EXHIBIT 10.05
CONSENT AND RATIFICATION AND REAFFIRMATION AGREEMENT
THIS CONSENT AND RATIFICATION AND REAFFIRMATION AGREEMENT
(this "AGREEMENT"), dated as of May 27, 1999, is made between by THE BANK OF
NOVA SCOTIA, in its capacity as the Administrative Agent for the Lenders (in
such capacity, the "ADMINISTRATIVE AGENT") and ALADDIN GAMING LLC (the
"BORROWER"). Capitalized terms used herein but not otherwise defined shall have
the meanings assigned thereto in the Credit Agreement (as hereinafter defined).
W I T N E S S E T H :
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WHEREAS, pursuant to a Credit Agreement, dated as of February 26,
1998, as amended by the 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 (together with all other
amendments and other modifications from time to time thereafter made thereto,
collectively, the "CREDIT AGREEMENT"), each among the Borrower, the various
lending institutions (individually a "LENDER" and collectively the "LENDERS")
as are, or may from time to time become, parties thereto, the Administrative
Agent, CIBC Oppenheimer Corp., as the documentation agent, and Merrill Lynch
Capital Corporation as the syndication agent, the Lenders extended
Commitments to make Loans to the Borrower and to issue Letters of Credit for
the account of the Borrower; and
WHEREAS, pursuant to that certain Subordination, Non-Disturbance and
Attornment Agreement and Consent (the "ALADDIN SNDA") dated as of June 7,
1999, between the Administrative Agent, Northwind Aladdin, LLC, a Nevada
limited-liability company ("NORTHWIND"), the Borrower, State Street Bank and
Trust Company, as collateral agent, Aladdin Music, LLC, Aladdin Music
Holdings, LLC, and Unicom Corporation, as guarantor, the parties thereto set
forth certain agreements regarding their respective rights vis-a-vis one
another in connection with the financing, development and use of the Aladdin
Project and the Energy Project (as such terms are defined below);
WHEREAS, the Borrower, 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, and that certain Third
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 the Borrower leased the Energy Project Site to Northwind, subject to
the terms thereof; and
WHEREAS, pursuant to that certain Development Agreement dated as of
December 3, 1997 between the Borrower 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
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power, hot water and chilled water for the hotel/casino (the "ALADDIN PROJECT")
that is being constructed by the Borrower, the retail project that is being
constructed by Aladdin Bazaar LLC ("ALADDIN BAZAAR") and the addition hotel
project that may be constructed by Aladdin Music LLC; and
WHEREAS, pursuant to that certain Energy Services Agreement dated as
of September 24, 1998 between the Borrower and Northwind as amended by the
Amendments (as so amended, the "ALADDIN ESA", and together with the Lease,
the Development Agreement, and the Aladdin SNDA, 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; and
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 energy services agreement which has been executed and delivered by
Aladdin Bazaar; and
WHEREAS, the Borrower has requested the Administrative Agent to
consent to the execution and delivery of the Aladdin Energy Documents by the
Borrower and the Administrative Agent has agreed to do so, subject to the
terms of this Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower and the Administrative Agent agree as follows:
1. CONSENT. The Administrative Agent hereby consents to the
execution and delivery of the Aladdin Energy Documents by Borrower; PROVIDED
HOWEVER, that the Aladdin ESA shall be in the form annexed hereto as Exhibit
A, the Coordination Agreement shall be in the form annexed hereto as Exhibit
B, and the Aladdin SNDA shall be in the form attached hereto as Exhibit C.
2. BORROWER REPRESENTATIONS AND WARRANTIES. As an inducement to the
Administrative Agent to deliver this Consent, the Borrower represents and
warrants to the Administrative Agent that:
a. POWERS AND AUTHORITY. The Borrower has the power and authority to
enter into and perform, and has taken all necessary action to duly authorize
its entry into, performance and delivery of, the Aladdin Energy Documents and
the Coordination Agreement.
b. COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC. The execution,
delivery and performance by the Borrower of the Aladdin ESA and the
Coordination Agreement will not (i) contravene, result in any breach of, or
constitute a default under, or result in the creation of any Lien in respect
of any property of the Borrower under, any indenture, mortgage, deed of
trust, loan, purchase or credit agreement, lease, memorandum or articles of
association, any other
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material agreement or instrument to which the Borrower is bound or by which
the Borrower or any of its properties may be bound or affected, (ii) conflict
with or result in a breach of any of the terms, conditions or provisions of
any order, judgment, decree, or ruling of any court, arbitrator or
Governmental Authority applicable to the Borrower or (iii) violate any
provision of any statute or other rule or regulation of any Governmental
Authority applicable to the Borrower.
c. GOVERNMENTAL CONSENT. The entry into and the performance,
validity and enforceability of the Aladdin ESA and the Coordination Agreement
and the transactions contemplated thereby does not require any authorization,
consent, approval, exemption or other action by or notice to or filing,
registration or declaration with, any court or administrative body or other
Governmental Authority in connection with the execution and delivery of the
Aladdin Energy Documents or the Coordination Agreement, or fulfillment of or
compliance with the terms and provisions hereof.
d. LEGAL VALIDITY. The Aladdin ESA and the Coordination Agreement
constitute the legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its respective terms,
except as such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally and (b) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
e. NO OFFSETS OR DEFENSES. To its knowledge, the Borrower has no
offsets or defenses to its obligations under the Loan Documents and no claims
or counterclaims against the Administrative Agent and the Lender Parties
thereunder.
f. NO DEFAULTS. The Loan Documents are in full force and effect,
there are no Events of Defaults by the Borrower thereunder and no event has
occurred or failed to occur which, with the giving of notice and/or the
passage of time, could constitute an Event of Default thereunder.
3. RATIFICATION AND REAFFIRMATION. The Borrower hereby ratifies and
reaffirms the Loan Documents and each and every covenant and agreement of the
Borrower contained therein.
4. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
5. HEADINGS. The descriptive headings of the several paragraphs of
this Agreement are inserted for convenience only and do not constitute a part
of this Agreement.
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6. COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, and it
shall not be necessary in making proof of this Agreement to produce or
account for more than one such counterpart.
IN WITNESS whereof the Administrative Agent and the Borrower have
caused this Agreement to be executed as of the day and year first above
written.
THE BANK OF NOVA SCOTIA, as the
Administrative Agent
By: /S/ Alan Pendergast
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Name: Alan Pendergast
Title: Relationship Manager
ALADDIN GAMING, LLC
By: /S/ Richard Goeglein
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Name: Richard Goeglein
Title: President and Chief Executive Officer
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By signing below, the Guarantors (w) ratify and reaffirm
the Loan Documents to which they are a party, (x)
acknowledge that to their respective knowledge they
have no offsets or defenses to their respective
obligations under the Loan Documents to which they are
a party and no claims or counterclaims against the
Administrative Agent or the Lenders and (z) consent to
the execution and delivery of the Aladdin ESA and the
Coordination Agreement by the Borrower; PROVIDED,
HOWEVER, the aforementioned consent shall not affect
any of the rights and obligations of any of the parties
to the Loan Documents whether existing on the date
hereof or hereafter arising in accordance with the
terms of the applicable Loan Documents.
ALADDIN BAZAAR HOLDINGS, LLC
By: /S/ Ronald Dictrow
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Name: Ronald Dictrow
Title: Secretary/Treasurer
THE TRUST UNDER ARTICLE SIXTH
UNDER THE WILL OF SIGMUND SOMMER
By: /S/ Viola Sommer , in its
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capacity as a trustee and not individually
Name: Viola Sommer
Title: Trustee
By: /S/ Jack Sommer , in its
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capacity as a trustee and not individually
Name: Jack Sommer
Title: Trustee
LONDON CLUBS INTERNATIONAL PLC
By: /S/ G. Barry C. Hardy
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Name: G. Barry C. Hardy
Title: Chief Operating Officer
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EXHIBIT A
Form of Aladdin ESA
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EXHIBIT B
Form of Coordination Agreement
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EXHIBIT C
Form of Aladdin SNDA
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