EXHIBIT 10.04
ENERGY SERVICES COORDINATION AGREEMENT
This Energy Services Coordination Agreement ("the Agreement") is made
and entered into as of this 28th day of May 1999 (the "Effective Date"), by and
among (i) Aladdin Gaming, LLC ("Aladdin"), a limited liability company organized
under the laws of the State of Nevada and (ii) Aladdin Bazaar, LLC ("Bazaar"), a
Delaware limited liability company (each of Aladdin and Bazaar named
individually as a "Party" and collectively as the "Parties").
W I T N E S S E T H
WHEREAS, the Parties plan to participate in the
development, construction and operation of (i) a luxury themed hotel of
approximately 2,600 rooms (the "Hotel"), a 116,000 square foot casino (the
"Casino"), a 1,400-seat production showroom, seven restaurants and a newly
renovated 7,000-seat Theatre of the Performing Arts (the "Theatre" and
together with the Hotel and Casino, the "Aladdin Hotel and Casino"); (ii) a
high-end themed entertainment shopping mall with a gross-leasable area of
approximately 450,000 square feet (the "Desert Passage"); and (iii) a
4,800-space parking facility (the "Carpark" and together with the Desert
Passage, the "Mall Project"). The Aladdin Hotel and Casino and the Mall
Project are hereinafter referred to as the "Complex."
WHEREAS, Aladdin has entered into an agreement with
Northwind Aladdin, LLC (the "Energy Provider"), a company a majority of which
is indirectly-owned by Unicom Corporation, dated as of December 3, 1997 (as
amended and in effect from time to time the "Development Agreement") to
develop and construct an energy facility (the "Plant") to supply the hot
water, chilled water and electricity needs of the Complex (the "Energy
Services") with the understanding that the Mall Project intends to acquire
Energy Services, as further set forth herein, from the Energy Provider, and
further, that Bazaar would enter into this Agreement;
WHEREAS, Aladdin is the beneficiary of a guaranty of Unicom
Corporation (the "Guarantor"), dated as of December 3, 1997 (as amended and
in effect from time to time the "Guaranty") pursuant to which the Guarantor
unconditionally and irrevocably guaranties to Aladdin the performance of the
obligations and duties of the Energy Provider under the Development Agreement
to construct and demonstrate "Final Completion" of the Plant, subject to a
limitation of the lesser of (i) $30 million or (ii) the "Guaranteed Maximum
Price" as finally determined and agreed upon pursuant to the Development
Agreement plus interim operating costs up to the "Substantial Completion
Date";
WHEREAS, Aladdin has entered into a lease with the Energy
Provider dated as of December 3, 1997 (as amended and in effect from time to
time the "Lease") to lease a site (the "Site") to the Energy Provider on
which the Energy Provider will construct and operate the Plant pursuant to
the Development Agreement and the Energy Service Agreements;
WHEREAS, each of the Parties has entered into an energy
service agreement with the Energy Provider dated as of September 24, 1998 (as
amended and in effect from time to time
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the "Energy Service Agreements" and together with the Development Agreement,
the Guaranty and the Lease, the "Project Agreements") to operate the Plant
and to provide Energy Services to each of the Parties for an initial term of
twenty (20) years (the "Initial Term");
WHEREAS, the Energy Provider has agreed pursuant to the
terms of the Development Agreement and the Energy Service Agreements to
finance the development, construction and initial operation of the Plant;
WHEREAS, the Energy Provider will recover its investment in
the Plant pursuant to a monthly capacity charge set forth in the Energy
Service Agreements (the "Contract Capacity Charges") to be collected from
each of the Parties pursuant to the terms of the respective Energy Service
Agreements; and
WHEREAS, the Parties desire to set forth their
understandings as to their respective rights, obligations and interests with
respect to the development, construction, operation and ownership of the
Plant as set forth in the Project Agreements; the responsibilities of each
Party with respect to the Contract Capacity Charges; the procedures to be
followed in the event of an Energy Provider default or defaults under the
Project Agreements; and certain other matters with respect to the Plant and
the Energy Services.
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties,
intending to be legally bound, hereby agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION; ASSIGNMENT
1.1 DEFINITIONS. Capitalized terms used herein shall have the
meanings set forth in Exhibit A (unless a different meaning shall be
expressly stated herein).
ARTICLE 2
GENERAL OBLIGATIONS
2.1 GOOD FAITH OF THE PARTIES. During the term of this Agreement, the
Parties will each (i) exercise good faith efforts in performing their
respective obligations under this Agreement and the Project Agreements, (ii)
cooperate and communicate fully with one another to that end and (iii)
continue in good faith to meet their respective obligations under this
Agreement and the Project Agreements to provide information and assistance
requested by the Energy Provider to be utilized by it in its development,
construction and operation of the Plant subject to the terms and conditions
of this Agreement and the Project Agreements.
2.2 PARTIES' POWER TO BIND COMPANIES. No Party or affiliate thereof
shall take any action purporting to bind any other Party or its affiliates. All
actions in connection with the development, construction and operation of the
Plant undertaken after the execution of this Agree-
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ment by the Parties or their affiliates without the prior written approval of
the Management Committee, as defined below, are at their sole risk and
expense.
2.3 COMPLIANCE WITH PROJECT AGREEMENTS. No Party shall take, allow,
permit, cause or fail to take any action which results in a material breach
of the Project Agreements by any person or entity party thereto. Each Party
shall enforce and shall not permit the breach of any terms or provisions of
the Project Agreements to which such Party is a party.
(a) In the event a Party does allow, permit or cause,
through action or, when obligated to act as provided therein or above,
inaction, the breach of any provision of a Project Agreement, such Party
shall promptly remedy such breach at its sole cost and expense and shall be
solely liable for any costs, other than consequential damages, resulting from
such breach.
(b) In the event a Party causes any of the other Parties to
incur costs and/or expenses pursuant to a Project Agreement, such Party shall
be solely liable for such costs and/or expenses, other than consequential
damages, and such Party shall pay to the other Parties incurring any such
cost, interest on amounts expended by such Parties, as provided in Section
8.5 hereof.
2.4 COORDINATION REGARDING ENERGY SERVICES. In the event that any of
the Parties are unable for any reason and at any time to obtain sufficient
levels of any of the Energy Services from the Energy Provider, the other
Party or Parties shall use good faith efforts, at no cost thereto, to assist
the Party or Parties in obtaining such Energy Services from alternative
sources acceptable to such Party or Parties.
2.5 ASSIGNMENT OF DEVELOPMENT AGREEMENT AND GUARANTY. (a) As an
inducement to The Bank of Nova Scotia, in its capacity as the administrative
Agent for certain Lenders (in such capacity, the "Administrative Agent"), to
consent to the execution and delivery of this Agreement and to Bazaar to
enter into this Agreement, Aladdin hereby absolutely and unconditionally
grants, assigns, transfers, conveys and delivers all of Aladdin's right,
title, interest, benefits and privileges under the Development Agreement and
the Guaranty to the Administrative Agent for the benefit of such Lenders, as
the senior assignee (the "Senior Assignee") and Bazaar, as the junior
assignee (the "Junior Assignee"); provided, however, during such time as
Aladdin is enforcing in all material respects the obligations of the other
parties to the Development Agreement and the Guaranty, Aladdin shall have a
revocable license to receive and collect all amounts due or which may become
due to Aladdin under the Development Agreement and the Guaranty, as
applicable, and make all claims and demands thereunder. If at any time prior
to the performance by the other parties of their respective obligations under
the Development Agreement and the Guaranty Aladdin for any reason whatsoever
fails, refuses or is unable to enforce the provisions of the Development
Agreement and the Guaranty in all material respects, either of the Senior
Assignee or the Junior Assignee may demand that Aladdin enforce such
obligations under the Development Agreement and the Guaranty. Such demand
shall be given in accordance with the notice provisions in Article 11. If
Aladdin is unable or fails to resume enforcement of the Development Agreement
and the Guaranty, as the case may be, within five (5) days after the date of
such notice, the Senior Assignee shall have the sole right to enforce the
Development Agreement and the Guaranty. If the Senior Assignee does not
exercise such right within 10 days after the
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date of such notice or, if after such exercise does not diligently enforce
such obligations in all material respects, the Junior Assignee shall have the
right to exercise such right to enforce the Development Agreement and the
Guaranty by giving notice to Aladdin and the Senior Assignee of its intention
to do so.
(b) Notwithstanding anything to the contrary in clause (a) of this
Section 2.5, Bazaar agrees with the Administrative Agent that Bazaar's sole
remedy for the failure of the Administrative Agent to exercise its rights
under clause (a) shall be the exercise of Bazaar's rights to compel
enforcement of the Development Agreement and the Guaranty in accordance with
clause (a) and that Bazaar shall have no rights to ▇▇▇ for, seek or collect
from the Administrative Agent any monetary or other damages of any sort
whatsoever including, without limitation, actual, compensatory,
consequential, punitive or special damages.
(c) Aladdin agrees that the provisions of Section 10.4 of that
certain Agreement between Aladdin, the Administrative Agent and others dated
as of February 26, 1997, as the same may be amended from time to time, shall
apply to any exercise by the Administrative Agent of any of its rights under
this Agreement.
ARTICLE 3
MANAGEMENT COMMITTEE
3.1 AUTHORITY. As soon as possible after the Effective Date, the
Parties agree to establish a management committee ("the Management
Committee") to monitor and supervise the implementation of this Agreement and
certain activities related to the Project Agreements. The Management
Committee shall have the power and authority to: (i) supervise the
implementation of, and take whatever actions are reasonably necessary to
effect the implementation of, this Agreement and the Project Agreements; (ii)
set the principles for negotiating all amendments, modifications and renewals
of this Agreement and the Project Agreements; (iii) set the principles for
negotiating all contracts for energy services the Energy Provider may seek to
negotiate with third parties; (iv) appoint and supervise a Person (the
"Energy Services Liaison") to be responsible for monitoring the day-to-day
development, construction and operation of the Plant and acting as the
Parties' first and primary contact with the Energy Provider in the event of
an Energy Provider Default; (v) allocate among the Parties any net proceeds
or economic benefits derived from the Energy Provider's sale of energy
services to third parties ("Third-Party Sales Proceeds"), from any lines
fees, transmission fees, tariffs or other such amounts paid by any of
Bazaar's tenants to utilize the Plant or any power lines or other
infrastructure connected thereto if any such tenant elects to obtain
electricity service from a provider other than the provider providing
electricity services to the Mall Project ("Tenant Sales Proceeds") or from
any condemnation proceeds payable with respect to the Plant pursuant to
Article 8 of the Lease ("Condemnation Proceeds") according to the respective
interests of the Parties in and to the Plant, as such interests are set forth
in, and as otherwise provided in, Section 3.8 below; and (vi) take any
actions reasonably necessary to effect the purposes of this Agreement and of
the Project Agreements.
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3.2 REPRESENTATION.
(a) The Management Committee shall be composed of four (4)
representatives as follows:
(i) Aladdin shall appoint two (2) representatives
(and two (2) alternative representatives) to represent the interests of
the Aladdin Hotel and Casino on the Management Committee. Initially,
Aladdin's representatives shall be ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
and its alternate representatives shall be ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇
▇▇▇▇▇▇; and
(ii) Bazaar shall appoint two (2) representatives
(and two (2) alternative representatives) to represent the interests of
the Mall Project on the Management Committee. Initially, Bazaar's
representatives shall be ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇ and its
alternate representatives shall be ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇.
(b) Each Party shall as soon as possible after the Effective
Date give notice in writing to the other Parties of the names and addresses of
its representatives and alternative representatives and, following the
designation of the Energy Services Liaison, shall give notice to the Energy
Services Liaison of at least five (5) business days in advance of changes in
representation or alternative representation of the Management Committee. Each
representative shall have only one vote on Management Committee decisions. Each
Party's representatives or alternative representatives in the absence of a
Party's representatives, shall be authorized, collectively and individually, to
represent and to bind such Party with respect to any matter which is within the
powers and authority of the Management Committee as set forth in this Agreement.
Each Party, through its representatives, shall inform the other Parties of any
information it anticipates will affect the rights, duties and/or obligations of
any other Party under this Agreement. For the purposes of this Agreement, the
term "representative" or "representatives" shall hereafter be deemed to include
any alternate representative taking the place of an absent representative.
3.3 ORGANIZATIONAL MEETING; CHAIRMAN AND ENERGY SERVICES LIAISON.
(a) Following the Effective Date, the Management Committee
shall meet within thirty (30) days (the "Organizational Meeting") and at such
meeting shall:
(i) elect one (1) of the representatives to serve as
the Chairman of the Management Committee (the "Chairman"). The Chairman
shall be elected by a majority vote of the representatives serving on
the Management Committee present at such first meeting; and
(ii) appoint and provide for the terms and conditions
for the employment and compensation of the Energy Services Liaison,
whose duties are set forth in Article 5.
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(b) On or about each annual anniversary of the Organizational
Meeting, such meeting to be held in accordance with Section 3.4 below, the
Parties shall hold an election, and a Chairman will be elected in accordance
with the provisions of this Section 3.3.
(c) The Management Committee may replace the Energy Services
Liaison at any meeting held in accordance with Section 3.4.
3.4 MEETINGS.
(a) Following the Organizational Meeting, the Management
Committee shall meet as determined in accordance with this Section 3.4. The
Chairman shall deliver to each of the Parties' representatives and each of
the alternate representatives a proper notice consisting of the date, time,
location and agenda of the meeting selected in good faith at least ten (10)
business days in advance of such meeting, except that such notice
requirements may be waived on a case-by-case basis upon the unanimous written
agreement of the representatives who did not receive notice of such meeting
as required. Any representative may request a meeting of the Management
Committee by giving proper notice consisting of the date, time, location and
agenda of the meeting to the other representatives at least ten (10) business
days in advance of such meeting.
(b) Attendance at meetings of the Management Committee by a
Party's representatives may include attendance by phone. In the event any
representative of a Party misses a meeting after proper notice under
subsection (a) of this Section 3.4, then for the sole purpose of any vote
taken at that meeting called with respect to any item listed on the agenda
for such missed meeting, a quorum shall be deemed to consist of the
representatives present at such meeting and the requirement for a majority
vote in Section 3.5 shall only refer to the vote or votes of the
representatives present at such meeting.
3.5 VOTING.
(a) Except as specified in Sections 3.4(b) and 3.5(b), and
subject to Article 4, all decisions, approvals and other actions of the
Management Committee shall require the majority vote of all representatives
present and having the right to vote at a meeting. In the event that the vote
on any decision, approval or other such action is deadlocked and such
deadlock is not resolved within three (3) days after the initial vote on such
matter, then any Party may submit such matter to arbitration in accordance
with the provisions of Article 8.
(b) Notwithstanding anything to the contrary contained in
Section 3.5(a), any decision, approval or other action which reasonably could
be believed to materially affect a Party's rights, duties or obligations
under its Energy Service Agreement or the development or operation of its
portion of the Complex shall require the express written consent of such
Party, which may be withheld in such Party's reasonable discretion. Such
decisions include, by way of illustration and not by way of limitation, the
decision to release the Guarantor from the Guaranty, to modify, amend or
terminate the Guaranty, or to increase the Plant Price (as defined in the
Development Agreement) above $45,000,000.00.
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3.6 OTHER COMMITTEES. The representatives may by mutual agreement
establish such other committees as deemed necessary. The provisions of
Article 3 hereof shall apply to the workings of each such committee;
PROVIDED, HOWEVER, that in the event any such committee is unable to reach a
majority decision with respect to any matter before it, the decision shall be
referred to the Management Committee for final decision.
3.7 COSTS. Each Party will bear its own costs in connection with its
participation in the Management Committee, and any other committee
established pursuant to Section 3.6 hereof, and this Agreement.
3.8 DIVISION OF THIRD-PARTY SALES PROCEEDS, TENANT SALES PROCEEDS
AND CONDEMNATION PROCEEDS. At such time as the Parties have reason to believe
that Third-Party Sales Proceeds may be generated from the Plant, the Parties
shall agree upon the respective percentages of Third-Party Sales Proceeds to
which the Parties shall be entitled, including, but not limited to, the
percentage of Third-Party Sales Proceeds which shall be considered an
increase in the rent payable by the Energy Provider to Aladdin pursuant to
the Lease as a result of the Energy Provider's sale of energy services to
third parties, which agreement shall require the unanimous consent of the
Parties. Tenant Sale Proceeds shall be divided such that seventy-five percent
(75%) of such proceeds shall be attributed to the infrastructure of the Plant
and twenty-five percent (25%) of such proceeds shall be attributed to the
infrastructure of the Mall Project. The Parties shall be entitled to a
percentage of the Tenant Sales Proceeds attributable to the Plant in
accordance with a percentage determined by their respective initial
investments in the Plant divided by the total initial investment of all
Parties in the Plant (each a "Party Investment Percentage"), which percentage
for each Party is set forth on Exhibit C attached hereto. Bazaar also shall
be entitled to the entire portion of the Tenant Sales Proceeds attributable
to the Mall Project infrastructure (I.E., 25% of the Tenant Sales Proceeds).
Any Condemnation Proceeds awarded to any of the Parties and attributable to
the Plant shall be apportioned between the Parties based upon their
respective Party Investment Percentage, and the Party so receiving such
proceeds shall promptly pay to each other Party the portion of such
Condemnation Proceeds to which each such Party is entitled hereunder.
ARTICLE 4
LOSS OF VOTING RIGHTS AND RIGHTS TO CONTROL
4.1 LOSS OF VOTING RIGHTS AND RIGHTS TO CONTROL. A Party shall be
deemed to have automatically lost its voting rights and any rights to control
matters with respect to the Plant or Energy Services provided under this
Agreement in the event that it: (i) commits a "Party Default," as defined in
Section 7.3 hereof, and fails to remedy the same in the period provided in
Section 7.3, or, (ii) if it commits a payment default under this Agreement
("Party Payment Default") and does not remedy such breach within fifteen (15)
days of notice of such breach provided by the Energy Services Liaison; (iii)
becomes a party to a voluntary or involuntary bankruptcy or insolvency
proceeding against it or a receiver or custodian is appointed with respect to
its assets and, if an involuntary proceeding, such proceeding is not
dismissed within ninety (90) days; (iv) takes action, voluntarily or
involuntarily, to liquidate or dissolve; or (v) undertakes such other actions
as would require its mandatory withdrawal pursuant to the specific terms of
any other provision of this Agreement. Notwithstanding a Party's automatic
loss of its voting
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rights and rights to control as provided in this Section 4.1, such Party and
its rights under its Energy Service Agreement shall remain subject to this
Agreement.
4.2 LIABILITY. As between the Parties and without prejudice to the
obligations under the Energy Service Agreements, in the event of an automatic
withdrawal, a Party shall remain liable for Contract Capacity Charges past
due as well as for future Contract Capacity Charges unless and until a third
party in accordance with its Energy Service Agreement and this Agreement,
respectively, has assumed the Party's obligations under such Energy Service
Agreement and this Agreement.
4.3 INTERRELATIONSHIP WITH ENERGY SERVICE AGREEMENT. The Parties
hereby acknowledge and agree solely between themselves and without prejudice
to the rights of the Energy Provider that, due to the complex nature of the
interrelationship between the Parties and their respective Energy Service
Agreements, (i) this Agreement is essential for the assurance of the Parties'
rights under their respective Energy Service Agreements, (ii) this Agreement
and the Energy Service Agreements are mutually dependent and not severable,
(iii) the validity of this Agreement and each Energy Service Agreement is
contingent upon, with respect to each Party, the continued existence of this
Agreement and such Party's respective Energy Service Agreement, and (iv) the
rejection by any Party or its trustee in a bankruptcy proceeding of this
Agreement or its Energy Service Agreement shall constitute an automatic
rejection by such Party of the other of this Agreement or its Energy Service
Agreement not so rejected.
4.4 MORTGAGEE CURE RIGHTS. Each mortgagee of a Party who shall have
notified the other Parties of its name and address shall be entitled to
notice of any default or mandatory withdrawal event hereunder on the part of
such first Party and shall have the opportunity to cure such default or
mandatory withdrawal event until ten (10) days after the later of (i) the
expiration of the cure period allowed to such first Party hereunder or (ii)
such mortgagee's receipt of such notice; provided, however, that (a) a
default or mandatory withdrawal event that by its nature is incapable of cure
by such mortgagee shall be deemed cured if such mortgagee promptly commences,
and diligently prosecutes to completion, proceedings to acquire the
Defaulting Party's interests in its premises and under the Project Agreements
and hereunder, and (b) such additional mortgagee cure period shall not affect
any cure periods provided by the Energy Provider to such mortgagee(s) under
any of the other Project Agreements. In the event that a Party or its trustee
rejects this Agreement in a bankruptcy proceeding, then (i) such Party's
Energy Service Agreement shall be deemed automatically rejected as provided
in Section 4.3 above and (ii) such Party's mortgagee (x) will enter into an
agreement with the other Party or Parties to this Agreement in a form
substantially similar to this Agreement which shall contain the same
conditions, agreements, terms, provisions, and limitations as this Agreement
(except for any obligations which have been performed by Aladdin prior to
such rejection or termination), (y) in the case of Aladdin, will enter into
new Aladdin Energy Documents (as such term is defined in that certain
Subordination, Non-Disturbance and Attornment Agreement and Consent between
Aladdin, the Administrative Agent and others having an effective date as of
May 27, 1999 (the "Subordination Agreement")), in each case in accordance
with the provisions of clause (e) Section 1.4 of the Subordination Agreement
and (z) in the case of Bazaar, will enter into a new Bazaar ESA which shall
contain the same conditions, agreements, terms, provisions, and limitations
as the current
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Bazaar ESA (except for any obligations which have been performed by Bazaar
prior to such rejection or termination).
ARTICLE 5
ENERGY SERVICES LIAISON
5.1 AUTHORITY.
(a) GENERAL AUTHORITY. The Energy Services Liaison shall
have those powers and authorities explicitly granted to it in writing by the
Management Committee, including those set forth in Exhibit B hereto, and
shall act on behalf of and owe an equal duty to all of the Parties. The
Parties agree by the execution of this Agreement that the Energy Services
Liaison, in accordance with and subject to the limitations of such powers and
authorities set forth herein, shall make any and all decisions relating to
the day-to-day operations of the Plant, and the Parties' rights, duties and
obligations under the Project Agreements, except as explicitly directed
otherwise by the Management Committee. The powers and authorities of the
Energy Services Liaison set forth in Exhibit B may be amended and/or modified
at any time in accordance with Section 3.5(a).
5.2 DUTIES. The Energy Services Liaison shall have those duties and
obligations set forth in Exhibit B hereto and as specified in writing by the
Management Committee. The Parties agree by the execution hereof that the
Energy Services Liaison shall (i) report to the Management Committee at each
meeting; (ii) promptly deliver all notices received from the Energy Provider
with respect to the Development Agreement to the Management Committee
generally and the relevant representatives thereof particularly; (iii)
promptly inform the Management Committee generally and the relevant
representatives thereof particularly of events which might reasonably be
anticipated to affect the rights, duties and/or obligations of any of the
Management Committee or any of the Parties; and (iv) perform the duties set
forth in Exhibit B. The duties of the Energy Services Liaison set forth in
Exhibit B shall be in addition to those general duties of this Section 5.2.
5.3 COMPENSATION AND PAYMENT.
(a) In the event the Energy Services Liaison already is
directly employed by one of the Parties, that Party will pay the Energy
Services Liaison a reasonable salary and all reasonable costs associated with
the performance of its duties under this Agreement.
(b) The Party employing the Energy Services Liaison will be
reimbursed for portions of the Energy Services Liaison's salary and
associated costs as follows: (i) the costs and expenses of the Energy
Services Liaison with respect to activities performed for the benefit of the
Parties collectively under the terms of this Agreement shall be charged to
each of the Parties in equal portions; (ii) the costs and expenses of the
Energy Services Liaison with respect to activities performed for the benefit
of one Party at such Party's request or with such Party's authorization shall
be paid by such Party.
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ARTICLE 6
DEVELOPMENT AGREEMENT
6.1 ENERGY SERVICES LIAISON. The Parties agree that they will
coordinate the exercise of the rights, duties and obligations under the
Development Agreement by relying on the Energy Services Liaison to the extent
set forth in Article 5.
ARTICLE 7
ENERGY SERVICE AGREEMENTS
7.1 COORDINATION.
(a) The Parties covenant and agree that they shall not
negotiate with the Energy Provider except in conjunction with the other
Parties hereto, and that each Energy Service Agreement executed after the
date hereof shall be substantially in identical form and of substantially
identical effect. In general, the Parties agree that they will coordinate the
exercise of the rights, duties and obligations under the Energy Service
Agreements by relying on the Energy Services Liaison to the extent set forth
in Article 5.
(b) In particular, the Parties agree as follows:
(i) The Parties will cooperate and coordinate to the
extent practicable to provide the Energy Provider with, or
assist in the development of, any Exhibits to the Energy
Service Agreements to be completed after the date hereof;
(ii) Each of the Parties shall have "first call" on
Services produced by the Plant, as set forth in Section 2.1(c)
of the Energy Service Agreements; provided, however, that (A)
a Party's demand for Services may equal but shall not exceed
the Customer Energy Requirements as set forth in Exhibit B.2
to each Energy Service Agreement and (B) a Party's demand for
Services shall not cause the Plant Energy Requirements as set
forth in Exhibit B.1 of each Energy Service Agreement to be
exceeded;
(iii) A Party shall submit any "Additional Services
Request" (as defined in the Energy Service Agreement) to the
Management Committee at least seven (7) days prior to
submitting such request to the Energy Provider. If the period
for which the Additional Services are to be obtained exceeds
thirty (30) days, the Management Committee must approve such
request as provided in Section 3.5 hereof before the Party can
submit it to the Energy Provider. If such Additional Services
Request has not been rejected by the Management Committee
within such seven (7) day period, it shall be deemed approved;
(iv) The cost for Additional Services which increases
the Contract Capacity Charges shall be borne in full by the
requesting Party alone;
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(v) Bazaar shall not consent to the Energy Provider's
entering into commitments to sell Additional Services to third
parties; Aladdin shall do so only after giving Bazaar thirty
(30) days written notice and subject to the provisions of
Section 3.8 hereof;
(vi) The Parties will work in concert to ensure that
the provisions of Section 2.2 and Section 2.3 of each Energy
Service Agreement are complied with and, to the extent one or
all of the Parties violates Section 2.2 or Section 2.3 thereof
and the Party responsible cannot be positively identified, the
Parties agree to share equally in any costs arising under
Section 2.2(c) and, to the extent applicable, Section 2.3(c)
thereof; provided, however, that Bazaar shall bear no
responsibility for items related exclusively to the generation
or distribution of hot water services to the extent Bazaar was
not responsible for such costs;
(vii) To the extent any of the Supplier
Interconnection Equipment is damaged or destroyed by the
action or inaction of a Party and the Party responsible for
the damage or destruction is ascertained by either the Energy
Provider or the other Parties, that Party shall pay all costs,
as further described in Section 3.1 of each Energy Service
Agreement. To the extent a particular Party's responsibility
cannot be ascertained, the Parties shall pay, in equal
portions, the amounts then owing, as further described in
Section 3.1 of each Energy Service Agreement provided,
however, that notwithstanding anything in this Agreement to
the contrary, Bazaar shall bear no responsibility for items
related exclusively to the generation or distribution of hot
water services to the extent Bazaar was not responsible for
such costs and other than as set forth in Section 7.5(a)
hereof, Bazaar shall not be responsible for any costs
associated with repair or replacement of any portion of the
Plant which must be repaired or restored due to mechanical or
structural failure or ordinary wear and tear;
(viii) Subject to Section 3.5, the Parties will
coordinate a response to any Energy Provider request to modify
the Supplier Interconnection Equipment;
(ix) Subject to Section 3.5, the Parties will use
their best efforts to agree upon the contingency plan as
further described in Section 4.3 of each Energy Service
Agreement on or before the date on which the Guaranteed
Maximum Plant Price is fixed under the Development Agreement;
(x) Each Party hereby consents to the assignment by
the Energy Provider's members of their respective membership
interests in the Energy Provider to State Street Bank and
Trust Company ("SSB&T") as collateral agent for the Energy
Provider's lenders, as security for the Energy Provider's
obligations to such lenders, and further consents to the
exercise by SSB&T as such collateral agent of its rights under
such assignments, on and subject to the terms and conditions
of those certain consent agreements between Aladdin and
Bazaar, respectively, and SSB&T. Subject to the foregoing, no
Party shall permit the Energy Provider to transfer a
membership interest or issue any new membership interests,
11
as further described in Section 4.3(b) of each Energy Service
Agreement but subject to the exceptions thereto set forth in
Section 10.2 of the Energy Service Agreements, without the
express permission of the Management Committee as provided in
Section 3.5;
(xi) Parties acquiring the Plant pursuant to Sections
6.3 (if applicable), 6.4 or 9.3 of each Energy Service
Agreement shall provide each other with full and complete
copies of all information obtained from the Energy Provider
pursuant to Section 5.5 of each Energy Service Agreement;
(xii) The Parties will use the Energy Services
Liaison as their primary contact with the Energy Provider in
the event of a default as more fully described in Exhibit B
hereto and in Article 6 of each Energy Service Agreement;
(xiii) The Parties will cooperate with each other and
coordinate their efforts in the event of a Force Majeure
Event, as described in Article 7 of each Energy Service
Agreement; and
(xiv) No Party shall have the right to terminate its
respective Energy Service Agreement due to a default by the
Energy Provider thereunder unless such party in furtherance of
Section 6.3 of its Energy Service Agreement, posts a cash
deposit or letter of credit in form acceptable to the
remainder of the Parties, covering such terminating Party's
pro rata share of the cost of purchasing the Plant based upon
the Party's Party Investment Percentage.
7.2 ENERGY SERVICE AGREEMENT PAYMENT DEFAULTS. In the event a Party
fails to comply with its obligation to pay all invoices delivered pursuant to
its Energy Services Agreement on or before the Energy Service Agreement Due
Date, or to make any payment of the Make Whole Amount or Default Make Whole
Amount, as applicable, pursuant to Section 6.3 of its Energy Service
Agreement, the Energy Provider will, within five (5) days of such Energy
Service Agreement Due Date or the due date for such Make Whole Amount or
Default Make Whole Amount, as applicable, having passed without payment,
provide all Parties and the Energy Services Liaison with notice of such
payment lapse and afford the non-failing Party an additional ten (10) days
from receipt of such notice to step in and make such payment. If any
non-failing party makes such payment, then such payment shall accrue interest
as provided in Section 8.5 hereof until the Failing Party repays such
non-failing Party in full, including any accrued and unpaid interest charges.
If no other Party makes such payment on behalf of the defaulting party within
such ten (10) day period, the Energy Provider shall have the right to pursue
all of its rights and remedies under the applicable Energy Service Agreement.
7.3 PARTY DEFAULTS.
(a) A Party shall have committed a Party Default if its
failure to make payments as required by its Energy Services Agreement, or
otherwise comply with its obligations thereunder, results in the Energy
Provider discontinuing Services to that Party pursuant to Section 6.3 thereof.
12
(b) Failure to remedy a Party Default within ten (10)
business days after the defaulting Party's receipt of a written notice from
the Energy Provider described in Section 6.3(a) of its Energy Service
Agreement shall be a material default under this Agreement and the defaulting
Party shall be deemed to have automatically lost its voting rights and rights
to control in accordance with Section 4.1 hereof.
7.4 PURCHASE OF THE PLANT. The Parties agree that only Aladdin, for
so long as it is a member of the Management Committee hereunder and has not
been deemed to have automatically lost its voting rights and rights to
control pursuant to the provisions of Article 4 hereof, shall be the
Controlling Party and have the right to initiate the purchase of the Plant
pursuant to Section 6.4 and Section 9.3 of the Energy Service Agreements,
provided, however, that if there is a Service Default (as defined in Bazaar's
Energy Service Agreement) with respect to any Party's Energy Services and
Aladdin does not exercise the remedies requested by such Party and provided
as of the date hereof under Sections 6.1 and 6.4 of Aladdin's Energy Service
Agreement, then such Party shall have its rights and remedies under Sections
6.1 and 6.4 of its Energy Service Agreement and, if it elects to pursue such
rights, shall be deemed to be the Controlling Party under this Agreement for
purpose of exercising such rights. Each other Party hereunder shall have the
right to elect to participate in such purchase, as provided herein. If
Aladdin has been deemed to have automatically lost its voting rights and
rights to control pursuant to the provisions of Article 4 hereof, then the
Party who is the successor to Aladdin as Controlling Party shall have the
exclusive right to initiate such purchase while it remains a Party. If there
is more than one Party other than Aladdin, the foregoing provisions
thereafter shall apply as among such Parties. Subject to Aladdin's exclusive
right set forth above, the following provisions shall apply to any purchase
of the Plant:
(a) In the event one or more Parties (collectively, the
"Acquiring Party") elect to acquire the Plant pursuant to Section 6.4 of its
Energy Service Agreement, the Acquiring Party shall notify in writing the
other Party or Parties (collectively, the "Non-Acquiring Party") at least
twenty one (21) days prior to notifying the Energy Provider of its intention
to purchase the Plant (such notice a "Purchase Notice"). The Non-Acquiring
Party shall be afforded the opportunity to acquire and share on a pro rata
basis in the ownership of the Plant based upon the Parties' respective Party
Investment Percentages and shall respond in writing to the Acquiring Party as
to whether it intends to join the Acquiring Party in acquiring the Plant
within seven (7) days of receiving the Purchase Notice. The form of ownership
of the Plant shall be determined, at the time of acquisition, by unanimous
vote of all of the Parties comprising the Acquiring Party.
(b) In the event the Acquiring Party determines to acquire
the Plant pursuant to Section 9.3 of its Energy Service Agreement, the
Acquiring Party shall notify the Non-Acquiring Party at least ninety (90)
days prior to notifying the Energy Provider of its intention to acquire the
Plant. The Non-Acquiring Party shall be afforded the opportunity to acquire
and share ratably in the ownership of the Plant based upon the Parties'
respective Party Investment Percentages and shall respond in writing as to
whether it intends to join the Acquiring Party in acquiring the Plant to the
Acquiring Party within thirty (30) days of receiving the Purchase Notice. The
form of ownership of the Plant shall be determined, at the time of
acquisition, by unanimous vote of all of the Parties comprising the Acquiring
Party.
13
(c) The Parties agree that the acquisition of the Plant
pursuant to Section 9.3 of an Energy Service Agreement shall render that
section null and void for the Non-Acquiring Party in such Party's Energy
Service Agreement.
(d) Unless all Parties acquire the Plant, the Acquiring
Party shall assume the full obligations owed by the Energy Provider to the
Non-Acquiring Party under the Project Documents. Simultaneous with the
transfer of ownership from the Energy Provider to the Acquiring Party, the
Acquiring Party shall be deemed to have withdrawn from this Agreement. The
Non-Acquiring Party shall have all of its rights and obligations under its
Energy Service Agreement, including the right to revenues from sales to
third-parties and the right to own a pro rata portion of the Plant upon the
expiration of the term of such Energy Service Agreement in accordance with
Sections 3.8 and 7.4 hereof. Upon the election by the Non-Acquiring Party to
own a portion of the Plant, upon the expiration of the term of its Energy
Service Agreement, the ownership of the Plant shall be in a form unanimously
agreed upon by the Acquiring Party and the Non-Acquiring Party. The Parties
shall execute such agreements as either may reasonably request in order to
effectuate the terms of this Section 7.4. Aladdin hereby covenants and agrees
to maintain the Lease in full force and effect and extend the term of the
Lease for so long as any Energy Services Agreement remains in force unless
Aladdin is the sole Acquiring Party.
7.5 RATE DIFFERENTIAL. The Parties acknowledge that Bazaar's Energy
Service Agreement provides that Bazaar will pay a different rate for Energy
Services than the other Parties will pay therefor under their respective
Energy Service Agreements. The Parties agree that, to the extent that Bazaar
pays higher rates for Energy Services than the other Parties, the portion of
the Consumption Charges (as defined in Bazaar's Energy Service Agreement)
paid by Bazaar each year attributable to the rate differential between the
rates paid by Bazaar for Energy Services and the rates paid by the other
Parties for Energy Services (the "Rate Differential Amount") will be credited
towards Aladdin's Contract Capacity Charges (as defined in Aladdin's Energy
Service Agreement) payable under Aladdin's Energy Service Agreement for the
following year. Notwithstanding the foregoing, the following provisions shall
apply with respect to all Consumption Charges paid by Bazaar during the term
of its Energy Service Agreement (as it may be extended):
(a) In the event that the Rate Differential Amount for any calendar
year is less than Bazaar's "Contract Maintenance Costs" (defined as Bazaar's
share (which shall be determined based upon the respective demands of the
Parties, but shall not exceed $110,000 per calendar year) of the maintenance
cost of the Plant for such year, based solely upon costs under actual
maintenance contracts for the Plant, including bid-out, full coverage
maintenance and in-house maintenance contracts, and not including any other
Operational Charges as defined in Exhibit C to the Aladdin Energy Service
Agreement) or any repair or replacements of any portion of the Plant (other
than those specifically attributable to the affirmative actions or, when
obligated to act, inaction, of Bazaar)), then Bazaar's monthly Consumption
Charges for the subsequent calendar year shall be recalculated and adjusted
upward, each by an amount equal to 1/12 of the lesser of the amount by which
the Rate Differential Amount is less than Bazaar's Contract Maintenance Costs
or $110,000, provided such upward adjustment shall not exceed $110,000.00 in
the aggregate for such year, and Aladdin's Consumption Charges for such year,
payable under the Aladdin
14
Energy Service Agreement, will be adjusted downward in an amount equal to the
upward adjustments of Bazaar's Consumption Charges. Such adjustment shall
take into consideration and be based upon the final Market Rate for Chilled
Water Services, as provided in Exhibit "C" of Bazaar's Energy Service
Agreement.
(b) In the event that for any calendar year during the term of
Bazaar's Energy Service Agreement: (a) the percentage obtained by dividing
(i) the aggregate Contract Capacity Charges actually paid by the Parties
other than Bazaar (I.E., excluding the Rate Differential Amount credited
towards such Contract Capacity Charges as provided above) during such year,
by (ii) the aggregate of all Contract Capacity Charges paid by all of the
Parties plus the Rate Differential Amount (the "Actual Percentage") during
such year (b) is less than 66.67%, then Aladdin shall pay to Bazaar, within
sixty (60) days after the date such amount is determined by the Energy
Provider, an amount equal to: (a) the percentage resulting from 66.67% minus
the Actual Percentage, multiplied by (b) the aggregate during such year of
all Contract Capacity Charges paid by all of the Parties plus the Rate
Differential Amount. The Parties shall cause the Energy Provider to undertake
the foregoing calculation and to inform the Parties of the results thereof,
and the amounts, if any, owed by Aladdin to Bazaar, within thirty (30) days
after end of each calendar year during the term of Bazaar's Energy Service
Agreement.
ARTICLE 8
DISPUTE RESOLUTION
8.1 DISPUTES. In the event of a dispute among the Parties or their
representatives with respect to the terms of this Agreement, the Parties and
their representatives shall seek to resolve such dispute at a meeting of the
Management Committee.
8.2 ARBITRATION. In the event the Parties or their representatives
are unable to resolve any dispute, controversy or claim arising out of or in
connection with this Agreement as set forth in Section 8.1 above, any Party
may request in writing that the dispute be referred to the respective senior
level management of each Party for decision. Such managers shall meet
immediately and attempt in good faith to negotiate a resolution of the
dispute. If the managers are unable to resolve the matter within thirty (30)
days of the written request referring the matter to them, any Party may,
within thirty (30) days following the end of such thirty (30) day period,
elect to refer the matter to arbitration and the dispute shall be settled by
binding arbitration in accordance with the Arbitration Rules of the American
Arbitration Association then in effect.
8.3 ARBITRATORS. There shall be three (3) arbitrators selected in
accordance with the Rules. The arbitration shall be held in the State of
Nevada.
8.4 BINDING DECISION. The decision of the arbitrators shall be final
and binding on the Parties and shall be the sole and exclusive remedy
regarding any claims, counterclaims, issues or accounting presented to the
arbitrators. Judgment upon the award may be entered by any court having
jurisdiction thereof. The Parties agree to exclude any rights of application
or appeal to the courts of the State of Nevada in connection with any
questions of law arising in the course of the arbitration or with respect to
any award made except for actions to enforce an award.
15
8.5 AWARD. The Party prevailing in any dispute submitted to
arbitration or in any suit filed thereby shall be entitled to a monetary
award for actual damages sustained. Any monetary award shall be made and
payable in U.S. Dollars. The arbitrators shall be authorized to grant
pre-award and post-award interest at commercial rates without there being any
presumption as to whether such interest will be granted. In addition, and in
the event that any Party incurs costs on behalf of another Party and this
Agreement provides that the Party incurring such costs is entitled to
interest on the amounts expended thereby, then such amounts shall bear
interest at a rate equal to the lesser of one and one-half percent (1 1/2%)
per month, or the maximum amount permitted by applicable law, until such
amounts, together with interest accrued thereon, are repaid in full by the
Party causing such costs to be incurred. Unless otherwise ordered by the
arbitrators, the prevailing Party shall be entitled to reasonable costs and
fees, including its share of the costs of the arbitration, and its own
attorneys' fees and expenses. The Parties expressly agree that the
arbitrators shall have no power to consider or award punitive or exemplary
damages.
8.6 BINDING ON PARTIES. This agreement to arbitrate shall be binding
upon the successors, assigns, trustee, receiver or executor of each Party.
8.7 INJUNCTIVE RELIEF. Notwithstanding the foregoing provisions of
this Article 8, each Party specifically acknowledges that monetary damages
alone would be an inadequate remedy for the damages which would be incurred
by a Party as a result of a breach of any of the provisions of this Agreement
by the other Parties. Accordingly, each Party will be entitled to petition a
court or tribunal of competent jurisdiction for injunctive relief to enjoin
any breach or threatened breach of this Agreement by another Party, prior to
or during the pendency of arbitral proceedings.
ARTICLE 9
LIMITATION OF LIABILITY
9.1 LIMITATION OF LIABILITY. Notwithstanding any other provision of
this Agreement, in no event shall the Parties or any of their Affiliates,
subcontractors or vendors, by reason of any of their respective acts or
omissions relating to the design, financing, ownership, construction,
operation or maintenance of the Plant or relating to any of their obligations
under this Agreement, be liable to the other Parties whether in contract,
tort, warranty, negligence, strict liability or otherwise for any special,
indirect, incidental, consequential, punitive, exemplary, or similar damages
arising out of or in connection with this Agreement, or the performance,
non-performance or breach thereof.
ARTICLE 10
REPRESENTATIONS AND WARRANTIES
Each Party hereby represents and warrants to the other Parties that:
(a) It is a duly organized, validly existing
entity of the type described in the introduction to this Agreement and is in
good standing under the laws of the jurisdiction of
16
its formation. It has all requisite power and authority to enter into and to
perform its obligations under this Agreement;
(b) Its execution, delivery and performance of
this Agreement have been authorized by all organizational action on its part
and that of its equity owners (if required), and do not and will not (i)
violate any law, rule, regulation, order or decree applicable to it, (ii)
violate its organizational documents, or (iii) cause a default or cause it to
contravene the terms of any contract to which the Party or its property is
bound;
(c) This Agreement is a legal and binding
obligation of the Party, enforceable against the Party in accordance with its
terms, except to the extent enforceability is modified by bankruptcy,
reorganization and other similar laws affecting the rights of creditors and
by general principles of equity; and
(d) There is no litigation pending or, to the best
of its knowledge, threatened to which that Party or any or its Affiliates is
party that, if adversely determined, would have a material adverse effect on
the financial condition, prospects, or business of that Party or its ability
to perform its obligations under this Agreement.
ARTICLE 11
NOTICES
Except as otherwise provided in this Agreement, all
notices, requests or consents hereunder shall be in writing and shall be
deemed effective when delivered by registered mail or facsimile to the Party
at its address or facsimile number as follows:
If to Aladdin, to:
Aladdin Gaming, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
17
If to Bazaar, to:
Aladdin Bazaar, LLC
c/o TH Bazaar Centers Inc.
▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Aladdin Bazaar Holdings, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and to:
TrizecHahn Centers, Inc.
▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
and to:
Fleet National Bank
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ BOF 11C
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Real Estate Finance
If to the Energy Services Liaison, to:
[-----------------]
If to the Energy Services Provider, to:
Northwind Aladdin, LLC
c/o UTT Holdings, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Manager
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
18
with a copy to:
Northwind Aladdin, LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Manager
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Any Party may change its address or facsimile number to which notices are to
be directed to it by written notice to the other Parties in the manner
provided above. Any notice sent to one Party must be sent to all Parties in
the manner provided above.
ARTICLE 12
MISCELLANEOUS
12.1 GOVERNING LAW. This Agreement shall be interpreted in
accordance with and governed by the laws of the State of Nevada.
12.2 ASSIGNMENT. Any assignment of any or all of a Party's interests
hereunder or to the Project Agreements shall only be made upon the prior
written approval of the other Parties hereto, which approval will not be
unreasonably withheld; PROVIDED, HOWEVER, that any Party may assign any or
all of its interests hereunder to: (i) any of its lenders; or (ii) any
Affiliate of such party or to any party acquiring such Party's portion of the
Complex or all of the interests in such Party without the approval of the
other Parties. The assigning Party under (ii) above shall be released from
all duties, liability and obligations hereunder upon the assumption by the
assignee of all the assigning Party's duties and obligations hereunder. No
assignment shall relieve, release or discharge the assigning Party of its
obligations hereunder, except as expressly provided herein. All references
herein to Aladdin and Bazaar shall include their successors and assigns with
respect to all or any portion of the Complex. In addition, and
notwithstanding anything to the contrary contained herein, one or more
Parties shall have the right to assign rights and obligations under this
Agreement to the Aladdin Music Project. Upon the assumption by the Aladdin
Music Project of the rights and obligations hereunder and the execution by
the Aladdin Music Project and the Energy Provider of an Energy Service
Agreement in substantially the identical form executed by the Parties, the
Aladdin Music Project shall become a Party hereunder with all of the rights
and obligations of the other Parties hereunder as if the Aladdin Music
Project had executed this Agreement as of the date hereof.
12.3 RELATIONSHIP OF PARTIES. The Parties understand and agree that
none of the Parties is an agent, employee, contractor, vendor, representative
or partner of any other Party and that they shall not hold themselves out as
such to third-parties.
12.4 INTEGRATION. The terms and provisions contained in this
Agreement set forth the entire agreement of the Parties with respect to the
subject matter hereof and supersede and terminate all previous undertakings,
representations and agreements, both oral and written, between any one or
more of the Parties with respect to the Plant.
19
12.5 SEVERABILITY. If any of the provisions of this Agreement are
held to be invalid or unenforceable under the applicable law of any
jurisdiction, the remaining provisions shall not be affected, and any such
invalidity or unenforceability shall not invalidate or render unenforceable
that provision in any other jurisdiction. In that event, the Parties agree
that the provisions of this Agreement shall be modified and reformed so as to
effect the original intent of the Parties as closely as possible with respect
to those provisions that were held to be invalid or unenforceable.
12.6 NON-RECOURSE. The obligations of the Parties under this
Agreement are obligations of the Parties only, and no recourse shall be
available against any officer, director or member of a Party.
12.7 NO ORAL MODIFICATIONS. This Agreement may not be amended or
modified except by written agreement signed by each of the Parties.
12.8 EFFECTIVE DATE; TERM. This Agreement shall become effective as
of the Effective Date and shall continue in full force and effect until the
termination of either of the Energy Service Agreements.
12.9 OBSERVANCE OF LAWS. Each Party shall comply with, and shall
cause its Affiliates to comply with, all applicable laws, rules and
regulations of the United States and the State of Nevada, or any other
jurisdiction that is or may be applicable to the Parties and their
Affiliates' activities in connection with the Plant. Any proven breach of
this obligation shall be a material breach of this Agreement.
12.10 WAIVER. The waiver of any breach of any of the terms or
conditions hereof shall not be deemed a waiver of any other or subsequent
breach, whether of like or different nature. No failure to exercise and no
delay in exercising, on the part of any Party hereto, any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any right, power or privilege hereunder preclude any
other or further exercise thereof.
12.11 NO THIRD-PARTY BENEFICIARIES. This Agreement is solely for the
benefit of the Parties and their respective successors and permitted assigns,
including lenders, and this Agreement shall not otherwise be deemed to confer
upon or give to any other third-party, including but not limited to the
Energy Provider, any remedy, claim, reimbursement, cause of action or other
rights, except that the Energy Provider may rely upon this Agreement in
dealing with the Energy Services Liaison and/or the Management Committee, and
the Energy Provider agrees to be bound by and/or undertake the obligations
set forth in and pursuant to Sections 2.5, 7.2, and 7.5 hereof.
Notwithstanding anything contained herein, the Energy Provider shall have no
obligations hereunder or be bound by the terms hereof other than under
Sections 2.5, 7.2 and 7.5.
12.12 FURTHER ASSURANCES. Each Party shall procure all acts,
matters, and things and the execution or signature of all other and further
deeds and documents to give full effect to the provisions of this Agreement.
20
12.13 COUNTERPARTS; DELIVERY. This Agreement may be executed in more
than one counterpart, each of which shall be deemed to be an original, but
all of which together shall constitute one and the same document. Delivery of
executed signature pages may be accomplished by facsimile transmission.
12.14 ESTOPPEL CERTIFICATES. The Parties agree to provide to the
other Parties hereto, from time to time, upon request, one or more
commercially reasonable estoppel certificates confirming the matters set
forth herein.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be executed by their duly authorized officers as of the day and year first
above written.
ALADDIN GAMING, LLC,
a Nevada limited-liability company
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President & Chief Executive Officer
ALADDIN BAZAAR, LLC,
a Delaware limited-liability company
By: TH Bazaar Centers, Inc.,
a Delaware corporation, Member
By: /S/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President, Finance & Treasurer
By: Aladdin Bazaar Holdings, LLC,
a Nevada limited-liability company, Member
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary/Treasurer
21
The undersigned hereby acknowledges and agrees to be bound by the provisions of
Sections 2.5, 7.2, 7.5, and 12.11 hereof and to accept the performance by
Aladdin, Bazaar and any subsequent permitted Party hereto of their obligations
under their respective Energy Services Agreements as provided in this Agreement
and agrees to deliver and accept notices, information and materials as provided
for herein.
NORTHWIND ALADDIN, LLC,
a Nevada limited-liability company
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Manager
22
EXHIBIT A
DEFINED TERMS
"Affiliate" means, with respect to a Party, (i) any of the other
Parties or (ii) any entity which is controlled by, under common control with
or controls such Party.
"Aladdin" means Aladdin Gaming, LLC, a limited liability company
organized under the laws of the State of Nevada.
"Aladdin Hotel and Casino" means the Hotel, together with the
Casino, a 1,400-seat production showroom, six restaurants and a newly
renovated 7,000 seat Theater of the Performing Arts.
"Aladdin Music Project" means the developer of a hotel of
approximately 1,000 rooms and a casino with a music and entertainment theme
to be located adjacent to the Aladdin Hotel and Casino and the Mall Project.
"Bazaar" means Aladdin Bazaar, LLC, a limited liability company
organized under the laws of the state of Delaware.
"Carpark" means a 4,800-space parking facility to serve the Complex.
"Casino" means a 116,000 square foot casino.
"Chilled Water Plant" is that cost in plant and equipment which in
the good faith opinion of the Energy Provider primarily serves to provide
Chilled Water Services.
"Complex" means the Aladdin Hotel and Casino together with the Sound
Project and the Mall Project.
"Controlling Party" means, for purposes only of that certain Consent
Letter Agreement dated as of May ___, 1999 by Bazaar in favor of State Street
Bank and Trust Company ("SSB&T") with regard to the financing of the Plant,
and except as otherwise agreed by the Parties, or as provided in Section 7.4
of this Agreement, Aladdin, until such time as Aladdin shall be deemed to
have automatically lost its voting rights and rights to control pursuant to
the provisions of Article 4 hereof, at which time "Controlling Party" shall
be Bazaar. The Parties agree to give Energy Provider and SSB&T prompt notice
of the identity of the Controlling Party hereunder from time to time. No
action taken by any Party other than the Controlling Party shall be binding
upon SSB&T.
"Desert Passage" means a high-end themed entertainment shopping mall
with a gross leasable area of approximately 450,000 square feet.
"Development Agreement" means that Agreement between Aladdin and
Northwind Aladdin, LLC, dated as of December 3, 1997, providing for the
development and construction of
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an energy facility to supply the hot water, chilled water and electricity
needs of the Complex, as it may be amended, restated, modified or
supplemented and in effect from time to time.
"Effective Date" means the date of this Agreement's execution.
"Energy Provider" is defined in the second "Whereas" clause hereof.
"Energy Provider Default" means those service failures and defaults
described more fully in Section 1(vii) of Exhibit B hereto, Section 2(iii) of
Exhibit B hereto and in Article 6 of each Energy Service Agreement.
"Energy Services" means the hot water, chilled water and electricity
to be utilized by the Complex.
"Energy Service Agreements" means those agreements between each of
the Parties and Northwind Aladdin, each dated as of September 24, 1998,
providing for the operation of the plant, as they may be amended, restated,
modified or supplemented and in effect from time to time.
"Energy Service Agreements Due Date" means with respect to each
Energy Service Agreement the Due Date, as that term is defined in such Energy
Service Agreements.
"Energy Services Liaison" means that person or persons designated in
accordance with this Agreement to exercise the rights and perform those
duties and obligations as set forth herein.
"Guarantor" means Unicom Corporation.
"Guaranty" means a guaranty of Unicom Corporation pursuant to which
the Guarantor unconditionally and irrevocably guaranties to Aladdin the
performance of the obligations and duties of the Energy Provider under the
Development Agreement to construct and demonstrate "Final Completion" (as
such term is defined in the Development Agreement) of the Plant, subject to a
limitation of the lesser of (i) $30 million or (ii) the "Guaranteed Maximum
Price" (as such term is defined in the Development Agreement) as finally
determined and agreed upon pursuant to the Development Agreement plus interim
operating costs up to the "Substantial Completion Date" (as such term is
defined in the Development Agreement).
"Hotel" means a luxury-themed hotel of approximately 2,600 rooms.
"Initial Term" means a term of twenty (20) years.
"Lease" means that certain Lease between Aladdin and the Energy
Provider dated as of December 3, 1997, to lease a site to the Energy Provider
on which the Energy Provider will construct and operate the Plant pursuant to
the Development Agreement and the Energy Services Agreement, as it may be
amended, restated, modified or supplemented and in effect from time to time.
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"Management Committee" means a committee established by the Parties
pursuant to Article 3 of this Agreement to monitor and supervise the
implementation of this Agreement and certain activities related to the
Project Agreements.
"Mall Project" means the Desert Passage and the Carpark.
"Party Default" means a default by any Party as more fully described
in Article 7 of this Agreement.
"Plant" means the energy facility to be developed and constructed by
the Energy Provider to supply the Energy Services.
"Project Agreements" means those agreements described in the fifth
"Whereas" clause of this Agreement.
"Purchase Notice" means a written notice as described in Section 7.4
of this Agreement.
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EXHIBIT B
ENERGY SERVICES LIAISON: AUTHORITY, DUTIES AND OBLIGATIONS
1. AUTHORITY WITH RESPECT TO THE DEVELOPMENT AGREEMENT. The Parties
agree that the Energy Services Liaison shall be the Management Committee's
primary contact with the Energy Provider with respect to the following:
(i) ACCESS TO WORK. The Energy Services Liaison shall coordinate all
access to the Work by the Management Committee and all inspection of the Work
by the Management Committee;
(ii) MEETINGS. The Energy Services Liaison, together with members of
the Management Committee when appropriate, shall attend all meetings with the
Energy Provider provided for in the Development Agreement;
(iii) ENERGY PROVIDER. The Energy Services Liaison shall receive all
notices and documents delivered by the Energy Provider pursuant to the
Development Agreement;
(iv) CUSTOMER NOTICES AND COMMENTS. The Energy Services Liaison
shall, after receiving direction from the Management Committee, deliver to
the Energy Provider all notices, comments and other documents and information
required by or provided for by the terms of the Development Agreement;
(v) CONSENTS. The Energy Services Liaison shall, after receiving
direction from the Management Committee, deliver to the Energy Provider all
consents required of Aladdin under the Development Agreement;
(vi) CONDEMNATION. The Energy Services Liaison shall serve as the
sole liaison between the Management Committee and the Energy Provider in the
event of a condemnation or eminent domain taking. Unless and until the Energy
Services Liaison has been directed otherwise by the Management Committee, the
Energy Services Liaison shall exercise the rights of the Parties pursuant to
Section 2(k) of the Development Agreement;
(vii) ENERGY PROVIDER DEFAULTS. The Energy Services Liaison shall
monitor the performance of the Work and shall promptly inform the Management
Committee of any Energy Provider default under the Development Agreement and
of any failure by the Energy Provider to comply with any provision of the
Development Agreement. The Energy Services Liaison shall serve as the sole
liaison between the Management Committee and the Energy Provider with respect
to defaults under Section 10 of the Development Agreement or the failure of
the Energy Provider to comply with any section of the Development Agreement.
The Energy Services Liaison shall serve as the sole liaison between the
Management Committee and the Energy Provider with respect to Section 4(b)(iv)
of the Development Agreement;
(viii) CUSTOMER DEFAULTS. The Energy Services Liaison shall serve as
sole liaison to the Energy Provider with respect to Customer Defaults under
Section 10(d) and (e) of the Devel-
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opment Agreement and with respect to the termination options set forth in
Sections 5(c) and 10 (b) thereof;
(ix) REQUEST FOR EPC PROPOSALS.The Energy Services Liaison shall
serve as the sole liaison between the Management Committee and the Energy
Provider with respect to the Energy Provider's selection of an EPC Contractor
pursuant to Section 5 of the Development Agreement. As part of such process,
the Energy Services Liaison shall serve as the sole liaison between the
Management Committee and the Energy Service Provider with respect to the
development of the Plant Scope and with respect to the Parties' requirements
for the energy transfer stations to be included as part of the Plant;
(x) FORCE MAJEURE. The Energy Services Liaison shall serve as the
sole liaison between the Management Committee and the Energy Provider with
respect to Force Majeure Events under Section 11 of the Development Agreement;
(xi) CONTINGENCY PLAN. The Energy Services Liaison shall serve as
the sole liaison between the Management Committee and the Energy Provider
with respect to the Contingency Plan set forth in Section 8(d) of the
Development Agreement; and
(xii) SCOPE CHANGES. The Energy Services Liaison shall serve as the
sole liaison between the Management Committee and the Energy Provider with
respect to Scope Changes, as described in Section 9 of the Development
Agreement.
2. AUTHORITY WITH RESPECT TO THE ENERGY SERVICE AGREEMENTS. The Parties
agree that the Energy Services Liaison shall be the Management Committee's
primary contact with the Energy Provider with respect to the following:
(i) ENERGY PROVIDER NOTICES. The Energy Services Liaison shall
receive all notices delivered by the Energy Provider pursuant to the Energy
Service Agreements;
(ii) CONSENTS. The Energy Services Liaison shall, after receiving
direction from the Management Committee or the applicable Party, deliver to
the Energy Provider all consents required of Aladdin, Music or Bazaar under
the Energy Service Agreements;
(iii) ENERGY PROVIDER DEFAULTS.
1. The Energy Services Liaison shall monitor the
performance of the Plant and, upon a Performance Failure or a Service
Failure, shall notify the Energy Provider of such failure. The Energy
Services Liaison shall serve as sole liaison between the Parties and
the Energy Provider in the event of a Performance Failure or a Service
Failure, each as defined in the Energy Service Agreements, and shall
exercise the rights of the Parties set forth in Section 6.1(a) and
Section 6.1(b) of the Energy Services Agreements.
2. The Energy Services Liaison shall serve as sole
liaison between the Parties and the Energy Provider in the event of a
Service Default. Unless and until the Energy Services Liaison has been
directed otherwise by the Management Committee, the
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Energy Services Liaison shall exercise the rights of the Parties
pursuant to Section 6.1(c)(i) of each Energy Service Agreement.
3. The Energy Services Liaison shall serve as sole
liaison between the Management Committee and the Energy Provider with
respect to defaults under Section 6.1(d) of the Energy Service
Agreements.
(iv) FORCE MAJEURE. The Energy Services Liaison shall serve as sole
liaison between the Management Committee and the Energy Provider with respect to
Force Majeure Events under Article 7 of the Energy Services Agreements.
3. DUTIES WITH RESPECT TO THE DEVELOPMENT AGREEMENT.
(i) ACCESS TO WORK. The Energy Services Liaison shall coordinate all
access by the Management Committee to the Work and all inspection of the Work by
the Management Committee;
(ii) MEETINGS. The Energy Services Liaison shall promptly inform the
Management Committee and the relevant representatives of all meetings with the
Energy Provider provided for in the Development Agreement. The Energy Services
Liaison, together with members of the Management Committee when appropriate,
shall attend all such meetings;
(iii) ENERGY PROVIDER NOTICES AND DOCUMENTS. The Energy Services
Liaison shall promptly deliver to the Management Committee and the relevant
representatives all notices and documents delivered by the Energy Provider
pursuant to the Development Agreement;
(iv) CUSTOMER NOTICES AND COMMENTS. The Energy Services Liaison shall
inform the Management Committee and the relevant representatives of all notices,
comments and other documents and other information to be provided by the
Customer pursuant to the Development Agreement. After receiving direction from
the Management Committee, the Energy Services Liaison shall deliver to the
Energy Provider all such notices, comments and other documents and information;
(v) CONSENTS. The Energy Services Liaison shall inform the Management
Committee and the relevant representatives of all consents required of Customer.
After receiving direction from the Management Committee, the Energy Services
Liaison shall deliver such consents to the Energy Provider;
(vi) CONDEMNATION. The Energy Services Liaison shall promptly notify
the Management Committee and the relevant representatives of any condemnation or
eminent domain taking. The Energy Services Liaison shall serve as the sole
liaison between the Management Committee and the Energy Provider in the event of
a condemnation or eminent domain taking. Unless and until the Energy Services
Liaison has been directed otherwise by the Management Committee, the Energy
Services Liaison shall exercise the rights of the Parties pursuant to Section
2(k) of the Development Agreement;
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(vii) ENERGY PROVIDER DEFAULTS. The Energy Services Liaison shall
monitor the performance of the Work and shall promptly inform the Management
Committee of any Energy Provider default under the Development Agreement and
of any failure by the Energy Provider to comply with any provision of the
Development Agreement. The Energy Services Liaison shall serve as the sole
liaison between the Management Committee and the Energy Provider with respect
to defaults under Section 10 of the Development Agreement or the failure of
the Energy Provider to comply with any section of the Development Agreement.
The Energy Services Liaison shall serve as the sole liaison between the
Management Committee and the Energy Provider with respect to Section 4(b)(iv)
of the Development Agreement;
(viii) REQUEST FOR EPC PROPOSALS.The Energy Services Liaison shall
serve as the sole liaison between the Management Committee and the Energy
Provider with respect to the Energy Provider's selection of an EPC Contractor
pursuant to Section 5 of the Development Agreement. As part of such process,
the Energy Services Liaison shall serve as the sole liaison between the
Management Committee and the Energy Provider with respect to the development
of the Plant Scope and with respect to the Parties' requirements for the
energy transfer stations to be included as part of the Plant;
(ix) FORCE MAJEURE. The Energy Services Liaison shall promptly
notify the Management Committee and the relevant representatives of any Force
Majeure Event under Section 11 of the Development Agreement. The Energy
Services Liaison shall serve as the sole liaison between the Management
Committee and the Energy Provider with respect to such Force Majeure Events;
(x) CONTINGENCY PLAN. The Energy Services Liaison shall promptly
inform the Management Committee of any need to implement the Contingency Plan
set forth in Section 8(d) of the Development Agreement. The Energy Services
Liaison shall serve as the sole liaison between the Management Committee and
the Energy Provider with respect to the Contingency Plan; and
(xi) SCOPE CHANGES. The Energy Services Liaison shall promptly
inform the Management Committee and the relevant representatives of any
request for Scope Change received from the Energy Provider and of any need
for the Management Committee to request a Scope Change. The Energy Services
Liaison shall serve as the sole liaison between the Management Committee and
the Energy Provider with respect to Scope Changes, as described in Section 9
of the Development Agreement.
4. DUTIES WITH RESPECT TO THE ENERGY SERVICE AGREEMENT.
(i) CUSTOMER NOTICES. The Energy Services Liaison shall promptly
inform the Management Committee and the relevant representatives of all
notices required to be delivered to the Energy Provider under the terms of
the Energy Service Agreements, and, in accordance with the directives of the
Management Committee, shall deliver such notices to the Energy Provider;
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(ii) CONSENTS. The Energy Services Liaison shall inform the Management
Committee and the relevant representatives of all consents required of Aladdin
or Bazaar under the Energy Service Agreements, and, in accordance with the
directives of the Management Committee or applicable Party, shall deliver such
notices to the Energy Provider;
(iii) METERING. The Energy Services Liaison shall monitor meter
accuracy generally and meter testing in particular and shall inform the
Management Committee and the relevant representatives if it has reason to
believe that additional meter testing should be undertaken pursuant to Section
3.3 of each of the Energy Service Agreements; and
(iv) ENERGY PROVIDER DEFAULTS.
1. The Energy Services Liaison shall monitor the performance
of the Plant and, upon a Performance Failure or a Service Failure,
shall promptly notify the Energy Provider, the Management Committee
generally and the affected representatives particularly of such
failure. To the extent practicable, the Energy Services Liaison shall
continually update the Chairman and the relevant representatives of the
status of such Performance Failure or Service Failure. Unless and until
given explicit direction to the contrary by the Management Committee,
the Energy Services Liaison shall exercise the rights of the Parties
set forth in Section 6.1(a) and Section 6.1(b) of the Energy Service
Agreements, including but not limited to actions called for under
6.1(b)(ii)(3).
2. The Energy Services Liaison shall promptly notify the
Chairman and the affected representatives of any Service Default. To
the extent practicable, the Energy Services Liaison shall continually
update the Chairman and the affected representatives of the status of
such Service Default. Unless and until the Energy Services Liaison has
been directed otherwise by the Management Committee, the Energy
Services Liaison shall exercise the rights of the Parties pursuant to
Section 6.1(c)(i) of each of the Energy Service Agreements.
3. The Energy Services Liaison shall promptly notify the
Management Committee and the Energy Provider of defaults under Section
6.1(d) of the Energy Service Agreement.
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EXHIBIT C
PARTY INVESTMENT PERCENTAGES
PARTY PERCENTAGE
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Aladdin Gaming, LLC
Aladdin Bazaar, LLC
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