Exhibit 10.66
FIRST AMENDMENT TO
LIMITED PARTNERSHIP
AGREEMENT
OF
MEADOWLANDS MILLS/MACK-CALI
LIMITED PARTNERSHIP
THIS FIRST AMENDMENT TO LIMITED
PARTNERSHIP AGREEMENT OF MEADOWLANDS MILLS/MACK-CALI LIMITED
PARTNERSHIP (this “ First Amendment ”) is
entered into as of this 30th day of June, 2005 (the “
First Amendment Effective Date ”), by
and between (i) MEADOWLANDS MILLS LIMITED PARTNERSHIP, a
Delaware limited partnership (“ Mills ”), as
both a general partner and a limited partner, (ii) MACK-CALI
MEADOWLANDS ENTERTAINMENT L.L.C., a New Jersey limited liability
company (“ MC Partner ”), as a limited partner,
and (iii) MACK-CALI MEADOWLANDS SPECIAL L.L.C., a New Jersey
limited liability company (“ Special General Partner
” or “ MCGP ”), as the Special General
Partner. Mills also shall hereinafter be referred to as the “
Mills Partner ” or the “ Managing General
Partner ” and MC Partner and Special General Partner,
together, shall hereinafter be referred to as the “
Mack-Cali Partners ” or the “ MC
Partners. ”
RECITALS
WHEREAS, pursuant to the Certificate
filed in the Office of the Secretary of State of Delaware on
October 10, 2003, the Partners formed Meadowlands Mills/Mack-Cali
Limited Partnership (the “ Partnership ”) as a
limited partnership pursuant to the provisions of the Delaware LP
Act;
WHEREAS, in connection with the
formation of the Partnership, Mills and the MC Partners
entered into that certain Limited Partnership Agreement of
Meadowlands Mills/Mack-Cali Limited Partnership (the “
Initial Agreement ”) executed on November 25,
2003 and effective on the Effective Date;
WHEREAS, subsequent to the execution
of the Initial Agreement, the Partners entered into that certain
letter agreement dated as of December 22, 2003 (the “
December 2003 Letter Agreement ”) addressing certain
changes to the Initial Agreement due to certain scrivener’s
errors, as more particularly described in the
December 2003 Letter Agreement (the Initial Agreement, as
amended by the December 2003 Letter Agreement, is referred to
herein as the “ Original Agreement
”);
WHEREAS, prior to the First
Amendment Effective Date and pursuant to that certain Consent of
Partners dated October 5, 2004, the Partnership entered into the
following documents: (i) that certain First
Amendment to Redevelopment Agreement dated as of October 5, 2004
(the “ RDA First Amendment
”) by and between the NJSEA and the Partnership,
(ii) that certain Agreement dated as of
October 5, 2004 (the “ WMB
Agreement ”) by and between the NJSEA and the
Partnership memorializing the understanding of such parties
signatory thereto with respect to the Empire Tract and the Wetlands
Mitigation Bank (as defined therein) (such WMB Agreement is also
referred to in the RDA First Amendment as the “WMB
Agreement”),
(iii) that certain Master
Ground Lease dated as of October 5, 2004 (the “
Master Ground Lease ”), by and between the NJSEA, as
the landlord thereunder, and the Partnership, as the tenant
thereunder, respecting the lease of the Development Land,
(iv) that certain Conservancy Trust Agreement dated as of
October 5, 2004 (the “ Conservancy Trust
Agreement ”) by and between the Partnership and the
Meadowlands Conservation Trust (the “ Conservation
Trust ”);
WHEREAS, concurrently with the
execution of the agreements set forth in the immediately preceding
Recital and in order to set forth certain understandings of the
Partners in connection with an Unwind Event (as defined in the
Redevelopment Agreement) and in order to set forth the
Partners’ agreement to enter into this First Amendment,
representatives of the Partners entered into that certain letter
agreement dated as of October 5, 2004 addressed to Mr. Kenneth
Parent of TMC from Mitchell E. Hersh of MCRC (the “
October 5 th Letter Agreement
”);
WHEREAS, prior to the First
Amendment Effective Date and pursuant to that certain Consent of
Partners dated October 7, 2004, the Partnership also entered into
the following documents: (i) that certain Purchase
Agreement dated as of October 8, 2004 between the
Partnership and Empire (the “ Empire Purchase
Agreement ”) providing for, among other things, the sale
of Empire’s interest in the Empire Tract to the Partnership
(or its subsidiary) for an aggregate purchase price paid to Empire
of $17,850,000 together with the payment to Empire of the Special
Fee described on Exhibit K
attached to the Original Agreement in the amount of $1,000,000,
(ii) that certain Purchase Agreement dated as of
October 8, 2004 between the Partnership and Lazare (the
“ Lazare Purchase Agreement ”) providing for,
among other things, the sale by Lazare of Lazare’s right to
acquire a capital interest as a limited partner in the Partnership
for an aggregate purchase price paid to Lazare of $7,650,000,
together with the payment to Lazare of the Special Fee described on
Exhibit K attached to the
Original Agreement in the amount of $500,000, (iii) that
certain letter agreement dated as of October 8, 2004
between the Partnership and Lazare (the “ Lazare Letter
Agreement ”), providing for the Partnership to pay a
consulting fee of $80,000 per year (the “ Revised Lazare
Consulting Fee ”) until the occurrence of certain events
or dates as provided in such letter agreement, (iv) that
certain letter agreement dated as of October 8, 2004
between the Partnership and Terminal Construction Company (“
Terminal ”), providing for the payment to Terminal of
the Special Fee described on Exhibit
K attached to the Original Agreement in the amount of
$500,000, (v) that certain Mutual General Release dated as of
October 8, 2004 among Empire, Lazare, the Partnership, the Kan Am
Partners, Mills and Mills LLC, and (vi) that certain General
Assignment dated as of October 8, 2004 between the Partnership and
Empire (the agreements described in this Recital are collectively
referred to herein as the “ Empire Tract Agreements
”);
WHEREAS, from and after the
execution of the Lazare Letter Agreement, all references in the
Original Agreement (as herein amended) to “ Lazare
Consulting Fee ” shall mean and refer to the Revised
Lazare Consulting Fee and the Lazare Consulting Fee shall be
payable by the Partnership pursuant to Section 9.9 of the
Original Agreement as and to the extent provided in the Lazare
Letter Agreement;
WHEREAS, the Partnership is
obligated, under Paragraph 8 of the Conservancy Trust
Agreement, to pay an annual payment in the amount of $100,000 (the
“ WMB Annual
2
Payment ”) to the Conservation Trust for a maximum
time period of 75 years as more particularly provided in the
Conservancy Trust Agreement;
WHEREAS, until no longer payable
pursuant to the Conservancy Trust Agreement, the WMB Annual Payment
shall be an expense of the Partnership and shall be included
automatically in the Development Budget and all subsequent Budgets
and, therefore, the inclusion thereof in a Budget shall not require
the Approval of the Partners;
WHEREAS, prior to the First
Amendment Effective Date and pursuant to the WMB Agreement, the
Conservancy Trust Agreement and the Empire Tract Agreements, the
Empire Tract was conveyed to the Conservation Trust and the amounts
contemplated in the Empire Tract Agreements that were required to
be paid by the Partnership and/or Mills Partner in connection with
such conveyance were so paid (and the Lazare Consulting Fee shall
hereinafter be paid pursuant to Section 9.9 of the Original
Agreement as and to the extent provided in the Lazare Letter
Agreement, and the WMB Annual Payment shall hereinafter be paid as
and to the extent provided in the Conservancy Trust
Agreement);
WHEREAS, as a result of the
consummation of the transactions contemplated in the Empire Tract
Agreements, the Partnership’s only surviving financial
obligations to Empire, Terminal or Lazare are set forth in the
Lazare Letter Agreement;
WHEREAS, pursuant to a written
consent of the Partners, the Partners entered into that certain
Second Amendment to Redevelopment Agreement by and between the
NJSEA and the Partnership dated as of March 15, 2005 to be
effective as of November 26, 2004;
WHEREAS, pursuant to a written
consent of the Partners, the Partners entered into that certain
Third Amendment to Redevelopment Agreement by and between the NJSEA
and the Partnership dated as of May 23, 2005 to be effective as of
March 30, 2005;
WHEREAS, concurrently with the
execution of this First Amendment, the Partners are entering into
that certain Fourth Amendment to Redevelopment Agreement by and
between the NJSEA and the Partnership dated on or about the First
Amendment Effective Date (the “ Fourth RDA Amendment
”); and
WHEREAS, the Partners desire to
enter into this First Amendment to amend the Original Agreement to
address certain matters arising out of the execution of the
agreements and the transactions described above and to address
certain other matters, as hereinafter set forth.
NOW THEREFORE, in consideration of
the foregoing, and of the covenants and agreements hereinafter set
forth, it is hereby agreed as follows:
1.
Incorporation of Recitals . The foregoing Recitals to
this First Amendment are hereby incorporated in and made a part of
this First Amendment to the same extent as if set forth in full
herein.
2.
Defined Terms
. Each capitalized term used herein but not
defined herein shall have the meaning ascribed to it in the
Original Agreement.
3
3.
Revised Definitions (Section 1.1 of Original
Agreement) . The definitions of Unrecovered Empire Tract
Costs, Unreturned MC Partner Capital Contributions Account and
Unreturned Mills Partner Capital Contributions Account set forth in
Section 1.1 of the Original Agreement are hereby deleted in
their entirety and the following definitions substituted in their
stead:
“ Unrecovered Empire Tract
Costs ” shall mean the amount of $60,000,000 (such
$60,000,000 being determined as provided in Section 4.C. of the
First Amendment) less reductions pursuant to Section 6.6(vi)
(including any reductions pursuant to Section 6.6(vi) in
connection with any deemed distribution pursuant to
Section 10.6.7.1).
“ Unreturned MC Partner
Capital Contributions Account ” shall mean an account
maintained for internal bookkeeping purposes by the Partnership for
the Mack-Cali Partners, which account, as of any date, shall equal
the sum of all capital contributed by the Mack-Cali Partners as of
such date, reduced (but not below zero) by all Partnership
distribution to the Mack-Cali Partners pursuant to Sections
5.2.4(j), 6.6(v), 6.7.3.3.1(i), 6.7.3.3.1(iii), 6.7.3.3.2(i),
6.7.3.3.2(ii) and 6.7.3.3.2(iv) and by all deemed Partnership
distributions to the Mack-Cali Partners pursuant to Section
10.6.7.1 that are deemed to be distributed pursuant to
Section 6.6(v).
“ Unreturned Mills Partner
Capital Contributions Account ” shall mean an account
maintained for internal bookkeeping purposes by the Partnership for
the Mills Partner, which account, as of any date shall equal the
sum of all capital contributed by the Mills Partner as of such
date, reduced (but not below zero) by all Partnership distributions
to Mills Partner pursuant to Sections 5.2.4(e), 6.6(iv), 6.6(v),
6.6(vi), 6.7.2.1, 6.7.3.3.1(i), 6.7.3.3.1(ii), 6.7.3.3.1(iii),
6.7.3.3.1(iv), 6.7.3.3.2(ii), 6.7.3.3.2(iii), 6.7.3.3.2(iv) and
6.7.3.3.2(v) of this Agreement and as provided in subclauses (ii)
and (iii) of the second sentence of Section 4.C of the First
Amendment, and by all deemed Partnership distributions to Mills
Partner pursuant to Section 10.6.7.1 that are deemed to be
distributed pursuant to Sections 6.6(iv), 6.6(v) or
6.6(vi).
A.
Conveyance of Empire
Tract . Prior to the
First Amendment Effective Date, in accordance with the WMB
Agreement, the Conservancy Trust Agreement and the Empire Tract
Agreements and as contemplated by Section 6.10.5 of the
Original Agreement, the Mills Partner acquired the Empire/Lazare
Partnership Interest, including the Empire/Lazare Participation and
caused the Empire Tract to be conveyed by Empire to a subsidiary of
the Partnership which, in turn, conveyed the Empire Tract to the
Conservation Trust. As a result thereof, the Original Agreement
shall be amended as follows:
4
(i)
Section 6.10
. The second and third sentences of
Section 6.10 of the Original Agreement are hereby deleted in their
entirety and the following substituted in their stead:
Pursuant to the Redevelopment
Agreement, the Empire Tract will not be developed with an
entertainment/retail complex as originally contemplated by the
terms of the Mills LP Agreement, but, rather, prior to the First
Amendment Effective Date, Mills and the Partnership caused the
Empire Tract to be conveyed to the Meadowlands Conservation Trust
pursuant to the WMB Agreement. In connection therewith, the
Partnership shall receive certain WMB Purchase Price Proceeds (as
hereinafter defined), may receive certain Alternative Sublease Rent
(as hereinafter defined) and may realize certain Development Cost
Savings (as hereinafter defined).
(ii)
Section 6.10.1
. The payment of the Empire/Lazare
Participation contemplated in Section 6.10.1 of the Original
Agreement shall no longer occur and, as a result thereof,
Sections 6.5 and 6.6 of the Original Agreement shall be
amended as provided in Sections 5 and 6 of this First
Amendment.
(iii)
Section 6.10.2
. Section 6.10.2 of the Original
Agreement is hereby deleted in its entirety and the following
substituted in its stead:
6.10.2
All amounts received (cash or other
consideration) by or on behalf of the Partnership on account of the
Empire Tract, including WMB Purchase Price Proceeds and Alternative
Sublease Rent, shall be distributed and/or allocated and accounted
for, as applicable, pursuant to Section 6.7.2 and the subsections
thereof.
(iv)
Section
6.10.4
. Section 6.10.4 of the Original
Agreement is hereby deleted in its entirety and the following
substituted in its stead:
6.10.4
From and after the First Amendment
Effective Date, no Special Fees shall be payable by the Partnership
(as such Special Fees were paid in connection with the consummation
of the transactions under the Empire Purchase Agreement), and the
Consulting Fee shall be paid by the Partnership in accordance with
Section 9.9 , as and to the extent provided in
the Lazare Letter Agreement, utilizing the funding provided under
the second sentence of Section 5.2.3 hereof.
(v)
Deletion of
Exhibit
B of the Original Agreement . Exhibit B
to the Original Agreement and all references thereto in the
Original Agreement are hereby deleted.
5
B.
Prior Treatment of Empire
Tract Costs . The
Original Agreement contemplated that, should the Partnership enter
into transactions involving the Empire Tract, the proceeds received
by the Partnership from such transactions would be in the form of
cash and, in such event (as more particularly provided in
Section 6.7.2 of the Original Agreement), such proceeds would
be distributed first to the Mills Partner until such time as the
aggregate proceeds received by the Mills Partner were equal to the
aggregate amount of the Empire Tract Costs, with the remainder, if
any, to be distributed to the Partners as if such proceeds were
received in connection with a Major Capital Event. The Original
Agreement also contemplated that the Unrecovered Empire Tract Costs
and the Unreturned Mills Partner Capital Contributions Account
would be reduced, as applicable, in connection with such
distributions of proceeds.
C.
Current Treatment of Empire
Tract Costs . The
Partners now anticipate that the Partnership may receive, in
addition to cash proceeds from transactions involving the Empire
Tract (such cash proceeds to be referred to herein as the “
WMB Purchase Price Proceeds ” and the amount of such
cash proceeds to be equal to the Purchase Price, as defined in the
WMB Agreement and referred to herein as the “ WMB Purchase
Price ”), other consideration in connection with such
transactions consisting of Alternative Sublease Rent and
Development Cost Savings. The Partners hereby agree that
(i) the Unrecovered Empire Tract Costs, effective as of the
First Amendment Effective Date, shall be reduced to the amount of
$60,000,000 (the Partners hereby acknowledge and agree that the
Unreturned Mills Partner Capital Contributions Account shall not
change as a result of such reduction), and (ii) upon receipt and
distribution of the WMB Purchase Price Proceeds , the Unreturned
Mills Partner Capital Contributions Account shall be reduced by the
amount of the WMB Purchase Price, (iii) upon receipt and
distribution of Alternative Sublease Rent, the Unreturned Mills
Partner Capital Contributions Account shall be reduced by the
applicable amount of the Alternative Sublease Rent, (iv) there
shall be no reduction of the Unreturned Mills Partner Capital
Contributions Account on account of the occurrence of any
Development Cost Savings, and (v) the amount of the Unrecovered
Empire Tract Costs shall not be reduced on account of the receipt
and distribution of any of the WMB Purchase Price Proceeds,
Alternative Sublease Rent or Development Cost Savings. As a result,
Section 6.7.2 of the Original Agreement is hereby deleted in
its entirety, and the following is substituted in its
stead:
6.7.2
Transactions Involving the
Empire Tract .
Notwithstanding anything to the contrary in Section 6.6, WMB
Purchase Price Proceeds derived from or in connection with a
transaction involving the Empire Tract as described in Section 6.10
and as described in this Section 6.7.2, shall be allocated and
distributed as hereinafter provided in this Section
6.7.2.
6.7.2.1
Cash Proceeds Received from
the NJSEA or an Alternative Sublease . Should WMB Purchase Price Proceeds or
Alternative Sublease Rent be received by the Partnership, then WMB
Purchase Price Proceeds received from the NJSEA or net Alternative
Sublease Rent (that is,
6
Alternative Sublease Rent after
payment of all costs incurred in connection with the procurement of
such Alternative Sublease (including leasing commissions paid to
third parties that are not Affiliated with Mills Partner, tenant
inducements, allowances or buildout)), as applicable, shall be
allocated and distributed to the Mills Partner.
The RDA First Amendment contemplates
that, on the Development Rights Fee Funding Date (as defined in the
RDA First Amendment), the NJSEA shall authorize release from the
Fee Escrow (as defined in the RDA First Amendment) a payment to the
Partnership in the amount of the WMB Purchase Price. The
Partners acknowledge and agree that such payment shall constitute
WMB Purchase Price Proceeds notwithstanding that the source of such
payment was the Development Rights Fee paid by the Partnership to
the NJSEA.
As used herein, an “
Alternative Lease Transaction ” shall mean a lease
transaction wherein the Partnership, a subsidiary of the
Partnership, a Sibling Entity or a Component Entity, as applicable,
as tenant (an “ Alternative Lease Tenant ”),
leases land (the “ Alternative Lease Premises ”)
from a third party as a direct result of an alternative to the
creation of a wetlands mitigation bank on the Empire Tract. As used
herein, an “ Alternative Sublease ” shall mean a
sublease between the Alternative Lease Tenant, as sublandlord, and
a third party, as subtenant, of all or a portion of the Alternative
Lease Premises, and “ Alternative Sublease Rent
” shall mean rent payable by a subtenant under an Alternative
Sublease.
6.7.2.2
Development Cost Savings Realized . It is anticipated
that the NJSEA shall relieve the Partnership of certain development
or payment obligations under the Redevelopment Agreement (such
relief, “ Development Cost Savings ” and the
occurrence of such relief, a “ Development Cost Savings
Event ”). Neither the Unrecovered Empire Tract Costs nor
the Unreturned Mills Partner Capital Contributions Account shall be
reduced upon or in connection with the occurrence of a Development
Cost Savings Event.
5.
Section 6.5
. Section 6.5 of the Original Agreement is hereby
deleted in its entirety and the following is hereby substituted in
its stead:
6.5
Distribution of Net Ordinary
Cash Flow . Except as
otherwise provided in Sections 6.7, 6.8, 6.10 and 13.2.4, the
Partnership shall distribute Net Ordinary Cash Flow to the Partners
(after payment of any (a) NJSEA Profit Participation,
7
(b) accrued but unpaid interest and
then unpaid principal on any outstanding Default Loans, (c) accrued
but unpaid interest and then unpaid principal on any Partners
Loans, or portions thereof, that are not subject to Section
5.3.1.2, and (d) accrued but unpaid return on any Guaranty Payment
that is not an Equity Guaranty Payment and then the unpaid portion
of the Guaranty Payment) as and when reasonably determined by the
Managing General Partner in accordance with applicable Budgets, but
not less frequently than quarterly, in the following order of
priority:
(i) First,
to the Mills Partner in payment of any accrued but unpaid Mills
Return;
(ii) Second,
to the Mack-Cali Partners in payment of any accrued but unpaid MC
Return;
|
(iii)
|
Intentionally omitted;
|
|
|
(iv)
|
Intentionally omitted;
and
|
|
(v)
|
Third, to the Partners in proportion
to their respective Percentage Interests.
|
6.
Section 6.6 . Section 6.6 of the Original Agreement
is hereby deleted in its entirety and the following is hereby
substituted in its stead:
6.6
Distributions Upon Major
Capital Event .
Except as otherwise provided in Sections 6.7, 6.8, 6.10 and Section
13.2.4, Major Capital Event Proceeds shall be allocated and
distributed among the Partners (after payment of any:
(a) accrued but unpaid interest and then unpaid principal on
any outstanding Default Loans; (b) accrued but unpaid interest
and then unpaid principal on any Partners Loans, or portions
thereof, that are not subject to Section 5.3.1.2; and (c) accrued
but unpaid return on any Guaranty Payment that is not an Equity
Guaranty Payment and then the unpaid portion of the Guaranty
Payment), on a cumulative basis, as follows:
(i) First,
to the Mills Partner in payment of any accrued but unpaid Mills
Return;
(ii) Second,
to the Mack-Cali Partners in payment of any accrued but unpaid MC
Return;
|
(iii)
|
Intentionally omitted;
|
(iv) Third,
to the Mills Partner until the Unreturned Mills Partner Capital
Contributions Account (for this purpose, reduced by any Unrecovered
Empire Tract Costs) is reduced to $130,000,000 or such lesser
amount as shall be determined under Section 5.2.3.2(a) or such
greater amount as shall be determined under
Section 5.2.3.3.(a);
8
(v) Fourth,
to the Mills Partner and the Mack-Cali Partners in proportion to
their respective Percentage Interests until the Unreturned MC
Partner Capital Contributions Account is reduced to
zero;
(vi) Fifth,
to the Mills Partner, until its Unreturned Mills Partner Capital
Contributions Account is reduced to zero;
|
(vii)
|
Intentionally omitted;
and
|
|
|
(viii)
|
Sixth, to the Partners in proportion
to their respective Percentage Interests.
|
7.
Article 10; Take Down of Hotel Component . Article 10
of the Original Agreement contemplated that the MC Partners may
develop the Hotel Component in 2 phases utilizing 2 Component
Entities, each with a hotel of not less than 260 rooms. The
Component Lease for the Hotel Component being executed concurrently
with this First Amendment requires the Hotel Component to be Taken
Down and developed as one Component, rather than in 2 phases or
Components. Therefore, the Partners acknowledge and agree that the
MC Partners may not Take Down or develop the Hotel Component in
phases but, rather, any Take Down of the Hotel Component shall
require a Take Down and development of the entire Hotel Component
(such development to be subject to the third sentence of
Section 10.2.1 of the Original Agreement, as amended as
provided in Section 7.A of this First Amendment), and all
references in the Original Agreement to a Take Down or development
of the Hotel Component in phases shall be deleted such that the
Original Agreement shall only refer to and contemplate the Take
Down and development of the entire Hotel Component. For example,
Section 10.2 of the Original Agreement refers to the Special
General Partner being obligated to Take Down the first phase of the
Hotel Component upon its exercise of either the Four Year
Office/Hotel Development Option or the Six Year Office/Hotel
Development Option. As a result of the foregoing provisions of this
Section 7, such reference in Section 10.2 shall be amended and
interpreted to require that the Special General Partner shall be
obligated to Take Down the entire Hotel Component upon its exercise
of either the Four Year Office/Hotel Development Option or the Six
Year Office/Hotel Development Option. As a further example, the
fourth sentence of Section 10.2.1 of the Original Agreement
provides that, if the Applicable Component is the Hotel Component,
then the development contemplated in the Office/Hotel Development
Election Notice must include the first phase of the hotel which
shall not be less than 260 rooms. As a result of the foregoing
provisions of this Section 7, the development contemplated in
such Office/Hotel Development Election Notice must include the
entire hotel which shall not be less than 520 rooms.
A.
Amendment of
Section
10.2.1 of the Original Agreement . The
third sentence of Section 10.2.1 of the Original Agreement is
deleted in its entirety and the following substituted in its
stead:
Upon its exercise of a Office/Hotel
Development Option, the Special General Partner shall have no
obligation to commence construction of the Applicable Component
until the Special General Partner determines in its sole discretion
that certain economic and market conditions as set forth in the
Redevelopment Agreement exist, as applicable, subject to
(x) the Mills Partner’s acceleration
9
rights described in Section 10.3,
(y) the obligation of the managing general partner under
Section 6.9.2.1 to commence development and construction upon
the earlier of the date required under the applicable ROFR
Agreement, if any, and the date that may be agreed upon by the
Partners and set forth in such limited partnership agreement, and
(z) the obligation of the managing general partner set forth
in Section 6.9.2.3 to commence development and construction
upon the earlier of the date required under any applicable
agreement between the Partnership and the NJSEA, if any, and the
date that may be agreed upon by the Partners and set forth in such
limited partnership agreement.
8.
Exercise of Rights and Obligations under Sections
5.2(e) and 5.5 of the Redevelopment Agreement;
Distributions of Unwind Payment; New Section 6.7.3 . To
implement the terms and provisions of the October 5 th
Letter Agreement (it being acknowledged and agreed that, upon the
execution of this First Amendment, the October 5 th
Letter Agreement is null and void and of no further force and
effect), the following Section 6.7.3 is added to the Original
Agreement following Section 6.7.2 of the Original Agreement, as
such Section 6.7.2 is herein amended:
6.7.3
Exercise of Rights and
Obligations under Sections 5.2(e) and 5.5 of the Redevelopment
Agreement; Distributions of Unwind Payment
.
6.7.3.1 Exercise
of Rights and Obligations under Sections
5.2(e) and 5.5 of the Redevelopment Agreement . Subject
to Section 6.7.3.2.B hereof, all exercises of the rights and
obligations of the Partnership under
Sections 5.2(e) and 5.5 of the Redevelopment
Agreement (including, without limitation, all determinations of
whether or not Intervening Events (as defined in the Redevelopment
Agreement) have occurred, whether to exercise the Unwind Rights (as
defined in the Redevelopment Agreement), whether Material
Conditions (as defined in the Redevelopment Agreement) have been
satisfied or whether to waive such Material Conditions, whether to
release Tranche Payments (as defined in the Redevelopment
Agreement), whether to postpone the Development Rights Fee Funding
Date (as defined in the Redevelopment Agreement), whether to stop
construction activity on the Project Site (as defined in the
Redevelopment Agreement) during any postponement pursuant to
Sections 5.2(e) and 5.5 of the Redevelopment Agreement,
whether to proceed to closing notwithstanding that Intervening
Events or Unwind Events have not been resolved by the Material
Conditions Termination Date (as defined in the Redevelopment
Agreement), and whether to complete the Garages (as defined in the
Redevelopment Agreement)), shall not be Major Decisions and shall
not require Approval of the Partners but, rather, shall be
decisions that the Managing General Partner may make on behalf of
the Partnership without requiring the Approval of the Partners.
Notwithstanding the foregoing, the Mills Partner and the MC
Partners agree to mutually cooperate with the other such that the
MC Partners’ reasonable input shall be provided to, and
considered by, the Mills Partner in connection with the Mills
Partner’s determination of whether to
10
exercise the Unwind Rights,
provided, however, that the MC Partners acknowledge and agree that
the ultimate decision of whether or not to so exercise the Unwind
Rights shall be the sole decision of the Mills Partner and not a
Major Decision requiring the Approval of the Partners as
aforesaid.
|
6.7.3.2
|
Effect of
Unwind .
|
A.
Unwind Event Occurs; Notice to
MC Partners .
Concurrently with Managing General Partner’s delivery of a
written notice to the NJSEA electing to the exercise the Unwind
Rights, the Managing General Partner shall provide a copy of such
written notice to the MC Partners. If an Unwind Event (as defined
in the Redevelopment Agreement) shall have occurred and, as a
result thereof, the Partnership shall have elected to exercise the
Unwind Rights in accordance with the provisions of
Section 6.7.3.1 above, then the “ Unwind Payment
” (as defined in the Redevelopment Agreement) (whether
received in a lump sum or paid over time by the NJSEA) and any
other funds received by the Partnership from third parties in
connection with or arising out of the exercise of the Unwind Rights
shall be distributed to Partners as provided in
Section 6.7.3.3 below, and, thereafter, the Managing General
Partner shall dissolve the Partnership as provided in
Article 13 hereof.
B.
No Unwind Event; Unwind Rights
Exercised Over Objections of MC Partners
. If the Mills Partner elects to exercise the
Unwind Rights and such exercise is not as a result of the issuance
of a permanent injunction described in item 1.a. on
Exhibit ”C” attached to the RDA First Amendment,
and if the MC Partners shall have provided written notice of their
reason
|
