EXHIBIT 4.5(b)
EXECUTION COPY
2ND AMENDMENT TO
SECOND AMENDED & RESTATED
DEVELOPMENT SERVICES AGREEMENT
THIS 2ND AMENDMENT TO SECOND AMENDED
& RESTATED DEVELOPMENT SERVICES AGREEMENT (the
“Agreement”) is made as of the 21st day of December,
2004, by and among the Stockbridge-Munsee Band of Mohican Indians
of Wisconsin, a federally recognized Indian tribe (hereafter
referred to as the “Tribe”), the Stockbridge-Munsee
Tribal Gaming Authority, an instrumentality of the Tribe,
(hereinafter referred to as the “Authority”), Trading
Cove New York, LLC, a Delaware limited liability company
(hereinafter referred to as the “Developer”), Kerzner
International North America, Inc., (formerly Sun International
North America, Inc.) a Delaware corporation (hereinafter referred
to as “KINA”) and Waterford Gaming Group, LLC, a
Delaware limited liability company (hereinafter referred to as
“Waterford”). KINA and Waterford are hereinafter
collectively referred to as the “Developer
Guarantors.”
WHEREAS, the Tribe, the Authority,
the Developer and the Developer Guarantors entered into a Second
Amended & Restated Development Services Agreement dated
February 6, 2002, which agreement was amended pursuant to an
Amendment to Second Amended & Restated Development Services
Agreement dated October 19, 2004 (collectively, the “Second
Amended Agreement”); and
WHEREAS, on December 7, 2004 the
Tribe and the State of New York (“New York”) have
entered into a settlement agreement, a copy of which is attached
hereto and made a part hereof as Exhibit “A” (the
“Settlement Agreement”), pursuant to which the Tribe
has agreed to settle the Land Claim in accordance with the terms
and conditions set forth in the Settlement Agreement;
and
WHEREAS, Section II (A)(3)(k) of the
Settlement Agreement provides, inter alia , that the Federal
Settlement Legislation to be enacted to implement its terms shall
provide that the Tribe will be substituted as a defendant in place
of the United States in any action by another Indian tribe claiming
that the Federal Settlement Legislation resulted in a taking of its
property rights under the Fifth Amendment, United States
Constitution, to land or natural resources or claims thereto, that
are the subject of the claims asserted in the action now pending in
the Untied States District Court for the Northern District of New
York entitled Stockbridge-Munsee Community vs. The State of New
York, (Civil Action 86-CV-1140); and that, under the terms of
the Settlement Agreement, the Federal Settlement Legislation must
provide that the aggregate of damages awarded in such actions, if
any, not exceed the sum of Thirty Five Million ($35,000,000)
dollars, and that any recovery by the Oneida Indian Nation of New
York (the “Nation”) be offset by the value of benefits
received by the Nation pursuant to the Federal Settlement
Legislation; and further that any such damages award may be paid
out over a period not to exceed ten (10) years.
WHEREAS, Section II (A)(3)(j) of the
Settlement Agreement provid
