Exhibit 10.8
FOURTH AMENDMENT TO
REDEVELOPMENT AGREEMENT
THIS FOURTH AMENDMENT TO
REDEVELOPMENT AGREEMENT (this “ Fourth Amendment ”)
is made as of June 30, 2005 (the “ Fourth 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
”.
WITNESSETH:
WHEREAS , the Authority and the Developer are parties to
that certain Redevelopment Agreement dated as of December 3,
2003, as amended by (a) that certain First Amendment to
Redevelopment Agreement dated as of October 5, 2004 between
the Authority and Developer (“First Amendment”),
(b) that certain Second Amendment to Redevelopment Agreement
dated as of March 15, 2005 between the Authority and the
Developer, and (c) that certain Third Amendment to
Redevelopment Agreement dated as of May 23, 2005, to be
effective as of March 30, 2005, between the Authority and the
Developer (as amended, 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 Fourth Amendment is an
amendment to the Original Redevelopment Agreement. Unless the
context of this Fourth Amendment otherwise requires, the Original
Redevelopment Agreement and this Fourth Amendment shall be read
together and shall have effect as if the provisions of the Original
Redevelopment Agreement and this Fourth Amendment were contained in
one agreement. In the event of a conflict between the
Original Redevelopment Agreement and this Fourth Amendment, the
Fourth
Amendment shall control absent a manifest intent
to the contrary. After the Fourth 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 Fourth
Amendment.
SECTION 2.
Amendments
. The Original Redevelopment Agreement is
amended as follows:
(a)
After the words “provided
however” in Section 6(a) of the First Amendment,
the language of such Section is deleted and substituted with
the following language:
that a Team Indemnified Claim shall
in no event include (i) any loss, cost, damage, expense or
claim arising from the failure of a Developer Indemnified Party to
comply with the Approved Master Plan or any scope of work approved
by Authority pursuant to the Project Agreements, or (ii) any
loss, cost, damage, expense or claim that would otherwise
constitute a Team Indemnified Claim arising from a Franchise Team
Agreement from and after the date on which either (y) Developer
executes a binding cooperation or other written agreement pursuant
to which Developer evidences Developer’s approval (which
approval shall be in Developer’s sole discretion) of such
Franchise Team Agreement and the effect thereof on the development,
use and operation of the Project Site or (z) the sports team which
is a party to a Franchise Team Agreement executes an unconditional
consent or other written agreement pursuant to which it recognizes
and agrees to operate subject to all of the rights of Developer and
other parties under this Agreement and all Project
Agreements.
(b)
Section 17.7(d) shall be
deleted and replaced with the following:
Notwithstanding anything herein to
the contrary, the duty of the Authority hereunder to pay any
Authority Indemnified Claim shall be reduced by the amount that the
Developer recovers from any third party regarding such Authority
Indemnified Claim.
SECTION 3.
Material
Conditions . This Fourth Amendment is being executed
and delivered on the Development Rights Fee Funding Date. The
parties acknowledge and agree that, as of the Development Rights
Fee Funding Date, all Material Conditions have not been satisfied
or waived but Developer has elected to proceed to make payment of
the Development Rights Fee reserving its Unwind Rights as set forth
in Section 5.2(e)(iii) of the Original Redevelopment
Agreement and Authority has agreed to accept same. Developer
and Authority further acknowledge and agree that, notwithstanding
the fact that all Material Conditions have not been satisfied or
waived, each forever waives
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its right to terminate the Original
Redevelopment Agreement, as amended hereby, based on the failure to
satisfy the Material Conditions.
SECTION 4. Approval
of Master Plan . The Authority has Approved the Master Plan;
provided, however, that Developer acknowledges it retains the
obligation to address those certain items set forth in
Section IV of the memorandum attached hereto as
Exhibit A in accordance with such
memorandum.
SECTION 5.
Traffic and Infrastructure
Improvements .
(a)
With respect to the provisions of
Sections 3.3(d) and 8.2(b)(xi) , the parties
acknowledge that the Authority has committed to pay the amount of
$3,250,000, such commitment anticipated to be satisfied through
payment thereof to the New Jersey Department of Transportation
pursuant to an agreement with such department, or other agreement
of such nature (“NJDOT Agreement”). The Authority
shall not be responsible for payment of any additional amounts
towards construction of the Final Traffic and Infrastructure
Improvements or any other traffic and infrastructure improvements;
provided, however, that such limitation is not intended to relieve
the Authority of its other express financial obligations under this
Agreement.
(b)
With the exception of the $3,250,000
to be funded by Authority, Developer shall be responsible for
paying or causing to be paid all other costs associated with both
on- and off-site Final Traffic and Infrastructure Improvements
(including the Traffic and Infrastructure Cap Amount and any
amounts in excess thereof).
(c)
Pursuant to
Section III(F) of the memorandum attached as
Exhibit A hereto, Developer agrees to expend the amount
of $15,250,000, in a form mutually acceptable to the parties, to
fund priority regional roadway improvements.
SECTION 6.
Public
Financing . In recognition of Authority’s
obligations under Section 3.3(f) of the Original
Redevelopment Agreement, Authority approves the proposed
Infrastructure Conduit Bond Financing Structure Summary attached
hereto as Exhibit B , subject to the Major
Contingencies therein and as such structure may change from time to
time by approval of the parties. Authority shall diligently
cooperate with Developer to implement such financing in accordance
with the time frames that comport with the Summary, as same may
change from time to time by approval of the parties.
SECTION 7.
Small Business Marketing
Plan . Developer’s obligations under
Section 3.6(b) of the Original Redevelopment
Agreement (Small Business Marketing Plan) is deemed satisfied by
Developer’s agreement, made hereby, to contribute of Two
Million Dollars ($2,000,000) pursuant to
Section II.C.12(d) of that certain report entitled
“Hearing Officers’ Report and Recommendations in the
Matter of the Hearings Held on the Proposed Meadowlands Xanadu
Redevelopment Project (April 26-30, 2004)” by the New
Jersey Department of Environmental Protection and the New Jersey
Meadowlands Commission.
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SECTION 8.
Property
Acquisition .
(a)
In the event the Developer is unable
by June 30, 2005 to reach an agreement to acquire fee
ownership of property
