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
1. INITIAL RECITALS.
THIS SECOND AMENDMENT (this "Second Amendment") 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" IS MADE THIS 15 DAY OF December,
1998 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, 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
Redeveloper with the specific intention to modify the terms of the
Agreement; and
EXHIBIT 10.77
WHEREAS, there exists various public purpose projects within
the City that are in need of immediate funding; and
WHEREAS, pursuant to Section 4.3.1.1 of the Agreement, the
Redeveloper and the City have agreed that the Redeveloper may be
obligated to make certain payments of monies (the "Funds") to the City
under certain circumstances set forth therein; and
WHEREAS, pursuant to Section 4.3.1.2 of the Agreement, the
parties have agreed that the City shall apply the Funds for the
benefit of the residents of the City for approved projects (the
"Approved Projects") as more specifically set forth therein; and
WHEREAS, pursuant to Section 4.3.1.2 of the Agreement, the
City and the Redeveloper have agreed that the City and the Redeveloper
shall form a committee (the "Committee") consisting of one member
appointed by the Mayor, one member appointed by the President of the
City Council, and one member appointed by the Redeveloper and that the
responsibility of the Committee will be to make a final determination
as to how and on what projects the Funds will be expended; and
WHEREAS, the Redeveloper and the City have agreed that
Section 4.3.1.l of the Agreement provides that the Redeveloper is not
obligated to pay the Funds, if any, to the City unless and until the
Redeveloper receives credit from the State of New Jersey against its
sales tax obligation for funds expended to conduct reimbursable
environmental remediation activities at the Site (as defined in the
Agreement); and
WHEREAS, the Redeveloper and the City acknowledge that the
Redeveloper may not receive credit from the State of New Jersey
against its sale tax obligation for a substantial period of time; and
WHEREAS, it would be in the best interest of the City to
permit the Redeveloper to pay the City at this time a portion of the
Funds the Redeveloper may owe to the City in order that the City may
apply such funds for the Approved Projects; and
WHEREAS, the public interest of the City will be served by
funding the Approved Projects at this time; and
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WHEREAS, in Xxxxxx vs. City of Atlantic City, 309 N.J. Super.
596 (App. Div. 1998), the Appellate Division modified (the "Modified
Judgment") the Judgment (as defined in the First Amendment) to provide
that Section 5.5 of the Agreement is void and severed from the
Agreement; and
WHEREAS, in light of the foregoing recitals, the City and the
Redeveloper are desirous of entering into this Second Amendment to
amend various sections of the Agreement; and
WHEREAS, the City and the Redeveloper acknowledge that the
mutual promises contained in this Second Amendment are good and
valuable consideration for the binding execution of this Second
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 1 of this Second Amendment are hereby incorporated
by reference and are considered part of this Second
Amendment.
3. DEFINITIIONS
3.0 Governing Definitions. The defined words, phrases and
terms in the Agreement and the First Amendment shall have
their same respective meaning in this Second Amendment unless
the context clearly indicates otherwise.
4. ENVIRONMENTAL ISSUES
4.0 Sharing Formula. The Agreement is hereby amended to add
the following provision:
"4.3.1.1 Sharing Formula.
(4) Notwithstanding anything to the contrary in Section
4.3.1.1(1) of the Agreement, the City and the Rede-
veloper agree that the Redeveloper shall be permitted
to make advance payments of the Funds, if any, that may
ultimately be owed by the Redeveloper to the City and
that the City shall (i) credit the amount of such Funds
against any monetary obligation of the Redeveloper
under Section 4.3.1.1 of the Agreement and (ii) expend
the Funds solely for the purposes established in
Section 4.3.1.2."
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5. DEVELOPMENT OF THE PROJECT
5.0 Subsequent Conveyance by Redeveloper. Pursuant to the
Modified Judgment, Section 5.5 of the Agreement is void and severed
from the Agreement.
6. MISCELLANEOUS
6.0 Ratification of All Other Terms and Conditions of the
Agreement and the First Amendment. Except to the extent inconsistent
with the terms and conditions of this Second Amendment, all remaining
terms and conditions of the Agreement and the First Amendment are
hereby ratified and confirmed and are agreed to be in full force and
effect.
IN WITNESS WHEREOF, the parties have executed this Second Amendment
effective as of the date appearing on the first page hereof.
ATTEST CITY OF ATLANTIC CITY
[Illegible] XXXXX XXXXXX
By: By:
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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.
XXXXX X. XXXXXX XXXXX X. XXXXX
By: By:
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VP/Asst. Secretary
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Title
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