Exhibit 10.5
FIRST AMENDMENT TO
REDEVELOPMENT
AGREEMENT
THIS FIRST AMENDMENT TO
REDEVELOPMENT AGREEMENT (this “ First Amendment
”) is made as of October 5, 2004 (the “ First
Amendment Effective Date ”), by and between the NEW
JERSEY SPORTS AND EXPOSITION AUTHORITY , a public body
corporate and politic with corporate succession and having an
address at Meadowlands Sports Complex, 50 State Route 120, East
Rutherford, New Jersey 07073 (the “ Authority
”), and MEADOWLANDS MILLS/MACK-CALI LIMITED
PARTNERSHIP , a Delaware limited partnership, having an address
at c/o The Mills Corporation, 1300 Wilson Boulevard,
Suite 400, Arlington, Virginia 22209, and its permitted
successors and assigns (the “ Developer
”). The Developer and the Authority are referred to
herein individually as a “ Party ” and
collectively as the “ Parties ”.
W I T N E S S E T H
:
WHEREAS , the Authority and the Developer are parties to
that Redevelopment Agreement dated as of December 3, 2003 (the
“ Original Redevelopment Agreement ”);
and
WHEREAS , the Parties wish to amend the Original
Redevelopment Agreement to modify certain terms and conditions
thereof.
NOW, THEREFORE
, in consideration of the promises
and mutual obligations of the Parties hereto and such other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties intending to be legally bound,
do hereby covenant and agree with each other as follows:
SECTION 1.
Definitions; Effect of
Amendment .
(a)
Capitalized terms
used but not otherwise defined herein shall have the meaning given
to such terms in the Original Redevelopment Agreement.
(b)
This First
Amendment is an amendment to the Original Redevelopment
Agreement. Unless the context of this First Amendment
otherwise requires, the Original Redevelopment Agreement and this
First Amendment shall be read together and shall have effect as if
the provisions of the Original Redevelopment Agreement and this
First Amendment were contained in one agreement. In the event of a
conflict between the Original Redevelopment Agreement and this
First Amendment, the First Amendment shall control absent a
manifest intent to the contrary. After the First Amendment
Effective Date, all references in the Original Redevelopment
Agreement to the “Original Redevelopment Agreement”,
“this Agreement”, “hereto”,
“hereof”, “hereunder” or words of like
import referring to the Original Redevelopment Agreement shall mean
the Original Redevelopment Agreement as amended by this First
Amendment.
SECTION 2.
Empire Tract; Wetlands Mitigation
Bank . The understanding of
the Parties with respect to the Empire Tract and the Wetlands
Mitigation Bank is memorialized in that certain Agreement of even
date by and between the Authority and the Developer, a copy of
which is attached hereto as Exhibit ”A”
(the “ WMB Agreement ”). From and after
the date of execution of the WMB Agreement, all rights, duties and
obligations of the Developer to the Authority relating to the
Empire Tract and the Wetlands Mitigation Bank shall be governed by
the terms and conditions of the WMB Agreement.
SECTION 3.
Exhibit H-1; Existing Sports
Complex Agreements .
(a)
Exhibit ”H-1”
. As
contemplated by Section 3.7(c) of the Original
Redevelopment Agreement, the Parties acknowledge and agree that
Exhibit ”B” attached hereto shall be
Exhibit ”H-1” , and it is further
acknowledged and agreed to be the final list of documents and
agreements that shall constitute the “Existing Sports Complex
Agreements.” It is understood and agreed upon by the
parties hereto that subject to the terms of
Section 3.7(e) of the Original Redevelopment
Agreement and subject to Section 6 below, that
Developer recognizes (i) those Existing Sports Complex
Agreements identified on Exhibit ”H-1” as
Items 1-8 (Giants, Jets, Devils, Nets and Metrostars) (the “
Franchise Team Agreements ”); (ii) those Existing
Sports Complex Agreements identified on
Exhibit ”H-1” as Items 19-21 (Interstate
Developers), Items 33-35 (Continental Airlines), Items 53-54
(Pepsi) and Items 47-49 (Mrs. Fields) (the “ Vendor
Agreements ”), and (iii) the remaining Existing
Sports Complex Agreements listed on
Exhibit ”H-1” , subject to the following
terms and conditions:
(A)
Authority
Representation . Section 16.2 of
the Original Redevelopment Agreement is amended to add the
following additional representations and warranties by the
Authority:
(vii) Except for the
Franchise Team Agreements, Vendor Agreements and those agreements
noted in Section 16.2(viii) below, all of the
remaining Existing Sports Complex Agreements listed on
Exhibit ”H-1” expire or terminate by their
terms (without further rights to renew or extend) prior to
December 20, 2007.
(viii) Those Items
identified on Exhibit H-1 as Items 70, 71 and 73
(Aramark); Items 26 – 27 (Hess), Item 59 (Star Ledger) and
Item 56 (The Record) may extend or be extended beyond
December 20, 2007, but (i) do not have a Material Adverse
Effect on the Developer or the Project, (ii) do not result in
Authority Interference, (iii) breach the non-competition and
other restrictive covenants provided in this Agreement and/or
(iv) do not result in a breach by the Authority of the Project
Agreements.
(B)
Continuing
Covenant . The following shall
be added to the Original Redevelopment Agreement as the last
sentence of Section 3.7(e) : “In addition to the
foregoing, the Authority covenants and agrees to add the following
language to any amendment, modification, extension, or renewal of
any Existing Sports Complex Agreements and/or New Sports Complex
Agreements entered into from and after the date hereof except those
New Sports
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Complex Agreements relating
to naming rights to the Arena or existing advertising inventory at
the Sports Complex: “Notwithstanding anything to the contrary
set forth in this [name of contract, license, agreement etc.] the
rights granted to the [contracting party] shall not extend to any
portion of the Meadowlands Sports Complex located east of New
Jersey Route 120 [other than as expressly permitted under the
Original Redevelopment Agreement with respect to the interior space
of the Arena].”
(C)
Indemnification
.
Section 17.7 shall apply to the provisions of this
Section 3.
(D)
Recognition
and Priority . Subject to the
foregoing and in reliance on Section 6 of this First
Amendment with respect to the Franchise Team Agreements, Developer
reaffirms that Developer recognizes the Existing Sports Complex
Agreements and acknowledges that, subject to the terms and
conditions of the Original Redevelopment Agreement as amended
hereby, the rights granted to Developer and the obligations assumed
by Developer are in all respects subordinate to the rights and
obligations of parties to the Existing Sports Complex
Agreements.
SECTION 4.
Development Rights Fee
.
Section 5.2 is hereby amended as follows:
(a)
Section 5.2(a)(i) of
the Original Redevelopment Agreement is amended so that the
phrase “on the Ground Lease Closing Date” is deleted
and the phrase: “Development Rights Fee Funding Date (as
hereinafter defined)” is substituted therefor.
(b)
Section 5.2 of the
Original Redevelopment Agreement is hereby amended to add a
new Section 5.2 (e) which will supercede the
Parties’ understanding with respect to the timing for the
payment of the Development Rights Fee as well as the conditions for
execution and delivery of the Ground Lease. New
Section 5.2(e) shall be inserted immediately
following the end of Section 5.2(d) of the Original
Redevelopment Agreement as follows:
Section 5.2(e)
. Certain
Modifications; Development Rights Fee Funding Date
.
(i)
Amendments to
Certain Defined Terms . For purposes of this
Agreement, the Ground Lease Closing Date shall be comprised of two
events namely, a Ground Lease Execution Date which shall occur
contemporaneously with the execution of this First Amendment and a
Development Rights Fee Funding Date which the Parties have agreed
shall occur on December 20, 2004, subject to adjustment as
provided below (the “ Development Rights Fee Funding
Date ”). The conditions precedent to the Ground Lease
Execution Date shall be governed by the terms and conditions of
Section 5.2 (e)(ii) below and deemed satisfied
upon execution and delivery of the documents and agreements
identified in Section 5.2(e)(ii) below. The
payment of the Development Rights Fee shall be governed by the
terms of Section 5.2(e)(iii) below. The
conditions precedent to the Development Rights Fee Funding Date
(including without limitation, the Material Conditions) shall be
governed by the terms of the Original Redevelopment Agreement, as
amended hereby. At such time as the Ground
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Lease Execution
Date has occurred, except as expressly modified by the terms and
conditions of this First Amendment or those Project Agreements
executed on the Ground Lease Execution Date, thereafter, the
Development Rights Fee Funding Date shall be used interchangeably
with the defined terms used in the Original Redevelopment Agreement
for the “Ground Lease Closing” and/or “Ground
Lease Closing Date” (hereinafter sometimes collectively, the
“ Ground Lease Closing Date ”).
(ii)
Ground Lease
Execution Date . The additional conditions
precedent to the Ground Lease Execution Date shall be the following
(which when taken together with the execution of the Ground Lease
shall constitute satisfaction of the conditions precedent to the
Ground Lease Execution Date):
(A)
Delivery by
Authority of the fully executed and authorized Second Addendum to
Settlement Agreement by and between the Authority and East
Rutherford (the “ Second Addendum ”);
and
(B)
Delivery by
Authority and Developer of the fully executed and authorized WMB
Agreement.
The Authority
shall continue to hold the Deposit Letter of Credit until the
Development Rights Fee Funding Date.
(iii)
Development
Rights Fee Funding Date . On or prior to the
Development Rights Fee Funding Date, the Material Conditions shall
have been satisfied, and the Parties shall execute and deliver
those documents and agreements contemplated pursuant to the
Approved Master Plan and this Agreement. If prior to
December 20, 2004 either an Unwind Event and/or an Intervening
Event, as such terms are defined in
Exhibit ”C” attached hereto, has occurred
and/or is continuing, the Developer shall have the right to
postpone the Development Rights Fee Funding Date until the earlier
to occur of (A) thirty (30) days following final resolution of
the Unwind Event or Intervening Event, as the case may, or
(B) some earlier date designated by Developer upon thirty (30)
days prior written notice, but in no event later than the Material
Conditions Termination Date (i.e. March 31, 2005). If
the Development Rights Fee Funding Date has not occurred and
Developer has commenced construction activity on the Project Site,
the Developer shall stop construction activity on the Project Site
during the period of any postponement (other than that reasonably
necessary to secure the site to avoid waste or injury). If an
Intervening Event and/or Unwind Event exists on the Material
Conditions Termination Date (March 31, 2005), Developer shall
have the right to either (x) exercise the Unwind Rights described
in Section 5.5 hereinbelow or (y) proceed to the
Development Rights Fee Funding Date, subject to the Development
Rights Funding Date requirements provided herein, but reserving
Developer’s rights to exercise Unwind Rights at any time
thereafter through the Final Unwind Date (as defined below) or
extend the subsequent Tranche Dates as provided hereinbelow. The
period of any
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postponement of
the Development Rights Fee Funding Date shall adjust all dates
provided herein day-for-day including but not limited to the
subsequent Tranche Payment Dates and Final Unwind Date described
below.
On the
Development Rights Fee Funding Date, the Development Rights Fee
shall be paid by Developer in accordance with the terms of this
Agreement; provided , however , that in the event
that (A) the Project Litigation as described on
Exhibit ”D” attached hereto shall not have
been settled or otherwise resolved to the satisfaction of the
Developer or (B) all of the Development Approvals shall not
have been issued by the applicable Governmental Body on or prior to
the Development Rights Fee Funding Date, the Developer may at the
election of Developer deposit the entire Development Rights Fee
into escrow as provided hereinbelow. In the event that
Developer elects to deposit the Development Rights Fee into escrow,
the Development Rights Fee shall be maintained and disbursed as
follows:
(A)
On the
Development Rights Fee Funding Date, Developer shall
(1) deposit the full Development Rights Fee in immediately
available funds into escrow pursuant to a commercially reasonable
and customary escrow agreement prepared by the Title Company and
mutually satisfactory to the Parties (the “ Fee Escrow
”), (2) authorize release from the Fee Escrow a payment
to the Authority in an amount equal to the monies that the
Authority shall become obligated to pay by reason of any required
redemption or defeasance of bonds, notes or other obligations of
the Authority under applicable federal tax law as determined by
bond counsel to the Authority and evidenced to Developer, and, in
the case of the Authority’s State Contract Bonds, 2002
Series B-1 and B-2, the termination of a pro-rata portion of
the Authority’s Interest Rate Exchange Agreement with Merrill
Lynch Capital Services, Inc., resulting from the execution and
delivery of the Component Leases currently estimated to be
approximately Thirty Six Million Dollars ($36,000,000) based on
current interest rates as of October 1, 2004 (the “
Defeasance Payment ”); and (3) authorize the
release from the Fee Escrow a payment in the amount of Twenty Six
Million Eight Hundred Thousand Dollars ($26,800,000)(the “
WMB Payment ”). On the Development Rights Fee
Funding Date, the Authority shall (X) make payment to the Developer
in the amount provided in the WMB Agreement, subject to the
Developer’s concurrent performance of its obligations under
the WMB Agreement; (Y) defease bonds in an amount equal to the
Defeasance Payment, and (Z) return the Deposit Letter of Credit to
the Developer. The balance remaining in the Fee Escrow
following the disbursement of the Defeasance Payment and the WMB
Payment (the Defeasance Payment and the WMB Payment, collectively,
the “ First Tranche Payment ”) shall be
disbursed subject to the terms and conditions hereof in three
(3) equal installments (together with interest earned thereon
through the date of the applicable Tranche Payment) which shall
each be referred to herein as a “ Tranche Payment
”.
(B)
Ninety (90) days
after the Development Rights Fee
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Funding Date (as
same may have been adjusted as provided herein) (the “
Second Tranche Date ”), Developer shall authorize
release from the Fee Escrow to the Authority a second Tranche
Payment. If an Unwind Event or Intervening Event exists on the
Second Tranche Date, Developer shall have the right to postpone the
Second Tranche Date until the earlier to occur of (1) final
resolution of the Unwind Event or Intervening Event, as the case
may, or (2) ninety (90) days from the Second Tranche Date. If
Developer elects to postpone the Second Tranche Date, the Developer
shall stop construction activity during the period of any
postponement (other than that commercially necessary to secure the
site to avoid waste or injury). If the Intervening Event and/or
Unwind Event has not been resolved within said 90-day period,
Developer shall have the right to exercise the Unwind Rights
described below in Section 5.5 hereinbelow or proceed
with the release of the Second Tranche, reserving Developer’s
rights to exercise Unwind Rights at any time thereafter through the
date of the Final Unwind Date defined below. As provided above, the
period of any postponement of the Ground Lease Closing Date shall
adjust all contractual dates day for day including but not limited
to the subsequent Tranche Payment dates described below and the
Final Unwind Date.
(C)
Ninety (90) days
after the Second Tranche Date as the same may have been adjusted
(the “ Third Tranche Date ”), Developer shall
authorize release from the Fee Escrow to the Authority a third
Tranche Payment. If an Unwind Event and/or Intervening Event
exists on the Third Tranche Date, Developer shall have the same
rights and obligations described above applicable to the second
Tranche Payment and Second Tranche Date.
(D)
Ninety (90) days
after the Third Tranche Date as may have been adjusted (“
Final Tranche Date ”), Developer shall authorize
release from the Fee Escrow to the Authority the final Tranche
Payment, together with any accrued but unpaid interest in the Fee
Escrow. If an Unwind Event and/or Intervening Event exists on
the Final Tranche Date, Developer shall have the same rights and
obligations noted above applicable to the second Tranche Payment
and third Tranche Payment and Second Tranche Date and Third Tranche
Date.
(E)
Notwithstanding anything to the
contrary in this Section 5.2(e) , after the First
Amendment Effective Date, upon the occurrence of an Unwind Event,
Developer shall have the right at any time thereafter through the
Final Unwind Date (as defined in Section 5.5 below) to
exercise the Unwind Rights in accordance with
Section&
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