure
and achieves substantial completion with 150 additional days and, in each case,
shall continue to perform all monetary obligations under the Aladdin Energy
Documents and all other obligations of Aladdin Gaming thereunder which the
Administrative Agent is reasonably able to perform, (y) such breach or default
arises in connection with or after commencement of a bankruptcy or insolvency of
Aladdin Gaming in which case the provisions of clause (e) of Section 1.4 shall
apply and the Administrative Agent or, if applicable, the Purchaser continues to
perform all monetary obligations under the Aladdin Energy Documents and all
other obligations of Aladdin Gaming thereunder which the Administrative Agent,
or, if applicable, the Purchaser is reasonably able to perform or (Z) such
breach or default (1) is personal to Aladdin Gaming, (2) cannot be performed or
cured by the Administrative Agent or such Purchaser and (3) does not materially
and adversely affect the ability of Northwind or, if applicable, the Collateral
Agent from performing its obligations under the Aladdin Energy Documents or
interfere with the practical realization of the rights and benefits provided to
Northwind or the Collateral Agent by the Aladdin Energy Documents in which case
such breach or default by Aladdin Gaming shall be waived by Northwind or, if
applicable, the Collateral Agent; provided, however, that nothing in
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this clause (c) shall limit the rights of Aladdin Gaming or the Administrative
Agent, or the obligations of Northwind, as set forth in clause (c) of Section
6.1 of the Aladdin ESA; and further provided, however, that nothing in this
clause (c) shall limit the right of Northwind or, if applicable the Collateral
Agent to terminate the Aladdin Energy Documents if the breach or default is not
cured at the later of (x) the time permitted herein and (y) when entitled to do
so under the Aladdin Energy Documents.
(d) Each of Northwind and the Collateral Agent agrees to accept each
cure by the Administrative Agent or another Purchaser of a breach or default by
Aladdin Gaming which is performed in accordance with clause (c) of this Section
1.4 and each such cure (or, if applicable, any waiver under item (z) of clause
(c) of Section 1.4) shall be binding upon Northwind, the Collateral Agent and
their respective successors and assigns.
(e) In the event that (i) any of the Aladdin Energy Documents or the
REA is rejected by a trustee or debtor-in-possession in any bankruptcy or
insolvency proceeding involving Aladdin Gaming (such proceeding, an "Aladdin
Bankruptcy Proceeding"), the Administrative Agent or, if applicable, a Purchaser
shall execute and deliver to Northwind or, if applicable, the Collateral Agent
within 45 days after the Administrative Agent or such other Purchaser acquires
title to the Aladdin Property new Aladdin Energy Documents which shall be for
the balance of the remaining term under the original Aladdin Energy Documents
before giving effect to such rejection or termination. Such new Aladdin Energy
Documents shall contain the same conditions, agreements, terms, provisions and
limitations as the original Aladdin Energy Documents (except for any obligations
which have been performed by Aladdin Gaming prior to such rejection or
termination).
(f) If the interests of Aladdin Gaming under the Aladdin Energy
Documents shall be transferred to the Administrative Agent (or its successors or
assigns) or a Purchaser, the Administrative Agent (or its successors or assigns)
or such Purchaser shall be bound to Northwind, under all of the terms, covenants
and conditions of this Agreement and the Aladdin Energy Documents, the Guaranty
and the REA; provided however, that any such assumption shall only be made in
writing in an agreement acceptable in form and content to the Administrative
Agent or its successors or assigns or such Purchaser, as the case may be.
SECTION 1.5 Collateral Agent's Cure Rights. (a) Except as otherwise set
forth in this Agreement, the parties hereto shall continue to look solely to
Northwind (and its successors and assigns) for the performance of Northwind's
obligations under the Aladdin Energy Documents and the REA with respect to the
Energy Project and the Guarantor of its obligations under the Guaranty.
(b) Each of Aladdin Gaming and the Administrative Agent acknowledge
that Northwind has assigned to the Collateral Agent for the benefit of the
Northwind Noteholders (and their successors and assigns, including a Permitted
Transferee (as defined below)) all of Northwind's rights under the Aladdin
Energy Documents and the REA as security for the Northwind Financing Documents.
Each of Aladdin Gaming and the Administrative Agent
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agree that the Collateral Agent or, if applicable, a Permitted Transferee shall
be entitled to exercise all rights (including making demands and giving all
notices) of Northwind under the Aladdin Energy Documents and the REA in
accordance with the terms of the Northwind Financing Documents upon the
Collateral Agent succeeding to Northwind's interests under the Aladdin Energy
Documents (whether pursuant to foreclosure of the Northwind Deed of Trust or
otherwise) giving notice to Aladdin Gaming and the Administrative Agent that the
Collateral Agent or, if applicable, a Permitted Transferee is entitled under the
terms of the Northwind Financing Documents to exercise such rights, provided
however, that any such exercise of rights or giving of notice by the Collateral
Agent (or its successors and assigns, including a Permitted Transferee) shall
not be deemed to be and shall not be an assumption by the Collateral Agent (or
its successors and assigns, including a Permitted Transferee) of the obligations
or liabilities of Northwind under the Aladdin Energy Documents or the REA
Aladdin Gaming and the Administrative Agent, as applicable, shall accept such
exercise and render all performance due to Northwind under the Aladdin ESA and
the Bazaar ESA and the REA, as the case may be, to the Collateral Agent.
Northwind hereby irrevocably authorizes Aladdin Gaming and the Administrative
Agent to accept and act upon any such notice delivered by the Collateral Agent
and agrees that neither of Aladdin Gaming nor the Administrative Agent shall be
bound to inquire into the authorization or legitimacy of the same.
(c) Each of Aladdin Gaming and the Administrative Agent agrees that it
will not cancel, terminate or suspend its obligations under any of the Aladdin
Energy Documents or the REA on account of any default or breach by Northwind
thereunder without first providing written notice to Northwind and the
Collateral Agent and granting to the Collateral Agent (i) if such default is the
failure to pay amounts which are due and payable to Aladdin Gaming under the
Aladdin Energy Documents, those rights and time periods granted to Aladdin
Gaming thereunder to cure such default plus an additional 10-day period or (ii)
in the case of any other breach or default, a reasonable opportunity, but not
fewer than 30 days, to cure such other breach or default by Northwind unless (x)
such breach or default is of a nature which cannot be reasonably cured within
such 30 day period in which case the Collateral Agent or, if applicable, a
Permitted Transferee shall have commenced to cure such breach or default within
such 30-day period and thereafter diligently pursues and achieves substantial
completion with 150 additional days and, in each case, continues to perform all
monetary obligations under the Aladdin Energy Documents and all other
obligations of Northwind thereunder which the Collateral Agent is reasonably
able to perform, (y) such breach or default arises in connection with or after
commencement of a bankruptcy or insolvency of Northwind in which case the
provisions of clause (e) of this Section 1.5 shall apply and the Collateral
Agent or, if applicable, the Permitted Transferee continues to perform all
monetary obligations under the Aladdin Energy Documents and all other
obligations of Northwind thereunder which the Collateral Agent or, if
applicable, the Permitted Transferee is reasonably able to perform or (z) such
breach or default (1) is personal to Northwind, (2) cannot be performed or cured
by the Collateral Agent or, if applicable, a Permitted Transferee and (3) does
not materially and adversely affect the ability of Aladdin Gaming or, if
applicable, the Administrative Agent from performing its obligations under the
Aladdin Energy Documents or interfere with the practical realization of the
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rights and benefits provided to Aladdin Gaming or the Administrative Agent by
the Aladdin Energy Documents in which case such breach or default by Northwind
shall be waived by Aladdin Gaming or, if applicable, the Administrative Agent;
provided, however, that nothing in this clause(c) shall limit the rights of
Aladdin Gaming or the obligations of Northwind, as set forth in clause (c) of
Section 6.1. of the Aladdin ESA; and further provided, however, that nothing in
this clause (c) shall limit the right of Aladdin Gaming or, if applicable the
Administrative Agent to terminate the Aladdin Energy Documents if the breach or
default is not cured at the later of (x) the time permitted herein and (y) when
entitled to do so under the Aladdin Energy Document.
(d) Each of Aladdin Gaming and the Administrative Agent agrees to
accept each cure by the Collateral Agent or a Permitted Transferee of a breach
or default by Northwind which is performed in accordance with clause (c) of this
Section 1.5 and each such cure (and any waiver under item (z) of clause (c) of
this Section 1.5) shall be binding upon Aladdin Gaming, the Administrative
Agent, and their respective successors and assigns.
(e) In the event that (i) any of the Aladdin Energy Documents or the
REA is rejected by a trustee or debtor-in-possession in any bankruptcy or
insolvency proceeding involving Northwind (such proceeding, a "Northwind
Bankruptcy Proceeding"), Aladdin Gaming or the Administrative Agent, as
applicable, shall execute and deliver to the Collateral Agent or, if applicable,
the Permitted Transferee shall execute and deliver to Aladdin Gaming, or if
applicable, the Administrative Agent within 45 days after the Collateral Agent
or such Permitted Transferee acquires an interest in and to the Aladdin Energy
Documents new Aladdin Energy Documents which shall be for the balance of the
remaining term under the original Aladdin Energy Documents before giving effect
to such rejection or termination. Such new Aladdin Energy Documents shall
contain the same conditions, agreements, terms, provisions and limitations as
the original Aladdin Energy Document (except for any obligations which have been
performed by Northwind prior to such rejection or termination).
(f) The Collateral Agent shall have the right to transfer Northwind's
interest in the Aladdin Energy Documents and the interests of the Members (as
defined in the Note Purchase Agreement) in Northwind to a purchaser at a
foreclosure sale without the prior written consent of the Administrative Agent,
to an entity which (x) has (or has engaged an operator that has) the same or
similar technical expertise and experience in the field of the delivery of hot
water, chilled water and electricity as Northwind and substantially the same net
worth as the aggregate net worth of Northwind and Unicom Thermal Technologies,
Inc., an Illinois corporation, on the date hereof, (y) expressly assumes in
writing the obligations of Northwind under the Aladdin Energy Documents and (z)
has (or in the sole discretion of the Administrative Agent is reasonably likely
to obtain in a timely manner) all approvals, licenses and permits necessary to
operate the Energy Project as operated by Northwind. In addition to the
foregoing, the Collateral Agent shall have the right to transfer in lieu of
foreclosure Northwind's interest in the Aladdin Energy Documents and the
interests of the Members (as defined in the Note Purchase Agreement) in
Northwind to an entity only after (a) Aladdin Gaming has given its prior written
consent; provided however, that prior to
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giving such consent Aladdin Gaming shall obtain all necessary approvals
required in connection therewith, including the approval of the Administrative
Agent if required under the Aladdin Credit Agreement or (b) if the
Administrative Agent or its successors or assigns or a Purchaser has succeeded
to the interests of Aladdin Gaming, then only after the Administrative Agent or
its successors or assigns or such Purchaser has given its prior written consent;
provided, however, neither Aladdin Gaming nor the Administrative Agent or its
successors or assigns or a Purchaser shall unreasonably withhold or delay its
consent with respect to any such transfer to an entity (a "Permitted
Transferee") which (i) in the case of a transfer of Northwind's interest in the
Aladdin Energy Documents (A) has substantially the same net worth as the
aggregate net worth of Northwind and Unicom Thermal Technologies, Inc., an
Illinois corporation, on the date hereof and substantially the same or similar
technical expertise and experience in the field of the delivery of hot water,
chilled water and electricity as Northwind, (B) expressly assumes in writing the
obligations of Northwind under the Aladdin Energy Documents and (C) has (or in
the sole discretion of the Administrative Agent is reasonably likely to obtain
in a timely manner) all approvals, licenses and permits necessary to operate the
Energy Project as operated by Northwind, (ii) in the case of a transfer of the
interests of the Members in Northwind, has substantially the same net worth as
Unicom Thermal Technologies, Inc. on the date hereof and substantially the same
or similar technical expertise and experience in the field of the delivery of
hot water, chilled water and electricity as Northwind and (iii) in the case of a
transfer of Northwind's interest in the Aladdin Energy Documents to one or more
of the Northwind Noteholders, the Northwind Noteholders engage an operator
having substantially the same or similar technical expertise and experience in
the field of the delivery of hot water, chilled water and electricity as
Northwind and has (or in the sole discretion of the Administrative Agent is
reasonably likely to obtain in a timely manner) all approvals, licenses and
permits necessary to operate the Energy Project as operated by Northwind;
provided, however, that, in each case, any such assignment or sale shall be
subject to clause (c) of this Section 1.5. Upon such assignment and assumption,
the Northwind Noteholders and the Collateral Agent (including their agents and
employees) shall be released from any further liability thereunder (if any
liability has been assumed pursuant hereto) arising from and after the effective
date of such assignment to the extent of the interest so assigned.
(g) If the interests of Northwind under the Aladdin Energy Documents
shall be transferred to the Collateral Agent (or its successors or assigns,
including a Permitted Transferee), the Collateral Agent (or its successors or
assigns, including such Permitted Transferee) shall be bound to Aladdin Gaming,
under all of the terms, covenants and conditions of this Agreement and the
Aladdin Energy Documents, the Guaranty and the REA; provided however, that any
such assumption shall only be made in writing in an agreement acceptable in form
and content to the Collateral Agent or its successors or assigns, including a
Permitted Transferee, as the case may be.
SECTION 1.6 Insurance. Aladdin Gaming and Northwind agree that (a) all
insurance required by the terms of the Aladdin Energy Documents shall provide
that it may not be terminated or canceled without 30 days' prior written notice
to the Administrative
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Agent and (b) Aladdin Gaming and the Administrative Agent shall each be named as
an additional insured on all policies of liability insurance required by the
terms of the Aladdin Energy Documents.
SECTION 1.7 Certain Agreements of Aladdin Gaming. Aladdin Gaming agrees
that (a) it shall not exercise its rights under Section 9.2 of the Aladdin ESA
to require Northwind to remove its property from the Energy Project Site without
the prior written consent of the Administrative Agent and (b) it shall
immediately notify the Administrative Agent (i) upon any exercise of its right
to assume control of the Energy Project pursuant to clause (c) of Section 6.1 of
the Aladdin ESA and (ii) of any default by Northwind under the Aladdin Energy
Documents or of a default under the Guaranty and, in each case, Aladdin Gaming
shall provide such additional information with respect thereto as the
Administrative Agent or its consultants may request, including the opportunity
to inspect the Energy Project and participate in any decisions or actions taken
in connection therewith.
SECTION 1.8 Equipment. All of the parties hereto acknowledge that
Northwind is the sole owner of the Energy Project and certain related personal
property, machinery and equipment (the "Equipment") to be constructed, installed
and located at the Energy Project Site and on the Property, which will be
subject to a security interest of the Collateral Agent pursuant to the Northwind
Deed of Trust and the Northwind Security Agreement. The Administrative Agent
acknowledges for itself and the Aladdin Lenders that neither the Equipment on
the Project Site nor the Distribution System (as defined in the Note Purchase
Agreement) shall be subject to or encumbered by the Aladdin Deed of Trust
including, without limitation, where such Equipment or Distribution System is or
is deemed to be a fixture on the Aladdin Property or the Project Site and that
the security interest of the Collateral Agent granted pursuant to the Northwind
Deed of Trust and the Northwind Security Agreement in the Energy Project shall
encumber the Equipment and the Distribution System shall be encumbered thereby.
The Collateral Agent, for itself and on behalf of the Secured Parties (as
defined in the Note Purchase Agreement), covenants and agrees with the
Administrative Agent and the Aladdin Lenders that (x) so long as no event of
default by Aladdin Gaming under the Aladdin ESA exists (after the expiration and
application of applicable grace, notice and cure periods under the Aladdin ESA
and this Agreement) and (y) the Aladdin ESA (or any replacement thereof) remains
in effect (i) the exercise of remedies under the Northwind Financing Documents
during the existence of an event of default by Northwind under the Note Purchase
Agreement shall not affect, impair or limit the rights of Aladdin Gaming (or,
if applicable, the Administrative Agent or a Purchaser) under the Aladdin Energy
Documents or this Agreement including, without limitation, the rights set forth
in clause (c) of Section 6.1 of the Aladdin ESA and (ii) neither the Collateral
Agent nor any of the Secured Parties shall remove any material portion of the
Energy Project, the related personal property, machinery and equipment or the
Distribution System.
ARTICLE II
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BAZAAR ESA
SECTION 2.1 Representations Regarding Bazaar ESA. Northwind makes the
following representations and warranties to the other parties to this Agreement
as of the date hereof:
(a) The Bazaar ESA is unmodified and is in full force and
effect, has not been assigned by it except to the Collateral Agent for
the benefit of the Northwind Noteholders pursuant to the Northwind
Financing Documents, together with the REA and the Development
Agreement constitute the only agreements to which it is a beneficiary
or a party with Aladdin Bazaar with respect to the subject matter
thereof and its obligations under the Bazaar ESA are legal, valid and
binding obligations, 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;
(b) No default or event of default on its part (or, to the
best of its knowledge, on the part of any other party thereto) exists
under the Bazaar ESA (nor has any event occurred which, with the giving
of notice and/or the passage of time, would constitute an event of
default thereunder) and the conditions precedent to the effectiveness
thereof have been satisfied or waived;
(c) To the best of its knowledge, it has no offsets or
defenses to its obligations under the Bazaar ESA; and
(d) To the best of its knowledge, it has no claims or
counterclaims against any other party with respect to the Bazaar ESA.
ARTICLE III
NOTE PURCHASE AGREEMENT
SECTION 3.1 Consent of Administrative Agent to Certain Northwind
Financing Documents. The Administrative Agent hereby consents to the mortgage
and assignment of Northwind's rights under the Aladdin Energy Documents and the
REA to the Collateral Agent pursuant to the terms of the Northwind Deed of Trust
and the Northwind Security Agreement.
SECTION 3.2 Consent of Collateral Agent. The Collateral Agent hereby
acknowledges the lien of the Aladdin Deed of Trust on the Property (including,
without limitation, the Energy Project Site) and acknowledges that Aladdin
Gaming has obligations thereunder.
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SECTION 3.3 Confirmation by Aladdin Gaming. Aladdin Gaming hereby
confirms that (x) Northwind shall have those rights and obligations as a Party
(as defined in the REA) under the REA for the benefit of the Energy Project Site
as set out in Article 2 of the REA and (y) Northwind has assigned its right as a
party under the Aladdin Energy Documents and the REA to the Collateral Agent.
SECTION 3.4 Conditions to Advances. The funding condition in clause (t)
of Section 4.1 and clause (h) of Section 4.2 of the Note Purchase Agreement
shall, subject to the terms of the Note Purchase Agreement, be satisfied by the
delivery by Aladdin Gaming of the two certificates annexed hereto as,
respectively, Exhibit B-1 and Exhibit B-2 at the times required in said clause
(h).
SECTION 3.5 Arrangements Regarding Payments. For so long as any Note
(as defined in the Note Purchase Agreement) is outstanding Aladdin Gaming
irrevocably agrees that all payments to be made by Aladdin Gaming to Northwind
under any Aladdin Energy Documents shall be made in immediately available funds
in lawful money of the United States, directly to the revenue account (Account
No. 121766-001), at the office of State Street Bank and Trust Company, Two
International Place, Boston, MA 02110 or to such other Person and/or at such
other address as the Collateral Agent may from time to time specify in writing
to Aladdin Gaming for application by the Collateral Agent, and shall be
accompanied by a notice from Aladdin Gaming stating that such payments are to be
made to such designated account.
SECTION 3.6 Defaults Under Northwind Financing Documents. The
Collateral Agent covenants and agrees that the exercise of its rights and
remedies under the Northwind Financing Documents during the existence of a
default or event of default by Northwind thereunder shall not impair, affect or
limit the rights of Aladdin Gaming or, if applicable the Administrative Agent,
under the Aladdin Energy Documents including, without limitation, the rights set
forth in clause (c) of Section 6.1 of the Aladdin ESA or the right to terminate
the Aladdin Energy Documents if the breach or default is not cured at the later
of (x) the time permitted herein and (y) when entitled to do so under the
Aladdin Energy Documents..
SECTION 3.7 Amendments of Aladdin Loan Documents. Each of the parties
hereto covenants and agrees that from time to time without notice to or consent
of such party:
(a) the Aladdin Lenders and Aladdin Gaming may extend, amend,
modify, supplement, replace and/or renew the Aladdin Credit Facility,
the Credit Agreement the other Aladdin Loan Documents, and the
Assignment of Gaming Energy Documents, as the case may be;
(b) the Aladdin Lenders may increase the principal amount of
the Aladdin Credit Facility in accordance with the terms of the Aladdin
Credit Agreement;
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(c) the Aladdin Lenders may waive any of the terms, covenants
and conditions in the Aladdin Credit Agreement and the other Aladdin
Loan Documents, in whole or in part, and grant such indulgences and
releases in relation or with respect to the obligations evidenced and
secured by the Aladdin Credit Agreement and the other Aladdin Loan
Documents as the Administrative Agent and the Aladdin Lenders may
determine; and
(d) the Aladdin Lenders may exercise all rights, remedies and
options under the Aladdin Credit Agreement and the other Aladdin Loan
Documents and take any action which may affect all or a portion of the
Aladdin Project including, without limitation, (i) all self-help
remedies under the Aladdin Credit Agreement and the other Aladdin Loan
Documents, (ii) all rights (statutory or otherwise) relating to a sale
under power of sale, (iii) accepting a deed-in-lieu of foreclosure or
otherwise take title to the Property or (iv) appointing a receiver, in
each case under this clause (d), subject to Section 1.4;
provided however, that the exercise of such rights shall not diminish the rights
or increase the duties of any other party pursuant to this Agreement.
SECTION 3.8 Insurance and Condemnation Proceeds. Notwithstanding
anything to the contrary contained in the Northwind Deed of Trust, the Note
Purchase Agreement or any other Northwind Financing Document, while the
Collateral Agent may hold condemnation and insurance proceeds in accordance with
the Note Purchase Agreement, all such condemnation and insurance proceeds shall
be applied and distributed to Northwind and/or Aladdin Gaming in accordance with
the terms and provisions of the Aladdin Energy Documents and the REA.
ARTICLE IV
REA AND RELATED DOCUMENTS
SECTION 4.1 Representations. Aladdin Gaming and AMH (individually as to
itself and not with respect to one another) each makes the following
representations and warranties to each other and the other parties to this
Agreement that as of the date hereof:
(a) No default or event of default on its part (or, to the
best of its knowledge, on the part of any other party thereto) exists
under the REA or the "Site Work Agreement" or "Parking Use Agreement",
as such terms are defined in the REA, nor has any event occurred which,
with the giving of notice and/or the passage of time, would constitute
an event of default thereunder;
(b) The REA, the Site Work Agreement and the Parking Use
Agreement are unmodified and are in full force and effect, have not
been assigned by it, except as
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permitted hereby, constitute all the agreements to which it is a party
with respect to the subject matter thereof and its obligations
thereunder are its legal, valid and binding obligations;
(c) It has no offsets or defenses to its obligations under the
REA, the Site Work Agreement and the Parking Use Agreement, as
applicable; and
(d) It has no claims or counterclaims against any other party
with respect to the REA, the Site Work Agreement or the Parking Use
Agreement.
SECTION 4.2 Confirmation of Aladdin Gaming. Aladdin Gaming confirms
for the benefit of each of Northwind and the Northwind Noteholders that:
(a) the Performance Tests (as defined in the Development
Agreement) have been established pursuant to the Development Agreement
and are in the form set out in Schedule 2 hereto;
(b) receipt pursuant to Section 4(b) of the Development
Agreement of the Project Plan and the Plant Schedule (as each is
defined in the Development Agreement) and such plan and schedule are in
form and substance acceptable to Aladdin Gaming for the purposes of the
Development Agreement;
(c) receipt pursuant to Section 5(c) of the Development
Agreement of the Plant Plans and Specifications (as defined in the
Development Agreement) and confirms that such plans and
specifications are in form and substance acceptable to Aladdin Gaming
for the purposes of the Development Agreement;
(d) receipt pursuant to Section 7(b) of the Development
Agreement of the Quality Control and Inspection Program (as defined in
the Development Agreement) and that such program is in form and
substance acceptable to Aladdin Gaming for the purposes of the
Development Agreement;
(e) at the date of this Agreement the Substantial Completion
Deadline (as defined in the Development Agreement) is 25 March 2000;
(f) no Scope Change (as defined in the Development Agreement)
has been proposed, effected or implemented as of the date hereof as
envisaged in the Development Agreement;
(g) for all purposes under the Aladdin ESA and the Development
Agreement and, in particular, the provisions of Exhibit C of the
Aladdin ESA, each of the items specified in Schedule 3 to this
Agreement shall form part of the Investment in the Northwind Facilities
in the amounts specified in Schedule 3 or such other amounts incurred
by Northwind in respect of each specified item in Schedule 3.
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SECTION 4.3 Insurance. Aladdin Gaming and AMH agree that (a) all
insurance required by the terms of the REA shall provide that it may not be
terminated or canceled without 30 days' prior written notice to the
Administrative Agent and the Collateral Agent and (b) each Party (as defined in
the REA), the Administrative Agent and the Collateral Agent shall each be named
as an additional insured on all policies of insurance required by the terms of
the REA.
ARTICLE V
ALADDIN MUSIC
SECTION 5.1 Music ESA. Aladdin Music and Northwind each hereby
acknowledges and agrees as to itself that it shall enter into an energy service
agreement (the "Music ESA") with respect to the provisions of energy services in
accordance with Aladdin Music's need for such services (provided that amounts
payable in connection therewith that are attributable to capacity charges shall
not exceed 8% of the total capacity costs of the Energy Project as currently
designed or in such greater amounts as may be agreed to by each of the parties
hereto) to the Music Project, provided however, that at the time the Music ESA
is executed Aladdin Music is at least as creditworthy (ha the reasonable
judgement of Northwind and the Collateral Agent) as Aladdin Gaming with respect
to the Aladdin ESA or Aladdin Bazaar with respect to the Bazaar ESA as of the
date hereof; or, in the alternative, Northwind agrees to enter into modified
versions of the Aladdin ESA and the Bazaar ESA, pursuant to which 8% of such
capacity shall be transferred to Aladdin Bazaar, with Aladdin Gaming being
released from its obligations in connection therewith; provided, however, that
at the time the modified versions of the Aladdin ESA and the Bazaar ESA are
entered into Aladdin Bazaar is at least as creditworthy (in the reasonable
judgment of Northwind and the Collateral Agent) with respect to the modified
Bazaar ESA as Aladdin Gaming with respect to the Aladdin ESA as of the date
hereof. Aladdin Music and Northwind agree that such Music ESA or said modified
versions of the Aladdin ESA and the Bazaar ESA shall be in form and substance
substantially similar to the Bazaar ESA and the Aladdin ESA, that, if
applicable, Aladdin Music shall become a party to the Coordination Agreement and
the Music ESA and any such amendment or modification of the Coordination
Agreement joining Aladdin Music as a party thereto shall be subject to the prior
written reasonable approval of the Collateral Agent and the Administrative
Agent.
ARTICLE VI
DEFAULTS
SECTION 6.1 Defaults. If any party hereto fails to perform its
obligations hereunder after the expiration of any applicable grace, notice or
cure periods, at all times thereafter and
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until such time as the defaulting party has performed its obligations, the
non-defaulting parties shall have all rights, remedies and options at law and in
equity.
ARTICLE VII
GENERAL PROVISIONS
SECTION 7.1 Due Execution. Each of the parties hereto represents that
this Agreement (a) has been duly authorized by all necessary action on the part
of such party, (b) has been duly executed and delivered by such party and (c)
constitutes the legal, valid and binding obligation of such party enforceable
against such party in accordance with its terms (except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally and by principles of equity).
SECTION 7.2 As to Aladdin Gaming and Administrative Agent. As between
Aladdin Gaming and the Administrative Agent, Aladdin Gaming and the
Administrative Agent covenant and agree that nothing herein shall be deemed or
construed to modify the Aladdin Loan Documents or constitute a waiver of
acceptance of any course of conduct thereunder by the Administrative Agent.
SECTION 7.3 Remedies. (a) The Administrative Agent (or its designee or
nominee) may exercise all rights and remedies hereunder either in person or by
agent and Aladdin Gaming shall not impair the exercise thereof by the
Administrative Agent whether under this Agreement, the Aladdin Energy Documents,
the REA or the Northwind Financing Documents. Neither the exercise of any
rights, remedies or options hereunder nor the commission of any other act by the
Administrative Agent pursuant to this Agreement shall be deemed to cure or waive
any default, or to waive, modify or affect any notice of default under the
Aladdin Credit Agreement or the other Aladdin Loan Documents, or to invalidate
any act done pursuant to such notice.
(b) The Collateral Agent (or its designee or nominee) may exercise all
rights and remedies hereunder either in person or by agent and Northwind shall
not impair the exercise thereof by the Collateral Agent whether under this
Agreement, the Aladdin Energy Documents, the REA or the Northwind Financing
Documents. Neither the exercise of any rights, remedies or options hereunder nor
the commission of any other act by the Collateral Agent pursuant to this
Agreement shall be deemed to cure or waive any default, or to waive, modify or
affect any notice of default under the Note Purchase Agreement or the other
Northwind Financing Documents, or to invalidate any act done pursuant to such
notice.
SECTION 7.4 No Obligation of Aladdin Lenders. (a) Neither the Aladdin
Lenders nor the Administrative Agent shall be obligated to perform or discharge,
nor do they hereby undertake to perform or discharge, any obligation, duty or
liability of Aladdin Gaming under
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the Aladdin Energy Documents, the Bazaar Ground Lease, the Northwind Financing
Documents or this Agreement, except in accordance with this Agreement. Should
the Administrative Agent, individually or on behalf of the Aladdin Lenders,
incur any loss, cost, claim, demand, expense, liability or damage under the
Aladdin Energy Documents, the Guaranty, the Bazaar Ground Lease, the Northwind
Financing Documents, the REA or this Agreement, or in the defense against any
claims or demands, the amount thereof, including reasonable costs and expenses
and reasonable attorneys' fees, together with interest thereon at the rate set
forth in Section 3.2.2 of the Aladdin Credit Agreement, shall be secured by the
Aladdin Loan Documents, and Aladdin Gaming shall reimburse the Administrative
Agent therefor immediately upon demand. Aladdin Gaming acknowledges that the
provisions of Section 10.4 of the Aladdin Credit Agreement shall apply to this
Agreement.
(b) Neither the Northwind Noteholders nor the Collateral Agent shall be
obligated to perform or discharge, nor do they hereby undertake to perform or
discharge, any obligation, duty or liability of Northwind under the Aladdin
Energy Documents, the Northwind Financing Documents or this Agreement, except in
accordance with this Agreement. Should the Collateral Agent, individually or on
behalf of the Northwind Noteholders, incur any loss, cost, claim, demand,
expense, liability or damage under the Aladdin Energy Documents, the Northwind
Financing Documents, the REA or this Agreement, or in the defense against any
claims or demands, the amount thereof, including reasonable costs and expenses
and reasonable attorneys' fees, together with interest thereon at the rate set
forth in Section____ of the Note Purchase Agreement, shall be secured by the
Northwind Financing Documents, and Northwind shall reimburse the Collateral
Agent therefor immediately upon demand.
SECTION 7.5 Title of Sections. The titles of the sections of this
Agreement are for convenience and reference only, and the words contained
therein shall in no way be held to explain, modify, amplify or aid in the
interpretation, construction or meaning of the provisions of this Agreement.
SECTION 7.6 Notices. Any notice, request, demand, statement,
authorization, approval or consent made hereunder shall be in writing and shall
be by Federal Express, or other reputable courier service, or by postage
pre-paid registered or certified mail, return receipt requested, and shall be
deemed given when received or refused (as indicated on the receipt) and
addressed as follows or as any party may specify in writing to each other party
hereto:
IF TO ADMINISTRATIVE AGENT:
The Bank of Nova Scotia
580 California Street, 21st Floor
San Francisco, CA 94104
Attn: Alan W. Pendergast
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IF TO ALADDIN GAMING:
Aladdin Gaming, LLC
831 Pilot Road
Las Vegas, NV 89119
Attn: Richard Goeglein
President and Chief Executive Officer
IF TO NORTHWIND:
Northwind Aladdin, LLC
c/o UT Holdings, Inc.
30 W. Monroe Street
Suite 500
Chicago, IL 60603
Attn: General Manager
IF TO THE COLLATERAL AGENT:
State Street Bank and Trust Company
2 International Plaza
Boston, Massachusetts 02110
Attn: Corporate Trust Department
IF TO ALADDIN BAZAAR:
Aladdin Bazaar, LLC
c/o TH Bazaar Centers, Inc.
4350 La Jolla Village Drive, Suite 400
San Diego, California 92122
Attn: Legal Department
with a copy to:
Aladdin Bazaar Holdings, LLC
831 Pilot Road
Las Vegas, Nevada 89119
Attn: Ronald Dictrow
IF TO ALADDIN MUSIC:
Aladdin Music, LLC
831 Pilot Road
Las Vegas, NV 89119
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Attn: Richard Goeglein
IF TO AMH:
Aladdin Music Holdings, LLC
831 Pilot Road
Las Vegas, NV 89119
Attn: Richard Goeglein
SECTION 7.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7.8 Provisions Binding. The terms and provisions hereof shall
be binding upon and shall inure to the benefit of the successors and permitted
assigns, respectively, of the Administrative Agent, Northwind, Aladdin Gaming,
the Collateral Agent, Aladdin Music and AMH. This Agreement may not be modified
or amended except by an agreement in writing signed by the parties hereto. This
Agreement and the terms, covenants, conditions and agreements set forth herein
shall run with the land and shall be binding upon and inure to the benefit of
the Administrative Agent, Aladdin Gaming, Northwind, the Collateral Agent,
Aladdin Music and AMH.
SECTION 7.9 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited or be
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
SECTION 7.10 No Waiver. Any failure on the part of any party hereto to
promptly exercise any right given or reserved hereby or by any other document to
which it is a party or beneficiary shall not prevent the exercise of any such
right at any time thereafter. Except as set forth herein, each party hereto may
pursue and enforce any remedy or remedies accorded herein independently of, or
in conjunction or concurrently with, or subsequent to its pursuit and
enforcement of, any remedy or remedies which it may otherwise have against any
other party hereto. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law.
SECTION 7.11 No Partnership or Joint Venture. Any provision hereof to
the contrary notwithstanding, the Aladdin Lenders, the Northwind Noteholders and
the parties hereto, by virtue of the issuance of this Agreement or any action
taken pursuant hereto or contemplated hereby, shall not be deemed to be a
partner or joint venturer with one another.
SECTION 7.12 Survival of Representations and Warranties. All
representations and warranties of any party hereto contained in this Agreement
shall survive the execution and delivery of this Agreement. This Agreement shall
survive the exercise and enforcement of
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remedies under the Aladdin Credit Agreement, the other Aladdin Loan Documents,
the Note Purchase Agreement and the Northwind Financing Documents until such
time as the parties have performed their obligations hereunder in all material
respects.
SECTION 7.13 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED
BY LAW ANY RIGHTS IT MAY RAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN) OR ACTIONS OF ANY PARTY HERETO IN CONNECTION HEREWITH OR THEREWITH.
EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF THIS
AGREEMENT) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES
HERETO ENTERING INTO THIS AGREEMENT.
SECTION 7.14 Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL
OR WRITTEN) OR ACTIONS OF THE PARTIES HERETO IN CONNECTION HEREWITH OR THEREWITH
SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW
YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK. EACH OF THE PARTIES HERETO HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE
PERSONAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF
ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY
JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. CT CORPORATION
SYSTEM (THE "PROCESS AGENT"), WITH AN OFFICE ON THE DATE HEREOF AT 1633
BROADWAY, NEW YORK, NEW YORK 10019, HAS BEEN APPOINTED BY EACH OF THE PARTIES
HERETO (OTHER THAN THE ADMINISTRATIVE AGENT) TO BE ITS AGENT TO RECEIVE, ON ITS
BEHALF AND ON BEHALF OF ITS PROPERTY, SERVICE OF COPIES OF THE SUMMONS AND
COMPLAINT AND ANY OTHER PROCESS WHICH MAY BE SERVED IN ANY SUCH ACTION OR
PROCEEDING. SUCH SERVICE MAY BE MADE BY MAILING OR DELIVERING A COPY OF SUCH
PROCESS TO EACH PARTY (OTHER THAN THE ADMINISTRATIVE AGENT) HERETO IN CARE OF
THE PROCESS AGENT AT THE PROCESS AGENT'S ABOVE ADDRESS, AND EACH PARTY WHICH HAS
DESIGNATED THE PROCESS AGENT TO ACCEPT PROCESS FOR EACH PARTY HEREUNDER HEREBY
IRREVOCABLY AUTHORIZES AND DIRECTS THE PROCESS AGENT TO ACCEPT SUCH
-24-
SERVICE ON ITS BEHALF. IN ADDITION TO THE FOREGOING, EACH PARTY IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE ADDRESS FOR
NOTICES SPECIFIED IN SECTION 8.6. EACH PARTY HERETO HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY
PARTY HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT
OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR
TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF
OR ITS PROPERTY, SUCH PARTY HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT
PERMITTED BY LAW SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT, THE ALADDIN CREDIT AGREEMENT, THE OTHER ALADDIN LOAN DOCUMENTS, THE
NOTE PURCHASE AGREEMENT AND THE OTHER NORTHWIND FINANCING DOCUMENTS.
SECTION 7.15 No Third Party Beneficiaries. The provisions of this
Agreement are for the benefit of the parties hereto and their successors and
assigns and no provision hereof is intended to benefit or inure to the benefit
of any other person.
SECTION 7.16 Counterparts. This Agreement may be executed in two or
more counterparts, all of which when taken together shall constitute one and the
same instrument.
SECTION 7.17 Claims. No claims may be made by any of the parties hereto
or any other person against any of the other parties hereto or any affiliate of
the foregoing, or the officers, directors, employees, attorneys, consultants or
agents of any of them, for consequential or punitive damages in respect of any
claim for breach of contract or any other theory of liability arising out of or
related to the transactions contemplated by this Agreement, or an act, omission,
or event occurring in connection therewith; and parties hereto each for itself
and for all persons claiming by, through and under each of them, waives,
releases, and agrees not to sue upon any claim for any such damages, whether or
not accrued and whether or not known or suspected to exist in its favor.
SECTION 7.18 Recording. The parties hereto agree to execute,
acknowledge and deliver this Agreement for recordation in the official records
of Clark County, Nevada.
SECTION 7.19 Amendments. Without, in each case, the prior written
consent of each of the parties hereto, which consent shall not be unreasonably
withheld or delayed, each of the parties hereto covenants and agrees that the
Aladdin Energy Documents, the Bazaar
-25-
ESA, the Guaranty, the REA, and, after the Music ESA has been approved by the
Collateral Agent and the Administrative Agent, the Music ESA shall not be
amended, modified, supplemented or terminated (except as permitted therein and
herein).
SECTION 7.20 Estoppels. Each party under this Agreement shall have the
right to request each other party to this Agreement to deliver its estoppel
certificate certifying to the matters set forth in this Agreement which are
applicable to the certifying party within ten (10) days after request therefor;
provided, however, that in no event shall any party be required to provide any
instrument or certificate as described in this Section 7.20 more than twice in
any twelve month period.
SECTION 7.21 Notices. Each of the parties hereto covenants and agrees
to give to each of the other parties hereto a copy of all notices given by it to
another party pursuant to this Agreement, the Aladdin Energy Documents or the
Bazaar ESA, as the case may be, at such time as it gives such notice to such
other party which notices shall be given in the manner set forth in Section 7.6
hereof together with all written information included with such notice.
SECTION 7.22 Limitation of Liability. In the event that any party
assumes any liability of any other party under the Aladdin Energy Documents,
liability and recourse in respect of any and all obligations of any party
thereunder shall be limited solely to such party's interest in the Aladdin
Project, the Mall Project, the Music Project, and the Energy Project (and no
officer, director, employee, shareholder or agent thereof shall have any
liability with respect thereto).
-26-
IN WITNESS WHEREOF, the parties have hereunto set their respective
hands as of the day, month and year first above written.
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By:
----------------------------
Name:
Title:
NORTHWIND ALADDIN, LLC
By:____________________________
Name:
Title:
ALADDIN GAMING, LLC
By:____________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
as Collateral Agent
By:____________________________
Name:
Title:
ALADDIN MUSIC HOLDINGS, LLC
By:____________________________
Name:
Title:
THE STATE OF ________ )
) ss.
COUNTY OF ___________ )
This instrument was acknowledged before me on ___________, 1999, by
_______________, ____________ of The Bank of Nova Scotia on behalf of said
bank.
(SEAL)
________________________________________
Notary Public, State of_________________
THE STATE OF Illinois )
) ss.
COUNTY OF Cook )
This instrument was acknowledged before me on June 3, 1999, by
___________ of Northwind Aladdin, LLC, a Nevada limited-liability Company, on
behalf of said company.
(SEAL) [SEAL]
- -----------------------------------------
Notary Public, State of _________________
THE STATE OF Nevada )
) ss.
COUNTY OF Clark )
This instrument was acknowledged before me on 6/4 ,1999, by _________
of Aladdin Gaming , LLC, a Nevada limited-liability company, on behalf of said
company.
(SEAL) [SEAL]
- -----------------------------------
Notary Public, State of Nevada
THE STATE OF _______________ )
) ss.
COUNTY OF __________________ )
This instrument was acknowledged before me on ____________, 1999, by
_____________, ________________ of State Street Bank and Trust Company, on
behalf of said bank.
(SEAL)
_______________________________
Notary Public, State of _______
THE STATE OF Nevada )
) ss.
COUNTY OF Clark )
This instrument was acknowledged before me on 6/4, 1999, by ___________
of Aladdin Music Holdings, LLC, a ________ limited liability company, on behalf
of said company.
(SEAL) [SEAL]
- -----------------------------------
Notary Public, State of Nevada
THE STATE OF Nevada )
) ss.
COUNTY OF Clark )
This instrument was acknowledged before me on 6/4, 1999, by ___________
of Aladdin Music, LLC, a _____ limited liability company, on behalf of said
company.
(SEAL) [SEAL]
- ---------------------------------
Notary Public, State of Nevada
THE STATE OF ____________ )
) ss.
COUNTY OF _______________ )
This instrument was acknowledged before me on _____________, 1999, by
__________________________, ________________ of Aladdin Gaming. LLC, a Nevada
limited-liability company, on behalf of said company.
(SEAL)
_____________________________________
Notary Public, Sate of ______________
COMMONWEALTH OF Mass )
) ss.
COUNTY OF Soffoik )
This instrument was acknowledged before me on June 3, 1999, by
__________, Vice President of state Street Bank and Trust Company, on behalf of
said bank.
(SEAL)
- -----------------------------------
Notary Public, State of [ILLEGIBLE]
My commission expires 7/8/99.
TABLE OF CONTENTS
Page
----
ARTICLE I
ALADDIN ENERGY DOCUMENTS
SECTION 1 1 Representations by Northwind ................................................. 4
SECTION 1.2 Representations of Aladdin Gaming ............................................ 5
SECTION 1.3 Subordination, Nondisturbance and Attornment ................................. 6
SECTION 1 4 Administrative Agent's Cure Rights .......................................... 8
SECTION 1.5 Collateral Agent's Cure Rights ............................................... 10
SECTION 1 6 Insurance .................................................................... 13
SECTION 1.7 Certain Agreements of Aladdin Gaming ......................................... 14
SECTION 1.8 Equipment .................................................................... 14
ARTICLE II
BAZAAR ESA
SECTION 2.1 Representations Regarding Bazaar ESA ......................................... 15
ARTICLE III
NOTE PURCHASE AGREEMENT
SECTION 3.1 Consent of Administrative Agent to Certain Northwind Financing Documents ..... 15
SECTION 3 2 Consent of Collateral Agent .................................................. 15
SECTION 3.3 Confirmation by Aladdin Gaming ............................................... 16
SECTION 3 4 Conditions to Advances ....................................................... 16
SECTION 3.5 Arrangements Regarding Payments .............................................. 16
SECTION 3.6 Defaults Under Northwind Financing Documents ................................. 16
SECTION 3.7 Amendments of Aladdin Loan Documents ......................................... 16
SECTION 3.8 Insurance and Condemnation Proceeds .......................................... 17
ARTICLE IV
REA AND RELATED DOCUMENTS
SECTION 4.1 Representations .............................................................. 17
SECTION 4.2 .............................................................................. 18
SECTION 4.3 Insurance .................................................................... 19
Page
----
ARTICLE V
ALADDIN MUSIC
SECTION 5.1 Music ESA .................................................................... 19
ARTICLE VI
DEFAULTS
SECTION 6.1 Defaults ..................................................................... 19
ARTICLE VII
GENERAL PROVISIONS
SECTION 7.1 Due Execution ................................................................ 20
SECTION 7.2 As to Aladdin Gaming and Administrative Agent ................................ 20
SECTION 7.3 Remedies ..................................................................... 20
SECTION 7.4 No Obligation of Aladdin Lenders ............................................. 20
SECTION 7.5 Title of Sections ............................................................ 21
SECTION 7.6 Notices ...................................................................... 21
SECTION 7.7 Governing Law ................................................................ 23
SECTION 7.8 Provisions Binding ........................................................... 23
SECTION 7.9 Severability ................................................................. 23
SECTION 7.10 No Waiver .................................................................... 23
SECTION 7.11 No Partnership or Joint Venture .............................................. 23
SECTION 7.12 Survival of Representations and Warranties ................................... 23
SECTION 7.13 Waiver of Jury Trial ......................................................... 24
SECTION 7.14 Forum Selection and Consent to Jurisdiction .................................. 24
SECTION 7.15 No Third Party Beneficiaries ................................................. 25
SECTION 7.16 Counterparts ................................................................. 25
SECTION 7.17 .............................................................................. 25
Claims .............................................................................. 25
SECTION 7.18 Recording .................................................................... 25
SECTION 7.19 Amendments ................................................................... 25
SECTION 7.20 Estoppels .................................................................... 26
SECTION 7.21 .............................................................................. 26
SECTION 7.22 .............................................................................. 26