EXHIBIT 10.4(14)
A FOURTH 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 FOURTH AMENDMENT (this "Fourth Amendment") KNOWN AS "A FOURTH
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 18th DAY OF OCTOBER, 2000 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 herein.
WHEREAS, pursuant to Ordinance No. 14 of 1996 adopted by the City Council
of the 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, in accordance with Section 5.6 of the Agreement, the Redeveloper
is the successor by assignment to the rights of Mirage Resorts, Incorporated in
and to the Agreement; 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
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between the City and the Redeveloper with the specific intention to modify the
terms of 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 Amendment 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"), which Second Amendment was executed on December 15, 1998;
and
WHEREAS, pursuant to the First Amendment, the City conveyed the Project
Parcels (as defined in the Agreement) to Redeveloper by deed dated January 8,
1998 and recorded on January 9, 1998 in the Atlantic County Clerk's Office in
Deed Book 6237, Page 223 (the "Original City Deed"); and
WHEREAS, the Original City Deed contains various restrictions, including,
without limitation, a right of reversion and statutory covenants, provisions and
controls which affect the Project Parcels, all as more particularly set forth in
Sections 5 and 6 of the Original City Deed (collectively, the "City Deed
Restrictions"); and
WHEREAS, the Redeveloper and Xxxx Atlantic City, Inc., a New Jersey
corporation ("Xxxx") have entered into a certain amended and restated joint
venture
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agreement dated as of July 14, 1998, as amended by a certain first amendment to
amended and restated joint venture agreement dated September 10, 1998, as
further amended by Second Amended and Restated Joint Venture Agreement dated as
of August 31, 2000 (as so amended, the "Joint Venture Agreement"), pursuant to
which Redeveloper and Xxxx have formed a joint venture known as Marina District
Development Company ("MDDC"); and
WHEREAS, pursuant to the terms of the Joint Venture Agreement, Redeveloper
has agreed to convey to MDDC a portion of the Project Parcels as more
particularly described on Exhibit "A" hereto (the "Joint Venture Property"), for
the purpose of, among other things, developing and operating thereon a facility
consisting of a 2,010 room hotel-casino and related restaurant, entertainment,
retail and other amenities (the "MDDC Project");
WHEREAS, pursuant to Ordinance No. 70 of 1998 adopted by the City Council
on December 16, 1998, the City entered into a certain agreement 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" (the "Third Amendment"), which Third Amendment was executed
on January 13, 1999; and
WHEREAS, pursuant to the Third Amendment, the City approved, INTER ALIA,
Redeveloper's conveyance of the Joint Venture Property to MDDC; and
WHEREAS, pursuant to the Third Amendment, the City executed an Agreement
Modifying Deed Book 6237, Page 223 dated January 18, 1999 and recorded on
February 10,
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1999 in Deed Book 6433, Page 285 (the "Prior Deed Modification"), pursuant
to which the Original City Deed was modified to provide for the release of the
Mirage Land from the City Deed Restrictions and to incorporate the Xxxxxx'x Land
into the "Property" as defined therein (as such terms are defined in the Prior
Deed Modification) (the Original City Deed, as previously modified by the Prior
Deed Modification, is hereinafter referred to as the "City Deed"); and
WHEREAS, the Property less the Joint Venture Property is hereinafter
collectively referred to as the "MAC Property"; and
WHEREAS, the City and Redeveloper entered into the "Agreement Restricting
the Xxxxxx'x Land" (as such term is defined in the Prior Deed Modification)
dated January 18, 1999 and recorded on February 10, 1999 in Deed Book 6433, Page
323, pursuant to which the Xxxxxx'x Land was subjected to the City Deed
Restrictions; and
WHEREAS, at a hearing held on March 15, 2000, the City Planning Board
granted preliminary and final site plan approval for the MDDC Project; and
WHEREAS, on July 19, 2000, the Planning Board of the City of Atlantic City
approved an application by MDDC for an amendment to preliminary and final site
plan approval to increase the size and scope of the MDDC Project to 2,010 hotel
rooms; and
WHEREAS, MDDC has made application for other approvals in order to develop
the Joint Venture Property; and
WHEREAS, with respect to the MAC Property and the Joint Venture Property,
the public policy goals set forth in Section 3.4 of that certain Redevelopment
Plan for the Huron North Redevelopment Area adopted by the City Council, as
amended by
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Ordinance No. 60 of 1998 adopted by the City Council (the "Redevelopment Plan")
would be satisfied upon completion of construction of the MDDC Project; and
WHEREAS, the Redeveloper and MDDC have requested that on the effective date
of the City Ordinance approving and adopting this Fourth Amendment, the City
shall execute and deliver to the Redeveloper: (a) an agreement in the form
attached as Exhibit "B" hereto (the "Second Deed Modification"), and (b) an
agreement by and among MDDC, the Redeveloper and the City in the form attached
as Exhibit "C" hereto (the "H-Tract Tri-Party Agreement"); and
WHEREAS, in light of the foregoing recitals, the City and the Redeveloper
are desirous of entering into this Fourth Amendment to amend various sections of
the Redevelopment Agreement; and
WHEREAS, the City and the Redeveloper acknowledge that the mutual promises
contained in this Fourth Amendment are good and valuable consideration for the
binding execution of this Fourth 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
Fourth Amendment are hereby incorporated by reference and are considered a part
of this Fourth Amendment.
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3. DEFINITIONS
3.0 GOVERNING DEFINITIONS. The defined words, phrases and terms in the
Agreement, the First Amendment, the Second Amendment, and the Third Amendment
shall have their same respective meanings in this Fourth Amendment unless the
context clearly indicates otherwise.
4. PROJECT IDENTIFICATION
4.0 THE MDDC PROJECT. The Redevelopment Agreement is hereby amended to add the
following provision:
"3.1.6 THE MDDC PROJECT.
Notwithstanding the terms of Section 3.1 of the Agreement, pursuant to
Section 4.2.4 of the Redevelopment Plan, as it may be amended from time to
time, the MDDC Project on the Joint Venture Property shall be considered a
separate development tract within the Project Parcels for the development
of the MDDC Project. The MDDC Project is hereby agreed to meet the terms
and conditions of the Agreement and is found to be consistent with and
meets the definition of and shall constitute the "Project" as set forth in
Section 3.1 of the Agreement. Redeveloper has caused MDDC to agree to join
in and deliver to the City MDDC's and Redeveloper's agreement, the form of
which is attached hereto and made a part hereof as Exhibit "C" (the
"H-Tract Tri-Party Agreement"). Upon the City's receipt of the H-Tract
Tri-Party Agreement which has been executed by MDDC and Redeveloper, the
City shall promptly execute and deliver same to MDDC and Redeveloper. The
City agrees to provide any pertinent information in
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its possession and 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 MDDC to properly apply for and obtain
such permits or approvals in a timely fashion, including making
applications in the name of the City when reasonably advantageous or
otherwise required to do so.
MDDC and the Joint Venture Property are hereby released from the
requirements, restrictions and conditions of the Agreement. No default by
Redeveloper in the performance of any provision of the Redevelopment
Agreement or the subsequent reversion of title of any of the MAC Property
to the City will disturb or interfere with MDDC's use and enjoyment of the
Joint Venture Property, the MDDC Project, or any improvements, including,
without limitation, utilities, roadways, landscaping, lighting, and
stormwater drainage, located on the MAC Property and used by MDDC in
connection with the construction, use, operation, ownership, and management
of the MDDC Project.
3.1.7 RELEASE OF JOINT VENTURE PROPERTY AND MAC PROPERTY FROM CITY DEED
RESTRICTIONS AND THE AGREEMENT RESTRICTING THE XXXXXX'X LAND.
Upon Substantial Completion of the MDDC Project (as defined in the H-Tract
Tri-Party Agreement) and upon satisfaction of the other conditions set
forth in the Second Deed Modification attached hereto as Exhibit "B", the
City will execute and deliver that certain release of City Deed
Restrictions in the form attached hereto as Exhibit "D" (the "Release of
City Deed Restrictions"), whereby the City will release the Joint Venture
Property and the MAC Property from the City Deed
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Restrictions contained in the City Deed, as amended by the Second City Deed
Modification, and the Agreement Restricting the Xxxxxx'x Land.
3.1.8 NO EFFECT UPON JOINT VENTURE PROPERTY.
No default by Redeveloper in the performance of any provision of the
Redeveloper 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 MDDC
Project or the Joint Venture Property.
3.1.9 TERMINATION OF JOINT VENTURE AGREEMENT.
In the event, for any reason, the Joint Venture Agreement is terminated
prior to the conveyance of the Joint Venture Property to MDDC (or its
nominee), then in such event, upon such termination, the Second City Deed
Modification shall be null and void and the City, the Redeveloper, and MDDC
agree, that upon the request of the Redeveloper, to execute and deliver to
the Redeveloper an instrument memorializing same, and further that this
Section 4.0 shall be void and severed from the Agreement.
5. THE SECOND DEED MODIFICATION
5.0 THE SECOND DEED MODIFICATION. The Agreement is hereby amended to add the
following provision:
"5.1.2.4 THE SECOND DEED MODIFICATION
The City agrees that concurrently upon the execution of this Fourth
Amendment, it will execute and deliver to the Redeveloper for recording the
Second Deed
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Modification, the form of which is attached hereto and made a part hereof
as Exhibit "B".
6. MISCELLANEOUS
6.0 RATIFICATION OF ALL OTHER TERMS AND CONDITIONS OF THE REDEVELOPMENT
AGREEMENT AND THE FIRST AMENDMENT, THE SECOND AMENDMENT, AND THE THIRD
AMENDMENT.
Except to the extent inconsistent with the terms and conditions of this
Fourth Amendment, all remaining terms and conditions of the Redevelopment
Agreement, the First Amendment, the Second Amendment, and the Third Amendment
are hereby ratified and confirmed and are agreed to be in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Fourth Amendment
effective as of the date appearing on the first page hereof.
ATTEST CITY OF ATLANTIC CITY
XXXXXXXX XXXXXXXXXX By: XXXXX XXXXXX
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Xxxxxxxx Xxxxxxxxxx, City Clerk Name: Xxxxx Xxxxxx
Title: Mayor
Approved as to form:
XXXX X. XXXXXXXX
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Xxxx X. Xxxxxxxx, City Solicitor
MAC, CORP.
ATTEST:
XXXXX X. XXXXX By: XXXXXX X. XXXXXXX
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Xxxxx X. Xxxxx, Assistant Secretary Xxxxxx X. Xxxxxxx, President
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EXHIBIT "A" TO FOURTH AMENDMENT
TO REDEVELOPMENT AGREEMENT
LEGAL DESCRIPTION OF JOINT VENTURE PROPERTY
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EXHIBIT "B" TO FOURTH AMENDMENT
TO REDEVELOPMENT AGREEMENT
SECOND DEED MODIFICATION
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EXHIBIT "C" TO FOURTH AMENDMENT
TO REDEVELOPMENT AGREEMENT
H-TRACT TRI-PARTY AGREEMENT
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EXHIBIT "D" TO FOURTH AMENDMENT
TO REDEVELOPMENT AGREEMENT
PROPOSED RELEASE OF CITY DEED RESTRICTIONS
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AND AGREEMENT RESTRICTING XXXXXX'X LAND
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