EXECUTION COPY
SECOND AMENDMENT
made as of the 10th day of October, 1997
to
ROAD DEVELOPMENT AGREEMENT
made as of the 10th day of January, 1997
by and among
STATE OF NEW JERSEY
AND
SOUTH JERSEY TRANSPORTATION AUTHORITY
AND
ATLANDIA DESIGN AND FURNISHINGS, INC.
EXHIBIT 10.10
SECOND AMENDMENT TO ROAD DEVELOPMENT AGREEMENT ("Second
Amendment") made as of this 10th day of October, 1997, by
and among the STATE OF NEW JERSEY, acting through the
Department of Transportation, 0000 Xxxxxxx Xxxxxx, XX 000,
Xxxxxxx, Xxx Xxxxxx 00000-0000 (the "State"), the SOUTH
JERSEY TRANSPORTATION AUTHORITY, a public body having an
office at Xxxxxx Xxxxxxx Xxxxx, X.X. Xxx 000, Xxxxxxxxx,
Xxx Xxxxxx 00000 ("SJTA") and ATLANDIA DESIGN AND
FURNISHINGS, INC., a New Jersey corporation, having an
office and place of business at 0000 Xxxxx Xxxxxxxxxx
Xxxx, Xxx Xxxxx, Xxxxxx 00000 ("Developer").
W I T N E S S E T H:
WHEREAS, as of January 10, 1997 the State, SJTA and
Mirage Resorts, Incorporated ("MRI"), as "Developer",
executed and delivered a Road Development Agreement which
Agreement (the "Original Agreement") was, by a first
amendment thereto made as of July 31, 1997, thereafter
amended (said Original Agreement, as so amended, the
"Agreement"); and
WHEREAS, concurrently with the execution and delivery
of the Original Agreement, pursuant to Section 13.1
thereof, MRI assigned all of its right, title and interest
in and to the Original Agreement to Developer, which
assumed the obligations of the assignor thereunder; and
WHEREAS, the State, SJTA and Developer have
determined that it is necessary and, pursuant to the
provisions of N.J.S.A. 27:1A-5, 27:7-21 and 27:25A-23 that
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it is in the public interest, to amend further the
Original Agreement as hereinafter provided.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. Definitions.
1.1 All terms, the initial letters of which are
capitalized and not otherwise defined in this Second
Amendment, shall have the respective meanings ascribed to
them in the Agreement.
1.2 There are added to Article 1 of the Agreement
the following definitions:
Bond Purchase Agreement shall mean the agreement of
MRI to purchase from SJTA and the agreement of SJTA to
sell to MRI up to $55 million principal amount of special
revenue bonds to be issued by SJTA and secured by and
repayable from CRDA future investment alternative tax
obligations of Casinos on the Marina Land, such agreement
to be substantially in the form of Exhibit D.
Contingency shall have the meaning set forth in the
D/B Road Contract.
Contingency Change Order shall have the meaning set
forth in the D/B Road Contract.
Contract Documents shall have the meaning set forth
in the D/B Road Contract.
Contract Price shall mean $190,595,000.
Developer's Account shall have the meaning set forth
in the Escrow Fund Agreement.
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Directed Change shall have the meaning set forth in
the D/B Road Contract.
Escrow Agent shall have the meaning set forth in the
Escrow Fund Agreement.
Escrow Fund shall have the meaning set forth in the
Escrow Fund Agreement.
Escrow Fund Agreement shall mean the agreement to be
entered into at or prior to Closing among Developer, SJTA,
State and Escrow Agent providing for the deposit,
investment and disposition of the Escrow Fund, such
agreement to be in the form of Exhibit E.
Guaranteed Completion Date shall have the meaning set
forth in the D/B Contract.
Major Permit shall have the meaning set forth in the
D/B Road Contract.
NTP 1 shall have the meaning set forth in the D/B
Road Contract.
NTP 2 shall have the meaning set forth in the D/B
Road Contract.
Retainage shall have the meaning set forth in the D/B
Road Contract.
Road Account shall have the meaning set forth in
Exhibit F to this Second Amendment.
SJTA Account shall have the meaning set forth in the
Escrow Fund Agreement.
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SJTA Special Revenue Bonds shall mean the bonds
issued by SJTA pursuant to the SJTA Special Revenue Bond
Resolution.
SJTA Special Revenue Bond Resolution shall mean the
resolution of SJTA dated October 10, 1997 authorizing SJTA
to issue special revenue bonds relating to the Road Project.
State - SJTA Memorandum shall mean the memorandum dated
September 8, 1997 signed by Commissioner of Transportation
Xxxx X. Xxxxx, Xx. and SJTA Executive Director Xxxxx X.
Xxxxxxxx relating to funding by the State and SJTA of the
Road Project.
Work shall have the meaning set forth in the D/B Road
Contract.
2. Amended Schedules.
2.1 The State hereby substitutes for Schedules 2.2.1
(Schedule of Required State Consents), Schedule 2.3.1
(Schedule of State Breaches), Schedule 2.4.1 (Schedule of
State Contracts) and Schedule 2.5.1 (Schedule of State
Litigation) heretofore delivered to SJTA and Developer
Schedule 2.2.1 (Amended) (Schedule of Required State
Consents), Schedule 2.3.1 (Amended) (Schedule of State
Breaches), Schedule 2.4.1 (Amended) (Schedule of State
Contracts) and Schedule 2.5.1 (Amended) (Schedule of
State Litigation) annexed hereto. The Developer and SJTA
acknowledge receipt of copies of all documents heretofore
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filed in the actions referred to in Schedule 2.5.1
(Amended). The State shall deliver to Developer and SJTA
copies of all documents referred to in the other amended
Schedules on or before October 24, 1997.
2.2 SJTA hereby substitutes for Schedule 2.2.2
(Schedule of Required SJTA Consents), Schedule 2.3.2
(Schedule of SJTA Breaches), Schedule 2.4.2 (Schedule of
SJTA Contracts) and Schedule 2.5.2 (Schedule of SJTA
Litigation) heretofore delivered to the State and
Developer Schedule 2.2.2 (Amended) (Schedule of Required
SJTA Consents), Schedule 2.3.2 (Amended) (Schedule of
SJTA Breaches), Schedule 2.4.2 (Amended) (Schedule of SJTA
Contracts) and Schedule 2.5.2 (Amended) (Schedule of SJTA
Litigation) annexed hereto. The Developer and State
acknowledge receipt of copies of all documents heretofore
filed in the actions referred to in Schedule 2.5.2
(Amended). SJTA shall deliver to the State and Developer
copies of all documents referred to in the other amended
Schedules on or before October 24, 1997.
2.3 Developer hereby (a) amends Schedule 3.5
(Schedule Developer's Contracts, etc.) by adding the
contract set forth as Schedule 3.5 (Amended) (Schedule of
Developer's Contracts) and (b) amends and restates
Schedule 3.6 (Schedule of Developer Litigation) with
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Schedule 3.6 (Amended) (Schedule of Developer Litigation)
annexed hereto. The State and SJTA acknowledge receipt of
copies of all documents referred to in Schedule 3.5
(Amended) and filed in each action or proceeding referred
to in Schedule 3.6 (Amended).
3. Program Management Agreement.
3.1 Concurrently herewith the State, SJTA and
Developer have executed and delivered the First Amendment
to the Program Management Agreement pursuant to which,
among other matters, the State and SJTA became parties to
the Program Management Agreement and agreed that Road
Project Funding Sources shall be applied to pay for the
entire compensation of the Program Manager, which shall
not include any compensation for construction inspection
services, which construction inspection services shall,
prior to the issuance of NTP2, be procured by SJTA, in
consultation with Developer and State, in accordance with
Law, from a qualified Person other than Program Manager,
pursuant to an agreement to be executed by Developer,
SJTA, the State and such Person which agreement shall be
in form and content approved by SJTA, the State and
Developer, such approval not to be unreasonably withheld,
conditioned or delayed. The services of the Program
Manager and such Person performing construction inspection
services shall be paid for with Road Project Funding
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Sources; provided, however, the foregoing
shall not result in the Road Project Budget exceeding, in
the aggregate, $330,000,000.
3.2 Section 5.2.3 of the Agreement is hereby
modified in its entirety to read as follows:
"If the D/B Road Contract referred to in
Section 6.1.2 of this Second Amendment is not
executed and delivered by Developer and the D/B
Contractor on or before October 15, 1997, or
such later date as the State, SJTA and Developer
may approve, reimburse the State as required by
the Memorandum."
3.3 In order to promote efficient and consistent
communication with the Program Manager, the Developer,
State and SJTA agree as follows:
3.3.1 If the State or SJTA wishes Developer
to communicate any information or suggestions to Program
Manager with which Developer does not agree, State, SJTA
and Developer shall endeavor in good faith, during the
next five (5) business days following Developer's advice
to the State and SJTA of its disagreement, to resolve
those differences.
3.3.2 If the efforts of the parties to resolve
the differences are unavailing, Developer shall nevertheless
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immediately transmit such information or suggestions to
Program Manager accompanied by a statement from Developer
setting forth its reasons for not endorsing or approving such
information or suggestions, it being agreed that Program
Manager may, but is not required to act on such information
or suggestions.
3.3.3 State and SJTA acknowledge and agree
that the transmittal by Developer of information or
suggestions pursuant to Section 3.3.2 shall not constitute
an amendment or waiver of any of the provisions of either
the Program Management Agreement or of the D/B Road
Contract, both of which require Program Manager to follow
the directions of only Developer.
3.3.4 The foregoing provisions shall not
reduce, modify or amend the rights of the State and SJTA
under this Agreement.
4. Road Project Budget and Schedules.
4.1 In accordance with the provisions of Sections 4.2
and 5.3 of the Agreement, the State, SJTA and Developer
hereby agree that annexed hereto as Schedule 4.2A (Road
Project Budget) is the Road Project Budget.
4.2 In accordance with Sections 4.2 and 5.3 of the
Agreement, the State, SJTA and Developer hereby agree that
annexed hereto as Schedule 4.2B (Schedule for Road Project
and Casino Project) is the currently anticipated schedule
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for the construction of the Road Project and the Casino
Project. Although the State, SJTA and Developer shall
proceed reasonably and in good faith to endeavor to meet
those schedules, the foregoing does not constitute any
guarantee by Developer, State or SJTA that those schedules
will be met.
4.3 Sections 12.1.1 and 12.2.1 of the Agreement are
hereby deleted.
5. Funding of Road Project.
5.1 To implement the provisions of Section 4.4 of the
Agreement, at the Closing (a) SJTA shall deposit into the
Escrow Fund in immediately available funds the sum of $125
million inclusive of financing costs of $4.15 million
constituting all of the direct and indirect financing
costs of SJTA in connection with the Road Project which
are payable from Road Project Funding Sources and which
shall be applied in the manner set forth on Exhibit F to
this Second Amendment, (b) the State shall provide a
certificate of the Treasurer of New Jersey that the
1996/97 and 1997/98 appropriations of the Transportation
Trust Fund in the aggregate amount of $95 million (i) have
not been repealed or modified, in whole or in part, (ii) are
encumbered in accordance with Law and (iii) therefore cannot
be applied except for the Road Project, unless the $95 million
appropriation is subsequently repealed or modified by the
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Legislature of the State of New Jersey in whole or in
part, (c) SJTA and State shall execute and deliver to
Developer and Escrow Agent the Escrow Fund Agreement, (d)
SJTA shall (i) adopt and deliver the SJTA Special Revenue
Bond Resolution and (ii) execute and deliver (x) the Bond
Purchase Agreement and (y) the Pledge Agreement with CRDA
described in the Bond Purchase Agreement and (e) CRDA
shall have executed and delivered the Pledge Agreement and
the Donation Agreement referred to in the Bond Purchase
Agreement. Developer agrees that compliance by State and
SJTA with this Section 5.1 will constitute compliance with
the provisions of Section 6.1.4 of the Agreement.
5.2 Section 5.4 of the Agreement is hereby modified
by (a) deleting from Section 5.4.1 the words "the State,
SJTA and CRDA," and (b) deleting from the second line of
each of Section 5.4.1.1 and Section 5.4.1.2 the words "the
State and SJTA, but".
5.3 To implement the provisions of Section 5.4 of
the Agreement, Developer shall, at the Closing, (a)
deposit into the Escrow Fund in immediately available
funds the sum of $110 million inclusive of financing costs
of $6.269 million, constituting all of the direct and
indirect financing costs of Developer and its Affiliates
in connection with the Road Project which are payable from
Road Project Funding Sources, (b) execute and deliver to
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the State, SJTA and Escrow Agent the Escrow Fund Agreement
and (c) cause MRI to execute and deliver to SJTA the Bond
Purchase Agreement and cause MAC, Corp. to execute and deliver
to CRDA the Donation Agreement referred to in the Bond Purchase
Agreement. State and SJTA agree that compliance by Developer
with the provisions of this Section 5.3 will constitute
compliance with the provisions of Section 7.1.4 of the
Agreement.
5.3.1 Upon the giving of any notice under
Section 7 of Schedule A to the Escrow Fund Agreement that
funds are to be remitted to SJTA from the Developer's
Account to purchase SJTA Special Revenue Bonds, SJTA shall
forthwith issue to MRI, against payment by Escrow Agent of
the purchase price therefor, its SJTA Special Revenue
Bonds in certificated form and otherwise in complete
accordance with the Bond Purchase Agreement and the SJTA
Special Revenue Bond Resolution and in strict compliance
with the conditions thereunder in the principal amount of
the payment from the Developer's Account pursuant to such
Section 7 (but the SJTA Special Revenue Bonds shall not be
issued in any single denomination of less than $5 million)
and execute and deliver, or cause to be executed and
delivered, all other documents and instruments required to
be executed and delivered by SJTA and CRDA, and each of
them, and by their respective bond counsel at a "Delivery
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Date" pursuant to the Bond Purchase Agreement or the SJTA
Special Revenue Bond Resolution.
6. D/B Road Contract.
6.1 Pursuant to Section 4.5.2 of the Agreement, the
State and SJTA each hereby approves (a) the version of the
D/B Road Contract dated June 20, 1997, as the same was
amended by Addenda Nos. 1-9 and Clarification Notice Nos.
1-13 issued by Program Manager and (b) the issuance of the
other documents issued to qualified bidders on April 22,
1997 and each hereby:
6.1.1 Ratifies the issuance to Yonkers
Contracting Company, Inc./Granite Construction Company, a
Joint Venture, on September 2, 1997 of the Notice of
Intent to Award the D/B Road Contract and a letter from
Developer dated September 4, 1997 with respect thereto;
and
6.1.2 Authorizes the execution and delivery
by Developer of the D/B Road Contract, in the form of the
version thereof prepared under date of August 20, 1997,
which version was delivered to the D/B Contractor with the
Notice of Intent to Award and was executed by the D/B
Contractor and dated September 8, 1997.
6.2 In order to promote the efficient administration
of the D/B Road Contract, the State and SJTA agree as
follows:
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6.2.1 Neither the State nor SJTA will
directly communicate with the D/B Contractor with respect
to the Road Project. All communications intended by the
State and SJTA, or either, for the D/B Contractor shall be
in writing and sent to the Developer and the Program
Manager. If Developer and Program Manager are in
agreement with such communication, Developer will instruct
Program Manager to forward such communication to the D/B
Contractor. If Developer or Program Manager has a
reasonable basis for not transmitting such communication
to the D/B Contractor, Developer and Program Manager shall
upon receipt of such communication, consult in good faith
with the State or SJTA, as the case may be, concerning
such communication and advise the State and SJTA, if such
is the case, of the basis for not transmitting such
communication to the D/B Contractor. If the Developer or
Program Manager has a reasonable basis for not
transmitting such communication to the D/B Contractor,
Developer shall not be required to do so. However, if
Developer and Program Manager receive a Notice from either
(a) the State which is signed by its Commissioner of
Transportation or (b) SJTA which is signed by its Executive
Director, which Notice in any such case requires the Program
Manager to order corrective action or the temporary cessation
of Work or a portion of the Work either (i) for the failure
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of the D/B Contractor to comply with (x) a material provision
of the Contract Documents, or (y) a Major Permit or (ii) based
upon the written advice of the Person retained by Developer,
SJTA and State in accordance with Section 3.1 of this Second
Amendment to inspect the construction of the Road Project that
continued Work will either produce an unsafe road or result in
an unreasonable risk of injury or damage to persons or property,
Program Manager shall, promptly after receipt of such Notice,
transmit to the D/B Contractor such Notice and any related
communication from the State or SJTA which is intended for
the D/B Contractor, and order either a stoppage in Work or
the performance of corrective Work as directed by the State
or SJTA and send a Notice to the Developer, State and SJTA
of such order, and if Program Manager fails for five (5) days
after receipt of the Notice from the State or SJTA referred to
in clause (a) or (b) above to do so, the State or SJTA may
transmit such Notice and any related communication
directly to the D/B Contractor.
6.2.2 Prior to enforcing any of the rights
that either the State or SJTA may have under the D/B Road
Contract against the D/B Contractor, except for their
rights under Section 6.2.1 of this Second Amendment, the
State and SJTA will send a Notice to Developer (with a
copy to the Program Manager) stating that the State and
SJTA, or either, as the case may be, intend to enforce
such right, which Notice shall set forth the right sought
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to be enforced, the intended method of enforcement and the
reasons therefor. During the following five (5) business days
and prior to taking any further action to enforce such rights,
the State and SJTA, and each, as applicable, shall consult
in good faith with Developer and Program Manager as to the
action they plan to take. The State and SJTA will not
unreasonably fail to accommodate any reasonable request by
Developer and Program Manager to delay notifying the D/B
Contractor of its intention to enforce such right or its
actual commencement of such enforcement activities against
the D/B Contractor.
6.2.3 Where the D/B Road Contract or the
Agreement requires the consent or approval of the State
and SJTA, or either, or requires or permits other
performance by the State and SJTA, or either, and
Developer is willing to provide its consent, approval or
other performance with respect to the matter at issue,
such consent, approval or other performance shall not be
unreasonably withheld, conditioned or delayed by the State
and SJTA, and each of them, and shall be provided by the
State and SJTA within ten (10) days after receipt of a
notice from Developer, Program Manager or the D/B
Contractor requesting such consent, approval or other
performance, unless prior to such date the State or SJTA
sends a Notice to Developer setting forth in reasonable
detail the reasons for withholding such approval, consent
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or other performance. Upon receipt of such a Notice from
the State or SJTA, the Developer, State and SJTA shall
consult in good faith during the following five (5)
business days to attempt to agree upon a course of action
which will take into account public safety, the
requirements of Law and the necessity to complete the Road
Project by the Guaranteed Completion Date and for the
Contract Price. If either the State or SJTA fails, within
the ten (10) day period set forth above, to provide such
consent, approval or other performance or a timely Notice
setting forth in reasonable detail its reason(s) for not so
consenting, approving or otherwise performing, or if the State
or SJTA provides such timely Notice and the parties are unable
to reach agreement during such five (5) business day
consultation period and the Program Manager certifies to
Developer, State and SJTA in writing that such consent,
approval, or other performance will not (i) impair public
safety or (ii) result in any material deviation from the
requirements of the Contract Documents or (iii) result in
a violation of a Major Permit, the State and SJTA shall
thereupon be deemed to have provided such consent,
approval or other performance and the Program Manager
shall act in accordance therewith; provided, however, if
the Program Manager does not so certify to Developer,
State and SJTA, or if State or SJTA timely delivers a
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Notice setting forth in reasonable detail its reason(s)
for not so consenting, approving or otherwise performing,
establishing in such Notice that the requested consent,
approval or performance would impair public safety or
result in any material deviation from the requirements of
the Contract Documents, or result in a violation of a
Major Permit, the Developer shall withdraw its previously
granted consent, approval or willingness to provide other
performance.
6.2.4 With respect to funding the Contract
Price or any amount by which the Contract Price may be
increased pursuant to a Contingency Change Order or a
Directed Change pursuant to the D/B Road Contract, the
parties agree as follows:
6.2.4.1 The State and SJTA shall, pursuant
to Section 12.2.1 of the D/B Road Contract, review and
approve each draft invoice submitted by the D/B
Contractor. Upon the signing by the Program Manager of the
draft invoice pursuant to such Section, such invoice shall
be submitted to the State which shall then forward such
invoice to the Escrow Agent, together with (i) a Notice to
Developer and SJTA setting forth the allocation, among
Developer, the State and SJTA, of the amount set forth on
the invoice as the "Current Amount Due", which allocation
shall be in accordance with the Agreement and (ii) a
notice to Escrow Agent in accordance with Section 1(a) of
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Schedule A to the Escrow Fund Agreement directing Escrow
Agent to pay from the Developer's Account and, if
applicable, from the SJTA Account the respective amounts
set forth in the Notice sent under clause (i). Upon the
submission by the State of such invoice to Escrow Agent,
except as otherwise provided in Section 6.2.4.2, (a) the
State and SJTA collectively will be deemed incontestably
committed to the deposit in the Road Account of two-thirds
(2/3) of the amount so invoiced, such deposit to be made
in accordance with the Notice sent under clause (i) and
(b) upon the remitting by the Escrow Agent to the Road
Account of funds under Sections 1.1 and 1.2 of Schedule A
to the Escrow Fund Agreement and the making by the State
of the deposit into the Road Account of that portion of
the two-thirds (2/3) of the amount for which the State and
SJTA are collectively responsible pursuant to the
Agreement and which was, pursuant to the Notice sent under
clause (i), allocated to the State, (which deposit the
State shall make concurrently with its sending of the
Notice under clause (i)), the State shall (x) be deemed to
have irrevocably authorized the release to Developer for
payment to the D/B Contractor of all of such sums from the
Road Account, and (y) immediately take all necessary steps
to effectuate such release; provided, however, such funds
shall not be paid to Developer from the Road Account for
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payment to the D/B Contractor in excess of any sums due
the D/B Contractor under the D/B Road Contract.
6.2.4.2 If either the Developer, State or
SJTA desires a Directed Change, such party shall forthwith
deposit into the Road Account from sources other than the
Road Project Funding Sources the full amount of the cost
thereof, including all direct and indirect costs referred
to in Section 4.9 of the Agreement, whereupon (i) the
State shall forthwith (x) issue an irrevocable
authorization to release to Developer for payment to the
D/B Contractor all such funds so deposited in the Road
Account, less, if applicable, Retainage, and (y) take all
necessary steps to effectuate such release and (ii) the
Developer shall authorize the Directed Change; provided,
however, such funds shall not be paid to the Developer
from the Road Account for payment to the D/B Contractor
except when such sums are due the D/B Contractor under the
D/B Road Contract and, in such instance, only upon
compliance with the provisions of Section 12.2 of the D/B
Road Contract.
6.2.4.3 If either the State or SJTA
desires to or is required to approve a Contingency Change
Order which Developer is willing to approve, the State and
SJTA, collectively, shall be deemed incontestably
committed to the deposit in the Road Account of two-thirds
(2/3) of the amount due under the Contingency Change Order
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and Developer shall be incontestably committed to the
deposit in the Road Account of one-third (1/3) of such
amount and (a) the State shall deposit into the Road
Account the difference between two-thirds (2/3) of the
amount of the Contingency Change Order and the portion (if
any) to be remitted by Escrow Agent under Section 1.2 of
Schedule A to the Escrow Fund Agreement from the SJTA
Account, (b) concurrently with such deposit by the State,
the State shall send Escrow Agent a notice pursuant to
Section 1(b) of Schedule A to the Escrow Fund Agreement to
deposit into the Road Account (i) from the Developer's
Account, one-third (1/3) of the amount due under the
Contingency Change Order and (ii) from the SJTA Account,
the difference between two-thirds (2/3) of such amount (or
such greater amount, as the case may be) and the portion
deposited by the State and (c) concurrently with the remitting
of funds by the Escrow Agent to the Road Account in accordance
with the notice referred to in clause (b), (x) the State shall
forthwith issue an irrevocable authorization to release to
Developer for payment to the D/B Contractor all such funds so
deposited in the Road Account, less, if applicable,
Retainage, (y) the State shall immediately take all
necessary steps to effectuate such release, and (z) the
Developer shall thereupon approve such Contingency Change
Order; provided, however, such funds shall not be paid to
Developer from the Road Account for payment to the D/B
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Contractor except when such sums are due the D/B
Contractor under the D/B Road Contract and, in such
instance, only upon compliance with the provisions of
Section 12.2 of the D/B Road Contract.
6.2.4.4 In the event (a) of any increase
in the Contract Price or (b) that any amounts are required
to be paid pursuant to or arising out of the D/B Road
Contract in excess of the Contract Price and the Contingency
and the responsibility for the payment of such increase or
additional amounts is not expressly provided for in either
the Agreement or the D/B Road Contract or pursuant to a
judgment entered against Developer, State or SJTA, such
sums shall be paid into the Road Account in the ratio of 2:
(State and SJTA) :1 (Developer); whereupon the State shall
(i) be deemed to have irrevocably authorized the release
to Developer for payment to the D/B Contractor of such
sums from the Road Account and (ii) immediately take all
necessary steps to effectuate such release; provided
however, such funds shall not be paid to Developer from
the Road Account for payment to the D/B Contractor except
when such sums are due the D/B Contractor under the D/B
Road Contract and, in such instance, only upon compliance
with the provisions of Section 12.2 of the D/B Road
Contract.
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6.2.4.5 Nothing set forth in Section
6.2.4 (other than Section 6.2.4.4, if applicable) shall be
construed to require the State to spend over $95 million,
SJTA to spend over $125 million (inclusive of the
financing costs set forth in Section 5.1 of this Second
Amendment) or Developer to spend over $110 million
(inclusive of the financing costs set forth in Section 5.3
of this Second Amendment) pursuant to the Agreement;
provided, however, the parties hereby agree that the $95
million commitment of the State shall be expended in
accordance with the provisions set forth in the State -
SJTA Memorandum (and all notices to the Escrow Agent shall
be prepared in a manner to comply with this Section), such
expenditures by the State to be accompanied by the
concurrent expenditures by Developer of sums due from it
pursuant to the Agreement.
6.2.5 Set forth as Exhibit F (Road Account
Procedures) are the procedures required by Section 4.6 of
the Agreement with respect to the Road Account which
procedures the State, SJTA and Developer agree to observe.
6.2.6 Should any of the State, SJTA or
Developer desire (a) the Program Manager to either suspend,
delay or interrupt the Work or any portion thereof pursuant
to the first sentence of Section 14.1 of the D/B Road
Contract or (b) Developer to terminate the D/B Road Contract
pursuant to Section 15.1 of the D/B Road Contract, no such
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notice shall be sent unless the State, SJTA and the
Developer jointly agree to send such notice and the manner
of allocating responsibility for all costs incurred as a
result thereof, each party agreeing not to unreasonably
withhold, delay or condition its approval of the sending
of a notice under the first sentence of Section 14.1 but
reserving to itself the absolute right in its sole
discretion not to agree to send any such notice under
Section 15.1; provided, however, each of the Developer,
the State and SJTA hereby approves the sending of a notice
by Developer under Section 15.1 of the D/B Road Contract
if the party requesting the sending of such notice then
has the right to send, and concurrently therewith sends, a
Notice of Termination under Article 12 (Termination) of
the Agreement.
6.2.7 In the event that at any time an
action or proceeding is commenced against Developer or any
Affiliate of Developer, or both, for any claim or cause of
action arising out of or in connection with the Road
Project and SJTA and the State, whether or not named as
defendants in such action, have not appeared in the action
or proceeding and submitted to the jurisdiction of the
court or tribunal:
6.2.7.1 Developer, and each Affiliate, as
the case may be, may implead whichever of the State or
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SJTA, or both, has not so appeared and submitted, or
commence a third party action against the State or SJTA,
or both, as the case may be, as permitted by Law; and
6.2.7.2 If the State and SJTA have
appeared in any action or proceeding and submitted to the
jurisdiction of the court or tribunal or if, in accordance
with Section 6.2.7.1 of this Second Amendment, such
impleading occurs or such third party action is commenced,
the State or SJTA, or both, as the case may be, shall
appear in the action or proceeding, and shall, together
with the Developer, and each such Affiliate, as the case
may be, request the court or tribunal to allocate among
Developer, each such Affiliate, the State and SJTA their
respective legal responsibility for the damages and other
monetary liability, if any, which may become payable by
Developer, each such Affiliate, the State or SJTA, as the
case may be, to plaintiff(s) by entering separate
judgments against Developer, each such Affiliate, the
State and SJTA. The failure of the court or tribunal to
grant such request shall not, except as otherwise required
by Law, bar the commencement of a separate action or the
taking of any action in the pending proceeding by State,
SJTA or Developer to establish the separate
responsibilities of the parties.
7. State Allocation Notice Obligation
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7.1 Every notice to the Escrow Agent containing
a direction to transfer funds from the Developer's Account
shall be in accordance with Section 7 of Schedule A to the
Escrow Fund Agreement and the allocation set forth in such
notice shall be based solely on the written instructions
of Developer.
8. Amendment to Other Provisions
8.1 There is added to Section 4.4 of the Original
Agreement the following language: "After the Closing, the
State shall neither directly nor indirectly seek or
support any act or action of any Person which would or
might result in the reallocation of funds appropriated for
the Road Project to any other use."
8.2 Section 4.10 of the Original Agreement is hereby
amended by deleting the period at the end of the last
sentence of said Section and by adding thereto the
following: "; provided, however, (a) the State shall not
pay for any such land and rights of way from the line item
in the Road Project Budget entitled "Land and Right of Way
Acquisition Contingency" until the entire amount of the
line item in the Road Project Budget entitled "Land and
Right of Way Acquisition" is fully exhausted, (b) any
funds remaining in the line item entitled "Land and Right
of Way Acquisition Contingency" which are not so utilized
shall be available, if required, for payment of any other
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costs incurred with respect to the Road Project (other
than costs incurred in connection with a Directed Change)
which are approved by the State, Developer and SJTA, and
(c) if, after the Road Project is completed, there still
remain any unexpended funds in the line item entitled
"Land and Right of Way Acquisition Contingency", said
funds shall be applied in accordance with Section 4.7.2 of
the Agreement.
8.3 Section 4.17 of the Original Agreement is hereby
amended by deleting in line 8 on page 40 of the Original
Agreement the words "neither take nor" and replacing them
with the words "not, and shall not".
8.4 There is added to Article 4 (Covenants of The
State and SJTA) of the Original Agreement a new Section
4.20 to read as follows:
"Section 4.20 Performance of
Escrow Fund Agreement. The State and SJTA
shall perform all of their respective
obligations under the Escrow Fund Agreement in a
timely manner."
8.5 Section 5.12 of the Original Agreement is hereby
amended by (a) deleting in line 8 on page 50 of the
Original Agreement the words "neither take nor shall" and
replacing them with the words "not, and shall not" and (b)
deleting the word "nor" in said line 8 and replacing it with
the word "or".
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8.6 There is added to Article 5 (Covenants of
Developer) of the Original Agreement a new Section 5.17 to
read as follows:
"Section 5.17 Performance of
Escrow Fund Agreement. The
Developer shall perform all of its
obligations under the Escrow Fund
Agreement in a timely manner."
9. Miscellaneous.
9.1 No consent, approval or other action taken or
omitted to be taken by Developer, State or SJTA pursuant
to the Agreement or the D/B Road Contract in reliance upon
any direction, advice or other action of the Program
Manager shall create or be deemed to create any liability
on the part of Developer, State or SJTA.
9.2 No party shall commence any action or proceeding
for injunctive or similar relief to prevent or delay the
performance by the Escrow Agent of its obligations under
the Escrow Fund Agreement.
9.3 In the event of the Bankruptcy of SJTA or
Developer and the entry of an order rejecting the
Agreement, and provided that (a) the Casino Project
Schedule set forth on Schedule 4.2B to the Second
Amendment is, in all material respects, being maintained
as of the time of the entry of such order, and (b) the
28
Bankruptcy of SJTA or Developer and the entry of such
order will not have the effect of preventing Affiliates of
Developer from proceeding with the Casino Project, the
State and such of SJTA or the Developer which is not the
debtor in the Bankruptcy case shall (i) continue to perform
all of their respective obligations under the Agreement, the
Escrow Fund Agreement and the Program Management Agreement
and (ii) proceed immediately to modify the Agreement, the
Escrow Fund Agreement, the Program Management Agreement and
all other documents which such debtor theretofore executed
and delivered in connection with the Road Project in such
manner as the State and such of SJTA or Developer which is
not such debtor, each proceeding in good faith, may reasonably
request so that the Bankruptcy of either SJTA or Developer
and the entry of the order of rejection will not delay or
prevent the timely completion of the Road Project.
Notwithstanding the above, the State may elect to
terminate the Agreement, the Escrow Fund Agreement and the
Program Management Agreement upon the entry of an order
rejecting the Agreement in the event the amounts on
deposit in the Escrow Fund are not available for the
payment of costs relating to the Road Project in
accordance with this Agreement, the Program Management
Agreement and the Escrow Fund Agreement. Each of
Developer and SJTA hereby irrevocably consents, to the
maximum extent permitted by Law, that in the event of such
29
Bankruptcy and the entry of such order of rejection, the
Escrow Agent under the Escrow Fund Agreement is
irrevocably authorized and directed to disburse such funds
pursuant to the Escrow Fund Agreement in the manner
directed by the State and such of SJTA or Developer which
is not the debtor in such Bankruptcy case and, upon the
execution and delivery of the modification of such Escrow
Fund Agreement, in accordance with such modification.
9.4 In the event of any inconsistency between either
(a) the provisions of the Agreement and this Second Amendment
or (b) the provisions of the D/B Road Contract and the other
Contract Documents and this Second Amendment, the
provisions of this Second Amendment shall control as among
the Developer, State and SJTA.
9.5 This Second Amendment may not be modified,
except by an instrument in writing signed by the State,
SJTA and the Developer, and shall be binding on the
parties, their successors and assigns, but shall not enure
to the benefit of any other Person.
9.6 This Second Amendment may be executed in any
number of counterparts, by manual or by facsimile
signature, all of which counterparts together shall
constitute a single instrument.
9.7 Except as amended by this Second Amendment, all
of the terms and conditions of the Agreement are ratified,
confirmed and approved.
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[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused
this Second Amendment to be executed as of the date first
set forth above by their duly authorized representatives.
STATE OF NEW JERSEY
BY: DEPARTMENT OF TRANSPORTATION
By: XXXX X. XXXXX, XX.
Xxxx X. Xxxxx, Xx.
Commissioner
SOUTH JERSEY TRANSPORTATION
AUTHORITY
By: XXXXX X. XXXXXXXX
Xxxxx X. Xxxxxxxx
Executive Director
ATLANDIA DESIGN AND
FURNISHINGS, INC.
By: XXXXX X. XXXXX
Xxxxx X. Xxxxx
Secretary
THIS DOCUMENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM ON
THIS 10TH DAY OF OCTOBER, 1997
XXXXX XXXXXXXX
ATTORNEY GENERAL OF NEW JERSEY
By: XXXXX X. XXXX
Deputy Attorney General
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