EXHIBIT 10.02
SECOND AMENDMENT AND AGREEMENT
This Second Amendment and Agreement (hereinafter the
"Amendment") is made and entered into as of the 28th day of May, 1999 between
Northwind Aladdin, LLC, a Nevada limited-liability company ("Northwind") and
Aladdin Gaming, LLC, a Nevada limited-liability company ("Aladdin").
WITNESSETH:
WHEREAS, Northwind and Aladdin are parties to (i) that
certain Lease dated as of December 3, 1997 ( the "Lease"), (ii) that certain
Development Agreement dated as of December 3, 1997 (the "Development
Agreement"), and (iii) that certain Energy Service Agreement dated as of
September 24, 1998 (the "Energy Service Agreement", and, collectively with
the Lease and the Development Agreement, the "Agreements"); and
WHEREAS, the Agreements contemplate that Northwind will
construct and operate the "Northwind Facilities" (as such term is defined in
the Energy Service Agreement) to provide hot water, chilled water and
electricity services to Aladdin, including construction and operation of
certain facilities to generate electricity; and
WHEREAS, the parties on September 25, 1998 executed an
Amendment and Agreement to the Agreements ("Amendment No. 1") providing that
is shall not be necessary for the Northwind Facilities to construct or
operate facilities for generating electricity; and
WHEREAS, the parties have determined that is shall be
necessary for Northwind to construct and operate facilities for generating
"Emergency Power" (as such term is defined herein below), and accordingly the
parties desire to amend the Agreements to reflect such determination;
WHEREAS, the parties also have determined that is shall be
necessary to clarify the definition of "Investment in the Northwind
Facilities," and accordingly the parties desire to amend the Energy Service
Agreement accordingly.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, it is hereby agreed between Northwind and
Aladdin as follows:
1. Any capitalized term in this Amendment that is not defined
herein shall have the meaning specified or referred to in
Annex A to the Energy Service Agreement.
2. The definition of "Development Costs" in Annex A to the Energy
Service Agreement is hereby deleted and replaced with the
following:
"DEVELOPMENT COSTS" means the aggregate of: (a) all costs and expenses
of the Supplier, the Customer and Music incurred prior to December 3,
1997 for outside engineering work in connection with the design and
construction of the Northwind Facilities and the matters set forth
in this Agreement and the Related Agreements and the documentation
thereof; (b) all costs and expenses of the Supplier incurred on or
after December 3, 1997
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in connection with the design and construction of the Northwind
Facilities and the matters set forth in this Agreement and the
Related Agreements and the documentation thereof, provided that
internal legal and engineering costs and expenses shall only be
included to the extent that the same do not exceed, in the
aggregate, $375,000; and (c) all costs and expenses of the Customer
incurred in connection with the matters set forth in this Agreement
and the Related Agreements and the documentation thereof, and (d)
all costs and expenses of the Customer incurred on or after
December 3, 1997 for outside engineering work in connection with
the design and construction of the Northwind Facilities and the
matters set forth in this Agreement and the Related Agreements and
the documentation thereof; but only to the extent that the same,
when aggregated with all of the costs and expenses of Customer for
outside engineering work prior to December 3, 1997, in the
aggregate do not exceed an amount reasonably agreed to in writing,
by Customer and Supplier.
3. Section I.D.(i) of Exhibit C to the Energy Service Agreement is
hereby deleted and replaced with the following:
["]the 'Plant Price' (as defined in the Development Agreement[)]; PLUS"
4. Notwithstanding any provisions in Amendment No. 1 to the Lease,
Northwind shall have the obligation to construct, operate and maintain
facilities for the generation and delivery of Emergency Power, as defined
below, for the benefit of Aladdin and shall deliver Emergency Power to
Aladdin in accordance with Paragraph 7 hereof, and the Lease is amended
accordingly, effective immediately. This Amendment shall be considered
Amendment No. 2 to the Lease. Except as expressly amended herein, the Lease
remains in force.
5. Notwithstanding any provisions in Amendment No. 1 to the
Development Agreement, Northwind shall have the obligation to construct,
operate and maintain facilities for the generation and delivery of Emergency
Power, as defined below, for the benefit of Aladdin and shall deliver
Emergency Power to Aladdin in accordance with Paragraph 7 hereof, and the
Development Agreement is amended accordingly, effective immediately. This
Amendment shall be considered Amendment No. 2 to the Development Agreement.
Except as expressly amended herein, the Development Agreement remains in
force.
6. Notwithstanding any provisions in Amendment No. 1 to the Energy
Service Agreement, Northwind shall have the obligation to construct, operate
and maintain facilities for the generation and delivery of Emergency Power,
as defined below, for the benefit of Aladdin and shall deliver Emergency
Power to Aladdin in accordance with paragraph 7 hereof, but only on a standby
basis in the event that Aladdin's regular electricity supply has failed for
whatsoever reason. The Energy Service Agreement is amended accordingly,
effective immediately.
7. Emergency Power shall mean the supply, installation, operation and
servicing of three (3) 1,750 kilowatt diesel engine generators, with a total
capacity of 5.25 megawatts. Two such generators shall start, synchronize and
deliver power within ten (10) seconds or less from any loss of electric
power. The third such generator shall start, synchronize and deliver power
within fifteen (15) to twenty (20) seconds or less from any loss of electric
power. All three
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generators shall be operated using diesel fuel. Northwind shall maintain a
fuel supply sufficient to run all three generators at full capacity for a
minimum time of two (2) hours. Emergency Power shall be provided for the
"Legally Required Load" to all Aladdin facilities served in ten (10) seconds
or less from the loss of electric power. The Legally Required Load is defined
as 1.9 MVA delivered to Aladdin and which shall provide electricity for
egress lighting, smoke management, special egress control devices, required
elevators, and cooling for associated machine rooms, fire pumps and emergency
communication systems.
Once power is delivered for the Legally Required Load, Emergency
Power shall be provided for all designated "Optional Loads" in twenty (20)
seconds or less from the loss of electric power. Optional Loads means 1.55
MVA delivered to Aladdin and which shall be segregated from the Legally
Required Load pursuant to National Electric Code requirements, and shall have
load and delay capabilities. The method of segregation shall be compatible
with the Plant's paralleling switchgear master controls. Integration at the
controls must be a coordinated effort between the CUP and user engineers. In
the case where one (1) of the three (3) diesel generator sets is not
operations or the Legally Required Load approaches the rating of two (2) of
the three (3) diesel generator sets, delayed optional load transfer and/or
load shedding shall be utilized to provide priority and capacity for the
legally Required Load.
8. Notwithstanding any provision in this Amendment, as of the Initial
Services Date, Northwind shall provide the Initial Services to Aladdin in an
amount required by Aladdin which does not exceed the Initial Customer Energy
Requirements and as of the Substantial Completion Date, and Northwind shall
supply Services to Aladdin in an amount required by Aladdin which does not
exceed the Customer Energy Requirement, including, but not limited to, the
Specified Demand Amount.
9. This Amendment shall be considered Amendment No. 2 to the Energy
Service Agreement. Except as expressly amended herein, the Energy Service
Agreement remains in force.
10. This Amendment will be governed by and construed in accordance
with the internal laws and decisions of the State of Nevada.
11. Time is of the essence hereof.
12. This Amendment may be executed in one or more counterparts, each
of which will be considered an original instrument, but all of which will be
considered one and the same agreement, and will become biding when one or
more counterparts have been signed by each of the parties hereto and
delivered to Northwind and to Aladdin.
13. Neither Northwind nor Aladdin shall assign its interest or
delegate its duties under this Amendment except in accordance with Section
10.2 of the Energy Service Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first written above.
NORTHWIND ALADDIN, LLC, ALADDIN GAMING, LLC,
a Nevada limited-liability company a Nevada limited-liability company
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxx Xxxxxx Name: Xxxxxxx Xxxxxxxx
Title: Vice President & General Manager Title: President &
Chief Executive Officer
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