A THIRD AMENDMENT TO THE MAY 3, 1996 AGREEMENT
BETWEEN THE CITY OF ATLANTIC CITY AND
MIRAGE RESORTS, INCORPORATED FOR THE
DEVELOPMENT OF THE HURON NORTH REDEVELOPMENT AREA
1. INITIAL RECITALS.
THIS THIRD AMENDMENT (this "Third Amendment") KNOWN AS "A
THIRD AMENDMENT TO THE MAY 3, 1996 AGREEMENT BETWEEN THE CITY OF
ATLANTIC CITY AND MIRAGE RESORTS, INCORPORATED FOR THE DEVELOPMENT OF
THE HURON NORTH REDEVELOPMENT AREA" IS MADE THIS 13th DAY OF
January, 1999 by and between the City of Atlantic City (the "City")
and MAC, CORP. (the Redeveloper"), in consideration of the provisions
set forth hereinafter and the mutual promises contained therein.
WHEREAS, pursuant to Ordinance No. 14 of 1996 adopted by the
City Council of the City of Atlantic City (the "City Council"), the
City entered into a certain agreement known as "An Agreement Between
the City of Atlantic City and Mirage Resorts, Incorporated for the
Development of the Huron North Redevelopment Area" (the "Agreement"),
which Agreement was executed on May 3, 1996; and
WHEREAS, the Redeveloper is the successor by assignment, in
accordance with Section 5.6 of the Agreement, to the rights of Mirage
Resorts, Incorporated in and to the Agreement; and
WHEREAS, pursuant to Ordinance No. 75 of 1997 adopted by the
City Council, the City entered into a certain agreement known as "An
Amendment to the May 3, 1996 Agreement between the City of Atlantic
City and Mirage Resorts, Incorporated for the Development of the Huron
North Redevelopment Area" (the "First Amendment"), which First Amend-
ment was executed on January 8, 1998; and
WHEREAS, pursuant to Ordinance No. 61 of 1998 adopted by the
City Council, the City entered into a certain agreement known as "A
Second Amendment to the May 3, 1996 Agreement Between the City of
Atlantic City and Mirage Resorts, Incorporated for the Development of
the Huron North Redevelopment Area" (the "Second Amendment") and;
WHEREAS, Section 10.5.3 of the Agreement provides that any
amendment to the Agreement must be in writing and specifically recite
that it is being entered into by and between the City and the
EXHIBIT 10.80
Redeveloper with the specific intention to modify the terms of the
Agreement; and
WHEREAS, pursuant to the First Amendment, the City conveyed
the Project Parcels (as defined in the Agreement) to the Redeveloper
by deed (the "Deed") dated January 8, 1998; and
WHEREAS, Marina Associates, a New Jersey General Partnership,
d/b/a Xxxxxx'x ("Xxxxxx'x"), whose sole partners are indirect wholly
owned subsidiaries of Xxxxxx'x Entertainment, Inc., is the owner of
Lot 10 in Block H-18 on the Tax Map of the City ("Lot 10") which is
adjacent to the Project Parcels and located within the Huron North
Redevelopment Area; and
WHEREAS, Lot 10 is used by Xxxxxx'x as a valet surface
parking lot (the "Xxxxxx'x Valet Lot"); and
WHEREAS, Section 6.1 of the Redevelopment Plan for the Huron
North Redevelopment Area (the "Redevelopment Plan") adopted by the
City Council provides that the City does not contemplate the public
acquisition of private parcels; however, the Redevelopment Plan
recognizes that such private parcels may be desirable from a develop-
ment standpoint. The Redevelopment Plan further provides that the
acquisition of, or development rights to, such parcels, if at all, are
to be the sole responsibility of the redeveloper, at its own
initiative and expense; and
WHEREAS, the Redevelopment Plan was amended by City Council
pursuant to Ordinance No. 60 of 1998 (the "Amendment to Redevelopment
Plan"); and
WHEREAS, the Redeveloper has determined that a portion of Lot
10 will be of assistance in the completion of the Project (as defined
in the Agreement); and
WHEREAS, Xxxxxx'x is currently leasing a portion (the
"Xxxxxx'x Intercept Lot") of the Project Parcels from the Redeveloper
consisting of 1,287 surface parking spaces; and
WHEREAS, the Xxxxxx'x Intercept Lot is used by Xxxxxx'x as an
employee parking lot; and
WHEREAS, Xxxxxx'x will be required to vacate the Xxxxxx'x
Intercept Lot in connection with the development of the Project
Parcels; and
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WHEREAS, the Redeveloper and Xxxxxx'x have entered into a
certain agreement known as an "Exchange & Development Agreement" (the
"Exchange Agreement"), which Exchange Agreement was executed July 13,
1998 and is contemplated to be amended in a manner consistent with
this Third Amendment; and
WHEREAS, pursuant to the Exchange Agreement, as amended, the
Redeveloper, subject to the approval of the City by Ordinance
approving this Third Amendment, has agreed to convey a portion of the
Project Parcels shown as the "Mirage Land" on Exhibit A attached
hereto and made a part hereof (the "Mirage Land") to Xxxxxx'x in
exchange for a portion of Xxx 00 xxxxx xx xxx "Xxxxxx'x Xxxx"; and
WHEREAS, Xxxxxx'x desires to acquire the Mirage Land and, in
connection with the portion of Lot 10 to be retained by Xxxxxx'x (as
shown on Exhibit A hereto the "Xxxxxx'x Remainder Land") to develop
the Mirage Land and Xxxxxx'x Remainder Land as a surface parking
facility (the "Xxxxxx'x Project") to replace the Xxxxxx'x Intercept
Lot and Xxxxxx'x Valet Lot, understanding that such initial use shall
not in any manner restrict the future use of the Mirage Land and the
Xxxxxx'x Remainder Land so long as such lands are developed in accor-
dance with the Redevelopment Plan as it may be amended from time-to-
time; and
WHEREAS, at a hearing held on September 16, 1998, the City
Planning Board granted preliminary and final site plan approval for
the Xxxxxx'x Project; and
WHEREAS, Xxxxxx'x has made application for other approvals
in order to develop the Xxxxxx'x Project; and
WHEREAS, pursuant to Section 4.1.1 of the Redevelopment Plan,
surface parking is a permitted use in the Resort Zone (as defined in
the Redevelopment Plan) in which the Mirage Land and the Xxxxxx'x
Remainder Land are located; and
WHEREAS, with respect to the Mirage Land and the Xxxxxx'x
Remainder Land, the public policy goals set forth in Section 3.4 of
the Redevelopment Plan would be satisfied upon the completion of
construction of the Xxxxxx'x Project; and
WHEREAS, Section 4.2.4 of the Redevelopment Plan provides
that while it is the intent of the Redevelopment Plan to develop all
parcels jointly under a comprehensive program for the entire Project
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Area (as defined in the Redevelopment Plan), the City reserves the
right to enter into a redeveloper's agreement for any combination of
said parcels, or to subdivide said parcels into smaller development
tracts should a particular proposal merit such action; and
WHEREAS, pursuant to the Exchange Agreement, the Redeveloper
has requested that the Agreement be amended so as to provide that the
Mirage Land and the Xxxxxx'x Remainder Land be considered a separate
development tract pursuant to Section 4.2.4 of the Redevelopment Plan
and that on the effective date of the City Ordinance approving and
adopting this Third Amendment, the City shall execute and deliver to
the Redeveloper an agreement (the "Deed Modification") in the form
attached as Exhibit "B" hereto; and
WHEREAS, to further maximize the development potential of the
Huron North Redevelopment Area, the Redeveloper, subject to the
approval by the City Council of the Ordinance approving this Third
Amendment, has agreed to convey a portion of the Project Parcels shown
as "Tract A" on Exhibit A (the "Joint Venture Property") to a Joint
Venture (the "Joint Venture") formed and established by the
Redeveloper and Xxxx Atlantic City, Inc. and known as Marina District
Development Company (f/k/a/ Stardust A.C.) for the purpose of, among
other things, developing and operating thereon a facility consisting
of a hotel-casino and related restaurant, entertainment, retail and
other amenities; and
WHEREAS, pursuant to N.J.S.A. 40A:12A-7, the City Council, by
Resolution No. 680 of 1998, directed the City Planning Board to
prepare a report containing the recommendation of the City Planning
Board concerning, among other things, issues involving the said
proposed conveyances to Xxxxxx'x and to the Joint Venture; and
WHEREAS, pursuant to the said direction of City Council, the
City Planning Board, by Resolution Nos. 23A-98 and 22-98
(collectively, the "Planning Board Resolutions"), determined that the
said proposed conveyances are in conformance and consistent with the
Redevelopment Plan for the Huron North Redevelopment Area; and
WHEREAS, City Council has duly considered the Planning Board
Resolutions; and
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WHEREAS, pursuant to Section 5.3 of the First Amendment, the
Redeveloper has requested that the Agreement be amended to provide
that the City consent to the said conveyances of the Mirage Land and
the Joint Venture Property; and
WHEREAS, the State of New Jersey Casino Control Commission
(the "CCC") has, (1) in the case of Xxxxxx'x, granted a gaming
license, (2) in the case of the Mirage Resorts, Incorporated, the
holder of 100% of the stock of the Redeveloper, issued Statements of
Compliance determining, among other things, that Mirage Resorts,
Incorporated was suitable to be a holding company of a casino licensee
and (3) in the case of Xxxx Atlantic City, Inc., issued Statements of
Compliance determining, among other things, that Xxxx Atlantic City,
Inc. has satisfied various eligibility criteria in connection with its
application for a casino license; and
WHEREAS, on the strength of the aforesaid actions by the CCC,
the City Council hereby determines that Xxxxxx'x and the Joint Venture
are responsible and financially capable developers; and
WHEREAS, in light of the foregoing recitals, the City and the
Redeveloper are desirous of entering into this Third Amendment to
amend varous sections of the Agreement; and
WHEREAS, the City and the Redeveloper acknowledge that the
mutual promises contained in this Third Amendment are good and
valuable consideration for the binding execution of this Third
Amendment;
IT IS ON THE DATE STATED ABOVE AGREED BY AND BETWEEN THE CITY
AND THE REDEVELOPER AS FOLLOWS:
2. INCORPORATION OF RECITALS
2.0 Incorporation of Recitals. The recitals set forth in
Section 2 of this Third Amendment are hereby incorporated by
reference and are considered part of this Third Amendment.
3. DEFINITIONS
3.0 Governing Definitions. The defined words, phrases and
terms in the Agreement, the First Amendment and the Second
Amendment shall have their same respective meanings in this
Third Amendment unless the context clearly indicates
otherwise.
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4. PROJECT IDENTIFICATION
4.0 The Xxxxxx'x Project. The Agreement is hereby amended
to add the following provision:
"3.1.1 The Xxxxxx'x Project.
Notwithstanding the terms of Section 3.1 of the Agreement,
pursuant to Section 4.2.4 of the Redevelopment Plan, as
amended by the Amendment to the Redevelopment Plan and as may
be further amended from time-to-time, the Xxxxxx'x Project on
the Mirage Land shall be considered a separate development
tract within the Project Parcels for the development of the
Xxxxxx'x Project. Redeveloper has caused Xxxxxx'x to agree
to, at the Closing (as defined in Paragraph 4(a) of the
Exchange Agreement, as amended), deliver to the City Xxxxxx'x
agreement (the "Xxxxxx'x Agreement"), the form of which is
attached hereto and made a part hereof as Exhibit C. Upon
the City's receipt of the Xxxxxx'x Agreement which has been
executed by Xxxxxx'x, the City shall promptly execute and
deliver same to Xxxxxx'x and Redeveloper. Redeveloper shall
not have any liability to the City and the City shall not
have the right to declare Redeveloper in Default of the
Agreement in the event Xxxxxx'x fails to comply with any of
its obligations set forth in the Xxxxxx'x Agreement. The use
of the Mirage Land the Xxxxxx'x Remainder Land for the
Xxxxxx'x Project shall not in any manner restrict the future
use of the Mirage Land and the Xxxxxx'x Remainder Land so
long as such lands are developed in accordance with the Re-
development Plan and as may be further amended from time-to-
time. The City agrees to provide any reasonable assistance,
without cost or expense to the City other than payroll and
internal administrative costs, which may be required of it to
enable Xxxxxx'x to properly apply for and obtain such permits
or approvals in a timely fashion, including making appli-
cations in the name of the City when reasonably advantageous
or otherwise required to do so.
3.1.2 Restriction of Xxxxxx'x Land.
Upon delivery of a deed by Xxxxxx'x to Redeveloper or its
nominee conveying title to the Xxxxxx'x Land, Redeveloper
acknowledges and agrees that the Xxxxxx'x Land shall be bound
by the provisions of Sections 5.3.1.3(2) and (3) of the
Agreement, in a manner similar to the Project Parcels.
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3.1.3 Release of Mirage Land.
The Xxxxxx'x Project and the Mirage Land shall be released
from the Agreement and Section 3.0 of the Deed Modification
upon Substantial Completion (as defined in the Xxxxxx'x
Agreement) of the Xxxxxx'x Project and upon satisfaction of
other conditions set forth in the Deed Modification attached
hereto as Exhibit B.
3.1.4 No Effect Upon Mirage Land.
No default by Redeveloper in the performance of any provision
of the Agreement or any other agreement with the City and no
termination of any such agreement, for any reason whatsoever,
shall in any manner affect the City's rights or obligations
with respect to the Xxxxxx'x Project or the Mirage Land.
3.1.5 Termination of Exchange Agreement.
In the event, for any reason, the Exchange Agreement is ter-
minated prior to the conveyances of the Mirage Land to
Xxxxxx'x (or its nominee) and the Xxxxxx'x Land to the Rede-
veloper (or its nominee), then in such event, upon such
termination, this Section 4.0 of the Third Amendment shall be
void and severed from the Agreement."
5. THE DEED MODIFICATION
5.0 The Deed Modification. The Agreement is hereby amended
to add the following provisions:
"5.1.2.2. The Deed Modification.
The City agrees that concurrently upon the execution of this
Third Amendment, it will execute and deliver to the Redevel-
oper for recording the Deed Modification, the form of which
is attached hereto and made a part hereof as Exhibit B.
5.1.2.3. The Project Parcels.
Upon the release of the Mirage Land from the terms and
conditions of Section 3.0 of the Deed Modification pursuant
to the terms of the Deed Modification, if such release occurs
prior to the completion of construction of the Project, the
term "Project Parcels" shall henceforth mean the Project
Parcels (1) excluding the Mirage Land and (2) including the
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Xxxxxx'x Land, as more particularly described by the metes
and bounds legal description attached hereto and made a part
hereof as Exhibit D."
5.1 Consent to Conveyances. The Agreement is hereby amended
to add the following provision:
"5.3.1 Consent to Conveyances. The City hereby approves of
the Redeveloper's conveyances of (i) the Mirage Land to
Xxxxxx'x and (ii) the Joint Venture Property to the Joint
Venture."
6. MISCELLANEOUS
6.0 Notices. Section 10.8 of the Agreement is hereby
amended to amend the address and fax number of the Redevel-
oper and to designate a new person that is to receive copies
of all notices to the Redeveloper, as follows:
"As to the Redeveloper:
"Mirage Resorts, Incorporated
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
ATTN: Xxxxx X. Xxxxx, Vice President
Mailing Address:
X.X. Xxx 0000
Xxx Xxxxx, Xxxxxx 00000-0000
ATTN: Xxxxx X. Xxxxx, Vice President
With a copy to:
Xxx X. Xxxxxx, Esquire
Levine, Staller, Sklar, Chan, Xxxxxxx & Xxxxxxxx, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
Facsimile No.: (000) 000-0000
6.1 Ratification of All Other Terms and Conditions of the
Agreement and the First Amendment and the Second Amendment.
Except to the extent inconsistent with the terms and
conditions of this Third Amendment, all remaining terms and
conditions of the Agreement and the First Amendment and the
Second Amendment are hereby ratified and confirmed and are
agreed to be in full force and effect.
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IN WITNESS WHEREOF, the parties have executed this Third
Amendment effective as of the date appearing on the first
page hereof.
ATTEST CITY OF ATLANTIC CITY
By: XXXXXXXX XXXXX By: XXXXX XXXXXX
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Assistant City Clerk Mayor
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Title
Approved as to form:
XXXXXX X. XXXXX
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XXXXXX X. XXXXX,
City Solicitor
ATTEST: MAC, CORP.
By: XXXXX X. XXXXXX By: XXXXX X. XXXXX
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Xxxxx X. Xxxxx
Vice President and
Assistant Secretary
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Title
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