EXECUTION COPY
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
MIRAGE RESORTS, INCORPORATED
Exhibit 99
TABLE OF CONTENTS
Page No.
ARTICLE 1 - DEFINITIONS 4
Section 1.1 Definitions 4
ARTICLE 2 - REPRESENTATIONS AND WARRANTIES OF THE STATE AND SJTA 13
Section 2.1 Representations and Warranties 13
Section 2.2 Authorization of Agreement 13
Section 2.3 Agreement Not in Violation of Law
or Contracts 15
Section 2.4 Contracts; etc. 17
Section 2.5 Absence of Legal Proceedings 20
Section 2.6 Dedication of Existing Land 21
Section 2.7 Preliminary Budget 21
Section 2.8 Preliminary Time Schedule 22
Section 2.9 Omissions 22
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES OF DEVELOPER 24
Section 3.1 Representations and Warranties 24
Section 3.2 Organization of Developer 24
Section 3.3 Authority of Developer 24
Section 3.4 Agreement Not in Violation of Law 25
Section 3.5 Contracts; etc 25
Section 3.6 Absence of Legal Proceedings 27
Section 3.7 Preliminary Budget 28
Section 3.8 Preliminary Time Schedules 28
Section 3.9 Omissions 28
ARTICLE 4 - COVENANTS OF THE STATE AND SJTA 29
Section 4.1 Covenants and Agreements by the
State and SJTA 29
Section 4.2 Determination of Road Project Budget
and Schedule 30
Section 4.3 Payment for Preliminary Design Work 31
Section 4.4 Funding of Road Project 31
Section 4.5 D/B Road Contract 32
Section 4.6 Payment Under D/B Road Contract 34
Section 4.7 Savings 35
Section 4.8 Construction Overruns 36
Section 4.9 Change Orders 36
Section 4.10 Acquisition of Land and Rights of Way 37
Section 4.11 Road Project Permits 38
Section 4.12 Casino Project Permits 38
Section 4.13 Enforcement of Law 38
Section 4.14 No Commitments 38
Section 4.15 Full Information 39
Section 4.16 Notice of Claims 39
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Page No.
Section 4.17 Omit Action 40
Section 4.18 Assist Developer; Access 41
Section 4.19 Satisfaction of Conditions 41
ARTICLE 5 - COVENANTS OF DEVELOPER 43
Section 5.1 Covenants and Agreements by Developer 43
Section 5.2 Preliminary Design Work 43
Section 5.3 Determination of the Road Project Budget 44
Section 5.4 Funding of Road Project 45
Section 5.5 D/B Road Contract 46
Section 5.6 Acquisition of Land 47
Section 5.7 Road Project Permits 48
Section 5.8 Casino Project Permits 48
Section 5.9 Construction of Road Project 48
Section 5.10 Full Information 49
Section 5.11 Notice of Claims 49
Section 5.12 Omit Action 50
Section 5.13 Satisfaction of Conditions 51
Section 5.14 Community Involvement 51
Section 5.15 Documents to Be Provided to State and SJTA 52
Section 5.16 Inspection By State and SJTA 53
ARTICLE 6 - CONDITIONS OF DEVELOPER TO CLOSING 55
Section 6.1 Conditions to the Obligation of
Developer at the Closing 55
ARTICLE 7 - CONDITIONS OF STATE AND SJTA TO CLOSING 59
Section 7.1 Conditions to the Obligations of
the State and SJTA at the Closing 59
ARTICLE 8 - DOCUMENTS TO BE DELIVERED BY STATE AND SJTA AT CLOSING 63
Section 8.1 Documents Delivered by the State and
SJTA at the Closing 63
ARTICLE 9 - DOCUMENTS TO BE DELIVERED BY DEVELOPER AT CLOSING 65
Section 9.1 Documents to be Delivered by Developer
at the Closing 65
ARTICLE 10 - CLOSING 67
Section 10.1 Time and Place of Closing 67
Section 10.2 Further Assurances 67
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Page No.
ARTICLE 11 - SURVIVAL 68
Section 11.1 Survival 68
ARTICLE 12 - TERMINATION 69
Section 12.1 Right to Terminate by Developer 69
Section 12.2 Right to Terminate by the State and SJTA 71
Section 12.3 Notice of Termination; Effect of Termination 74
Section 12.4 Completion of Access Road to Casino 77
Section 12.5 Exchange of Documents 77
ARTICLE 13 - MISCELLANEOUS 78
Section 13.1 Assignability 78
Section 13.2 Fees and Expenses 78
Section 13.3 Governing Law, Venue and Service 78
Section 13.4 Notices 79
Section 13.5 Ownership of Road Project and Real
Property 82
Section 13.6 Headings and Word Meanings 82
Section 13.7 Entire Agreement 83
Section 13.8 Counterparts 84
Section 13.9 Modification 84
Section 13.10 Equitable Relief 84
Section 13.11 Severability 85
Section 13.12 Construction 86
Section 13.13 No Recording 86
Section 13.14 Waiver 86
Section 13.15 No Third Party Beneficiaries 87
Section 13.16 Cooperation 87
Section 13.17 Binding Effect 89
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Schedules
Schedule Section
2.2.1 Schedule of Required State Consents 2.2.1
2.2.2 Schedule of Required SJTA Consents 2.2.2
2.3.1 Schedule of State Breaches 2.3.1
2.3.2 Schedule of SJTA Breaches 2.3.2
2.4.1 Schedule of State Contracts 2.4.1
2.4.2 Schedule of SJTA Contracts 2.4.2
2.5.1 Schedule of State Litigation 2.5.1
2.5.2 Schedule of SJTA Litigation 2.5.2
3.5 Schedule of Developer's Contracts 3.5
3.6 Schedule of Developer Litigation 3.6
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EXHIBITS
Exhibit Section
Exhibit A - Preliminary Budget 1.1
Exhibit B - Form of Separate Opinions 6.1.8
of Attorney General and of
General Counsel to SJTA
Exhibit C - Form of Opinion of Xxxxxxx 7.1.7
Xxxxxxxx Xxxxx Xxxxxxxxxxx &
Kuh, LLP
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ROAD DEVELOPMENT AGREEMENT made as of this 10th
day of January, 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
SOUTH JERSEY TRANSPORTATION AUTHORITY, a public body having
an office at Xxxxxx Xxxxxxx Xxxxx, X.X. Xxx 000, Xxxxxxxxx,
Xxx Xxxxxx 00000 and MIRAGE RESORTS, INCORPORATED, a Nevada
corporation, having its principal office and place of
business at 0000 Xxx Xxxxx Xxxxxxxxx Xx., Xxx Xxxxx, Xxxxxx
00000.
W I T N E S S E T H:
WHEREAS, the State and Developer desire to
cooperate with respect to a project that will improve
circulation in Atlantic City and minimize the impact of
traffic on residential neighborhoods; and
WHEREAS, there exists a public purpose for
connecting the Atlantic City Expressway and Route 30 and
improving access to Brigantine along a route that serves the
marina area of Atlantic City; and
WHEREAS, Developer is desirous of developing one
or more casino entertainment complexes in the marina area of
1
Atlantic City, New Jersey which will have an impact on
traffic in such area; and
WHEREAS, Developer has advised the State that it
intends to invest or cause to be invested not less than $205
million for the following purposes: (i) relocating certain
facilities of Atlantic City, New Jersey ($15 million); (ii)
environmental remediation of the Marina Land ($35 million);
(iii) construction of the Road Project on the terms and
conditions provided in this Agreement ($110 million); and
(iv) construction of internal roadways on the Marina Land
($45 million), in addition to the substantial amounts it
intends to invest in developing and constructing the Casino
Project; and
WHEREAS, the State, based upon a report of the
Governor's Task Force on Atlantic City Access and
Circulation and additional assessments and evaluations, has
determined a need for certain improvements to be made to the
transportation infrastructure in Atlantic City, New Jersey;
and
WHEREAS, the State and SJTA have determined,
pursuant to the provisions of N.J.S.A. 27:1A-5, 27:7-21 and
27:25A-23 that it is in the public interest to construct
2
such transportation infrastructure improvements and
Developer, the State and SJTA agree that it would be in
their mutual best interests to cooperate with respect to the
construction of such transportation infrastructure
improvements subject to the terms and conditions hereinafter
outlined in this Agreement; and
WHEREAS, on September 17, 1996 the State and
Developer executed and delivered the Memorandum which, among
other matters, provides for the State and Developer to
prepare, execute, acknowledge and deliver definitive
documentation (referred to in the Memorandum as the
Definitive Agreements) to set forth in detail all of the
respective rights and obligations of the State and Developer
with respect to the Road Project; and
WHEREAS, the State, SJTA and Developer desire to
set forth in this instrument all of their respective rights
and obligations with respect to the Road Project.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
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ARTICLE 1 - DEFINITIONS
Section 1.1 Definitions
For purposes of this Agreement, the following
terms have the following definitions:
Affiliate shall mean (i) any Person directly or
indirectly controlling, controlled by or under common
control with another Person, (ii) a Person owning or
controlling ten (10%) percent or more of the outstanding
voting securities of such other Person; (iii) any executive
officer, director or, with respect to a partnership, a
general partner of such Person; and (iv) if such other
Person is an executive officer, director or partner, any
company for which such Person acts in any such capacity;
Agreement shall mean this instrument, including
the Schedules and Exhibits attached hereto, as such
instrument may, from time to time, be amended in accordance
with the provisions hereof;
Bankruptcy shall mean the occurrence of any of the
following events in respect of any Person: (1) the granting
of relief against such Person in an involuntary case under
the Federal Bankruptcy Code which is not removed within one
hundred-twenty (120) days, or in any such involuntary case,
the approval of the petition by such Person as properly
filed, or the admission by such Person of material
4
allegations contained in the petition, (2) the execution by
such Person of a general assignment for the benefit of
creditors, (3) the commencement of a voluntary case under
the Federal Bankruptcy Code by such Person, (4) the
appointment of a receiver for such Person or for all or a
substantial part of the assets of such Person and such
receivership proceedings are not removed within one hundred-
twenty (120) days after the receiver's appointment, or (5)
in the case of a Person which is a corporation, joint
venture, partnership or other business entity, the
commencement by such Person of liquidation, dissolution or
winding-up proceedings, or the commencement against such
Person of a proceeding to liquidate, wind-up or dissolve
such Person, which proceeding is not dismissed within one
hundred-twenty (120) days;
Casino shall mean an area for conducting gaming
operations, to the extent permitted by the Casino Control
Act;
Casino Control Act shall mean the applicable
provisions of the New Jersey Revised Statutes permitting,
regulating and taxing the acquisition, development,
ownership, operation and management of a Casino, as the same
may hereafter be amended from time to time, and any
statute(s) hereafter enacted in replacement thereof and the
5
regulations, if any, promulgated from time to time pursuant
thereto;
Casino Project shall mean the casino/hotel
contemplated to be designed and constructed by an Affiliate
of Developer on the Marina Land pursuant to the Marina Land
Redevelopment Agreement;
Casino Project Permits shall mean all permits,
licenses, consents, certificates of occupancy,
authorizations and approvals, each in form and content
satisfactory to Developer, now or hereafter required by any
government agency in order to permit Developer to develop,
construct, own or operate the Casino Project;
Closing shall have the meaning set forth in
Section 10.1;
CRDA shall mean the Casino Reinvestment
Development Authority of New Jersey;
D/B Contractor shall mean the Person retained by
Developer pursuant to the D/B Road Contract to design and
construct the Road Project;
D/B Road Contract shall mean the fixed price
written contract between Developer and the D/B Contractor,
pursuant to which the D/B Contractor is retained by
Developer to design and construct the Road Project as such
6
fixed price written contract may, from time to time, be
amended in accordance with the provisions thereof;
Developer shall mean Mirage Resorts, Incorporated,
a Nevada corporation; provided, however, upon delivery of an
instrument of assignment and assumption in accordance with
Section 13.1, the term Developer shall mean and refer only
to the assignee pursuant to such instrument, except to the
extent that Mirage Resorts, Incorporated retains its
financial obligations under this Agreement pursuant to
Section 13.1;
Developer Road Project Funding Sources shall mean
and be limited to a total of $110 million, consisting of (a)
contributions by Developer aggregating $55 million to the
project account for the Road Project which is within the
Special Transportation Fund; and (b) payments aggregating
$55 million by Developer to CRDA or such other public agency
of the State acceptable to CRDA and Developer which are
repayable to Developer pursuant to Section 5.4.1.2 hereof;
DOT shall mean the Department of Transportation of
the State of New Jersey;
Gaming Regulator shall mean any government agency
having or asserting jurisdiction over gaming operations, and
any successor or successors thereto;
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Law shall mean any applicable statute, law,
regulation, ordinance, rule, judgment, order or decree,
whether now or hereafter in effect;
Litigation shall mean any action or proceeding
pending or threatened with respect to the Road Project, the
Road Project Site, the Marina Land, the Marina Land
Redevelopment Agreement or the Casino Project;
Marina Land shall mean the parcel of land in the
marina area of Atlantic City known as the Huron North
Redevelopment Area and commonly referred to as the H-Tract
as more particularly described in the Marina Land
Redevelopment Agreement, and on which Developer or an
Affiliate thereof intends, together with others, to build or
cause to be built internal traffic infrastructure
improvements which Developer estimates will cost in excess
of $45 million and one or more Casinos;
Marina Land Redevelopment Agreement shall mean the
agreement dated May 3, 1996 between Developer and the City
of Atlantic City pursuant to which Developer was given the
right to develop the Marina Land, as the same may, from time
to time be amended;
Memorandum shall mean that Memorandum of
Understanding made as of September 17, 1996 between the
8
State and Developer, together with Exhibit A annexed
thereto, as amended October 31, 1996 and December 6, 1996;
Notice and Notices shall have the respective
meanings set forth in Section 13.4;
Person shall mean any individual, limited or
general partnership, trust, corporation, association,
governmental body, or other legal entity;
Preliminary Design Work shall mean the design,
engineering, electrical, geotechnical, environmental and
other work to be performed by the Program Manager during the
Preliminary Design Phase (as defined in the Program
Management Agreement);
Preliminary Road Project Budget shall mean the
tentative budget for the Road Project as approved by the
State, SJTA and Developer as of the date of this Agreement
and attached hereto as Exhibit A;
Program Manager shall mean Xxxxxxx Xxxxxxxxxxxx -
FG, Inc., a Delaware corporation or any successor thereto;
Program Management Agreement shall have the
meaning set forth in Section 4.1.1.2;
Road Completion Date shall mean the date upon
which the construction of the Road Project has been
completed and accepted (including ownership) by SJTA (as
provided in the D/B Road Contract);
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Road Project shall mean the traffic infrastructure
improvements to be constructed in Atlantic City, New Jersey
and, upon completion, to be accepted, owned, maintained and
operated by SJTA and the State, or either, as depicted
conceptually on Exhibit A attached to the Memorandum,
together with such changes to such depiction as the State,
SJTA and the Developer may hereafter agree to;
Road Project Budget shall mean the final budget
for the Road Project as approved in writing by the State,
SJTA and Developer which shall include, without limitation,
all out of pocket direct costs, design, testing and
construction costs, land and right of way acquisition costs,
costs of Road Project Permits, engineering, construction
management, consultant and other professional fees,
insurance and other expenses as agreed to by the parties,
and contingencies agreed to among the parties (subject to
Section 4.8 hereof) and other line items, in such detail as
is contained in the Preliminary Road Project Budget, all of
which shall not exceed, in the aggregate, $330 million;
Road Project Funding Sources shall mean the
sources of payments to be made for the Road Project from
Developer Road Project Funding Sources and from State Road
Project Funding Sources;
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Road Project Permits shall mean all permits,
licenses, consents, authorizations and approvals required by
the State and by every government agency having or asserting
jurisdiction over the design and construction of the Road
Project to permit (a) Developer, the State and SJTA to
consummate and perform all of their respective obligations
pursuant to this Agreement, the Program Management Agreement
and the D/B Road Contract with respect to the design and
construction of the Road Project and (b) the Program Manager
and the D/B Contractor to consummate and perform all of
their obligations under the Program Management Agreement and
the D/B Road Contract, respectively;
Road Project Site shall mean the land shown on
Exhibit A annexed to the Memorandum, as such land shall be
shown on any approved changes to such Exhibit A;
SJTA shall mean the South Jersey Transportation
Authority, a public body corporate and politic of the State
of New Jersey organized under N.J.S.A. 27:25A-1 et seq;
State shall mean the State of New Jersey acting
through the DOT;
State Road Project Funding Sources shall mean and
be limited to a total of $220 million consisting of (a) $95
million from the Transportation Trust Fund less all sums
paid pursuant to Section 4.3 and not refunded to the State
11
pursuant to Section 5.2.3; and (b) $125 million financed
through SJTA.
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ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE STATE AND SJTA
Section 2.1 Representations and Warranties. In order
to induce Developer to enter into this Agreement, the State
hereby represents and warrants that the statements made in
Sections 2.2.1, 2.3.1, 2.4.1, 2.5.1, 2.6, 2.7, 2.8 and 2.9.1
are true and correct and SJTA hereby represents and warrants
that the statements made in Sections 2.2.2, 2.3.2, 2.4.2,
2.5.2, 2.6, 2.7, 2.8 and 2.9.2 are true and correct.
Section 2.2 Authorization of Agreement.
2.2.1 The execution and delivery of this Agreement by
the State and the consummation and performance by the State of
the transactions contemplated pursuant to this Agreement
have been duly authorized by all necessary action on the
part of the State and this Agreement is the valid and
binding obligation of the State, enforceable against the
State in accordance with its terms, subject to general
principles of equity, and to the rights of creditors
generally and to the provisions of the New Jersey
Contractual Liability Act and Tort Claims Act. Except as
shall be set forth on Schedule 2.2.1 (Schedule of Required
State Consents) to be delivered to Developer on or before
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February 14, 1997, and except for the appropriation of $84
million from the Transportation Trust Fund by the
Legislature of the State of New Jersey for the fiscal year
beginning July 1, 1997, which the State covenants to use its
best efforts to cause, neither the execution and delivery of
this Agreement nor the consummation and performance of the
obligations of the State under this Agreement, including,
without limitation, the payment for the Preliminary Design
Work, requires the consent of any Person. The State does
not know of any reason why the consents to be set forth on
Schedule 2.2.1 will not be obtained in a timely manner and
in the ordinary course of business.
2.2.2 The execution and delivery of this Agreement by
SJTA, and the consummation and performance by SJTA of the
transactions contemplated pursuant to this Agreement, must
be duly authorized by the Commissioners of SJTA and such
approval is subject to the Governor's veto period as
provided in N.J.S.A. 27:25A-1 et seq. After authorization
by the SJTA Commissioners and the absence of the Governor's
veto during the veto period, this Agreement will be the
valid and binding obligation of SJTA, enforceable against
SJTA in accordance with its terms, subject to general
principles of equity, and to the rights of creditors
14
generally and to the provisions of the New Jersey
Contractual Liability Act and Tort Claims Act. Except as
shall be set forth on Schedule 2.2.2 (Schedule of Required
SJTA Consents) to be delivered to Developer on or before
February 14, 1997, neither the execution and delivery of
this Agreement nor the consummation and performance of
SJTA's obligations under this Agreement, requires the
consent of any Person except as will be set forth on
Schedule 2.2.2. SJTA does not know of any reason why the
consents to be set forth on Schedule 2.2.2 will not be
obtained in a timely manner and in the ordinary course of
business.
Section 2.3 Agreement Not in Violation of Law or
Contracts.
2.3.1 Except as shall be set forth on Schedule
2.3.1 (Schedule of State Breaches) to be delivered to Developer
on or before February 14, 1997, to the knowledge of the State
after reasonable inquiry, the execution, delivery,
consummation and performance of this Agreement by the State,
including, without limitation, the creation and funding of
all State Road Project Funding Sources and the payment for
the Preliminary Design Work will not constitute a breach,
violation or default of, or create a lien under, or conflict
15
with, in any material respect, (a) any contract, indenture,
mortgage, deed of trust, promissory note, lease or other
agreement or instrument to which the State is a party or by
which the State is bound, or (b) any Law or other
requirement of the State or (c) any judgment, ruling, order
or requirement of any court, tribunal or arbitrator.
2.3.2 Except as shall be set forth on Schedule 2.3.2
(Schedule of SJTA Breaches) to be delivered to Developer on
or before February 14, 1997, to the knowledge of SJTA after
reasonable inquiry, the execution, delivery, consummation
and performance of this Agreement by SJTA, including,
without limitation, the funding of SJTA obligations under
this Agreement, after the obtaining of the consents required
under Schedule 2.2.2 will not constitute a breach, violation
or default of, or conflict in any material respect with (a)
any contract, indenture, mortgage, deed of trust, promissory
note, lease or other agreement or instrument, to which SJTA
is a party or under which SJTA is bound, or (b) any Law or
other requirement of the State of New Jersey, DOT or SJTA or
(c) any judgment, ruling, order or requirement of any court,
tribunal or arbitrator.
16
Section 2.4 Contracts; etc.
2.4.1 Except as shall be set forth on Schedule 2.4.1
(Schedule of State Contracts) to be delivered to Developer
on or before February 14, 1997, to the knowledge of the
State, after reasonable inquiry, the State has not entered
into any material contract, written or oral, affecting all
of any part of the Road Project, the Road Project Site or
the Marina Land or the ownership, operation or management of
the Road Project, the Road Project Site, the Marina Land or
the consummation or performance of the obligations of the
State under this Agreement, including, without limitation,
the creation and funding of all State Road Project Funding
Sources and the payment for the Preliminary Design Work and
to the best knowledge of the State, except as shall be set
forth on Schedule 2.4.1, there are no such contracts,
written or oral, of any nature or type, with respect to the
Road Project, the Road Project Site or the Marina Land.
There shall be attached to Schedule 2.4.1 true, correct and
complete copies of all such written contracts with the State
which are currently in effect with respect to the Road
Project, the Road Project Site and the Marina Land and the
ownership, operation or management thereof and the
17
consummation or performance of the transactions contemplated
by this Agreement, plus all amendments and modifications
thereto; and where Schedule 2.4.1 refers to oral agreements,
Schedule 2.4.1 shall set forth all of the material terms
thereof, including without limitation, the parties, term,
price or fee, services to be rendered and rights of
extension or cancellation. All contracts listed on or
attached to Schedule 2.4.1 shall be in full force and effect
in accordance with their respective terms. No party to any
contract to be attached to or referred to in Schedule 2.4.1
has asserted any claim of default or offset against the
State with respect thereto and no event has occurred or
failed to occur the occurrence or non-occurrence of which,
as the case may be, would in any way affect the validity or
enforceability of any such contract or give rise, with the
passage of time or the giving of notice, or both, to any
claim against the State of any default under such contract.
2.4.2 Except as shall be set forth on Schedule 2.4.2
(Schedule of SJTA Contracts) to be delivered to Developer on
or before February 14, 1997, to the knowledge of SJTA after
reasonable inquiry, SJTA has not entered into any material
contract, written or oral, affecting all of any part of the
18
Road Project, the Road Project Site or the ownership,
operation or management of the Road Project, the Road
Project Site, or the consummation or performance of SJTA
under this Agreement, and to the best knowledge of SJTA,
after reasonable inquiry, except as to be set forth on
Schedule 2.4.2, there are no such contracts, written or
oral, of any nature or type, with respect to the Road
Project, the Road Project Site or the Marina Land. There
shall be attached to Schedule 2.4.2 true, correct and
complete copies of all such written contracts with SJTA
currently in effect with respect to the Road Project, the
Road Project Site and the Marina Land and the ownership,
operation or management thereof and the consummation or
performance of the transactions contemplated by this
Agreement, plus all amendments and modifications thereto;
and where Schedule 2.4.2 refers to oral agreements, Schedule
2.4.2 shall set forth all of the material terms thereof,
including without limitation, the parties, term, price or
fee, services to be rendered and rights of extension or
cancellation. All contracts to be listed on or attached to
Schedule 2.4.2 shall be in full force and effect in
accordance with their respective terms. No party to any
contract to be attached to or referred to in Schedule 2.4.2
has asserted any claim of default or offset against SJTA
19
with respect thereto and no event has occurred or failed to
occur the occurrence or non-occurrence of which, as the case
may be, would in any way affect the validity or
enforceability of any such contract or give rise, with the
passage of time or the giving of notice, or both, to any
claim against SJTA of any default under such contract.
Section 2.5 Absence of Legal Proceedings.
2.5.1 Except as shall be set forth on Schedule 2.5.1
(Schedule of State Litigation) to be delivered to Developer
on or before February 14, 1997, there are no material
actions, claims, proceedings (including, without limitation,
condemnation and eminent domain proceedings) or investiga-
tions whether at law or in equity, by any Person, pending
against or affecting the Road Project or the Marina Land to
which the State is a party. True copies of all documents or
instruments to be listed or referred to on Schedule 2.5.1
shall be delivered to Developer when Schedule 2.5.1 is
delivered to Developer. The State does not know of any
outstanding judgments or orders of any court, government
agency, or arbitrator affecting the Road Project or the
Marina Land.
2.5.2 Except as shall be set forth on Schedule
2.5.2 (Schedule of SJTA Litigation) to be delivered
20
to Developer on or before February 14, 1997, there are no
actions, claims, proceedings (including, without limitation,
condemnation and eminent domain proceedings) or investiga-
tions whether at law or in equity, by any Person, or by any
government agency, pending against or affecting the Road
Project or the Marina Land to which SJTA is a party. True
copies of all documents or instruments to be listed or
referred to on Schedule 2.5.2 shall be delivered to
Developer when Schedule 2.5.2 is delivered to Developer.
SJTA does not know of any outstanding judgments or orders of
any court, government agency, or arbitrator affecting the
Road Project or the Marina Land.
Section 2.6 Dedication of Existing Land. Except
as set forth in the Memorandum or in the Marina Land
Redevelopment Agreement, to the respective knowledge of the
State or SJTA, after reasonable inquiry, no commitment, oral
or written, has been made by the State or SJTA which would
impose any material obligation upon Developer, the State or
SJTA to make any dedication of land or to construct, install
or maintain any improvements of a public or private nature
on or about the Road Project Site or the Marina Land.
21
Section 2.7 Preliminary Budget. The Preliminary
Road Project Budget fairly represents a reasonable estimate
of the cost of the Road Project.
Section 2.8 Preliminary Time Schedule. The
parties have agreed upon a preliminary schedule which fairly
represents a reasonable estimate of the time necessary to
construct the Road Project and the Casino Project and the
relationship between the times at which events are
anticipated to occur with respect to such construction,
subject to force majeure events.
Section 2.9 Omissions.
2.9.1 The warranties and representations by
the State in Sections 2.2.1, 2.3.1, 2.4.1, 2.5.1, 2.6, 2.7
and 2.8 and the information set forth in the Schedules
referred to therein to be attached to and made part of this
Agreement do not contain any material misstatement of fact
or omit any material fact necessary to be stated in order to
make said warranties, representations and information not
misleading.
2.9.2 The warranties and representations by
SJTA in Sections 2.2.2, 2.3.2, 2.4.2, 2.5.2, 2.6, 2.7 and
2.8 and the information set forth in the Schedules referred
to therein to be attached to and made part of this Agreement
22
do not contain any material misstatement of fact or omit any
material fact necessary to be stated in order to make said
warranties, representations and information not misleading.
23
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF DEVELOPER
Section 3.1 Representations and Warranties. In order
to induce the State and SJTA to enter into this Agreement,
Developer hereby represents and warrants that the statements
made in the balance of this Article 3 are true and correct.
Section 3.2 Organization of Developer. Developer is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada with full
power and authority to own or lease its properties and to
conduct its business in the manner and in the places where
such properties are owned or leased or such business is
conducted by it.
Section 3.3 Authority of Developer. Developer has
full power and authority to execute, deliver and perform its
obligations under this Agreement and this Agreement is the
valid and binding obligation of Developer enforceable in
accordance with its terms, subject to laws of general
application affecting creditors' rights and to general
principles of equity. Except for the Road Project Permits
and the Casino Project Permits, and except for any consent
or approval of SJTA or the State required pursuant to this
24
Agreement, neither the execution and delivery by Developer
of this Agreement nor the consummation by Developer of the
transactions contemplated by this Agreement requires the
consent of any other Person.
Section 3.4 Agreement Not in Violation of Law. The
execution, delivery and performance by Developer of this
Agreement, and the consummation by Developer of the
transactions contemplated by this Agreement, will not
constitute a breach, violation or default of, or create a
lien under, or conflict with (a) the charter or by-laws of
Developer; or (b) any contract, indenture, mortgage, deed of
trust, promissory note, lease or other agreement or
instrument to which Developer is a party or by which it is
bound; or (c) any Law or other requirements of any
government agency; or (d) any judgment, ruling or order of
any court or arbitrator.
Section 3.5 Contracts; etc. Except as shall be set
forth on Schedule 3.5 (Schedule of Developer's Contracts) to
be delivered to the State and SJTA on or before February 14,
1997, the Developer has not entered into any contracts,
written or oral, affecting all of any part of the Road
Project, the Casino Project, the Road Project Site or the
Marina Land or the ownership, operation or management of the
25
Road Project, the Casino Project, the Road Project Site or
the consummation or performance of the transactions
contemplated by this Agreement and, to the best knowledge of
the Developer, there are no such contracts, written or oral,
of any nature or type, with respect to the Road Project, the
Casino Project, the Road Project Site or the Marina Land.
Attached to Schedule 3.5 shall be true, correct and complete
copies of all written contracts to which Developer or an
Affiliate of Developer is a party or is bound currently in
effect with respect to the Road Project, the Casino Project,
the Road Project Site and the Marina Land (except for the
Program Management Agreement and the Marina Land
Redevelopment Agreement, copies of which have previously
been delivered to the State) and the ownership, operation
or management thereof and the consummation or performance of
the transactions contemplated by this Agreement, plus all
amendments and modifications thereto; and where Schedule 3.5
refers to oral agreements, Schedule 3.5 shall set forth all
of the material terms thereof, including without limitation,
the parties, term, price or fee, services to be rendered and
rights of extension or cancellation. All contracts listed
on or attached to Schedule 3.5 shall be in full force and
effect in accordance with their respective terms and, except
26
as noted on Schedule 3.5, all such contracts shall be
terminable on thirty (30) days' notice by the Developer. No
party to any contract attached to or referred to in Schedule
3.5 shall have asserted any claim of default or offset
against the Developer with respect thereto and no event
shall have occurred or failed to occur the occurrence or
non-occurrence of which, as the case may be, would in any
way affect the validity or enforceability of any such
contract or give rise, with the passage of time or the
giving of notice, or both, to any claim against the
Developer or any government agency of any default under such
contract.
Section 3.6 Absence of Legal Proceedings. Except as
shall be set forth on Schedule 3.6 (Schedule of Developer
Litigation) to be delivered to the State and SJTA on or
before February 14, 1997, there are no actions, claims,
proceedings or investigations, whether at law or in equity,
by any Person or by any government agency, pending against
or affecting, the Road Project, the Casino Project, the Road
Project Site or the Marina Land of which Developer has
knowledge. True copies of all documents or instruments
listed or referred to on Schedule 3.6 shall be delivered to
the State and SJTA upon delivery of Schedule 3.6. Developer
27
does not know of any outstanding judgments or orders of any
court, government agency, or arbitrator affecting the Road
Project, the Road Project Site or the Marina Land.
Section 3.7 Preliminary Budget. The Preliminary Road
Project Budget fairly represents a reasonable estimate of
the cost of the Road Project.
Section 3.8 Preliminary Time Schedules. Provided the
State gains beneficial use of or acquires the Road Project
Site within twelve (12) months after Closing, the
preliminary schedule referred to in Section 2.8 fairly
represents a reasonable estimate of the anticipated
timelines for the construction of the Road Project and the
Casino Project, subject to force majeure events.
Section 3.9 Omissions. The foregoing warranties and
representations in Sections 3.2 to 3.8 inclusive and the
information set forth in the Schedules referred to therein
to be attached to and made a part of this Agreement do not
contain any material misstatement of fact or omit any
material fact necessary to be stated in order to make said
warranties, representations and information not misleading.
28
ARTICLE 4
COVENANTS OF THE STATE AND SJTA
Section 4.1 Covenants and Agreements by the State and
SJTA. From and after the date of this Agreement and through
and including the occurrence of the Closing, and thereafter
until the Road Completion Date, the State and SJTA shall:
4.1.1 Preliminary Design Work. Assist Developer in
obtaining the performance of all Preliminary Design Work for
the Road Project including:
4.1.1.1 Meet with Developer from time to time
to review and evaluate possible modifications to the Road
Project and, when acceptable, approve such other changes as
Developer may reasonably request to the Road Project in
order that the projected or actual cost of the Road Project
not exceed the Road Project Budget provided that safety is
not compromised.
4.1.1.2 When requested by Developer, not
unreasonably withhold, delay or condition its approval of
all work performed by the Program Manager pursuant to the
Program Management Agreement dated November 19, 1996 between
Developer and Program Manager (such agreement as the same
may, from time to time, be amended in accordance with the
29
provisions thereof, hereafter the "Program Management
Agreement"). Within ten (10) days after receipt of a Notice
seeking approval of work, the State and SJTA shall send a
Notice to Developer setting forth its approval or its
disapproval of such work, and, if a disapproval, its reasons
therefor.
4.1.1.3 The State and SJTA shall each
cooperate with the Program Manager in the performance of its
obligations under the Program Management Agreement.
Section 4.2 Determination of Road Project Budget and
Schedule. The State and SJTA shall, together with
Developer, from time to time, analyze all anticipated direct
and indirect costs of the construction of the Road Project,
and shall provide Developer with all work sheets including
all internal analyses of costs, appraisals of land and right
of way and other information and data which it may have in
its possession or under its control dealing with such costs
and will, from time to time, as reasonably requested by
Developer meet with Developer to determine the Road Project
Budget and the schedule for construction of the Road
Project. The State and SJTA will each use its best efforts,
in cooperation with Developer, to determine the Road Project
Budget and schedule for the construction of the Road Project
30
and Casino Project by April 15, 1997, and such Road Project
Budget and schedule for the construction of the Road Project
and Casino Project shall be initialed by the State, SJTA and
Developer.
Section 4.3 Payment for Preliminary Design Work. The
State will, in accordance with the payment obligations of
Developer under the Program Management Agreement, make
progress payments to Developer within ten (10) days after
the submission of completed invoices for such work for all
Preliminary Design Work certified by Developer to have been
performed and for all other sums due for Preliminary Design
Work pursuant to the Program Management Agreement.
Section 4.4 Funding of Road Project. The State and
SJTA will each use its respective best efforts in good faith
to arrange and have available at the Closing all State Road
Project Funding Sources, all of which will be dedicated and
available to be paid when payments are required pursuant to
the Road Project Budget and the D/B Road Contract, which
payments shall, in no event exceed the aggregate of $220
million. Without limiting the foregoing, from the date
hereof through the Closing, the State and SJTA will each
diligently pursue all appropriate financing sources to
enable the State and SJTA to obtain the funding contemplated
31
to be obtained by the State and SJTA under this Agreement
and will consult with and advise Developer on a regular
basis with respect thereto.
Section 4.5 D/B Road Contract.
4.5.1 The State and SJTA shall cooperate with
Developer in soliciting, in accordance with all provisions
of Law, bids from qualified road design and construction
firms and awarding the D/B Road Contract to the lowest
responsible bidder submitting a responsive bid. Subsequent
to the receipt of bids by the Developer and prior to the
award of the D/B Road Contract, the Developer shall provide
the State and SJTA with copies of the bids and the name of the
apparent low bidder. Within five (5) days of receipt of
such copies, the State and SJTA shall send a Notice to
Developer either approving the award of the D/B Road
Contract to the apparent low bidder or setting forth the
reasons why approval cannot be granted.
4.5.2 Prior to the inclusion of the D/B Road
Contract in the D/B Road Contract bid documents, Developer
shall provide the State and SJTA with such contract for
review and, if acceptable, approval. The State and SJTA
shall not unreasonably withhold, condition or delay their
approval of the terms and conditions of the D/B Road
32
Contract, it being agreed that within ten (10) days after
such approval is requested, the State and SJTA shall either
send a Notice to Developer approving the D/B Road Contract
or send a Notice to Developer setting forth in writing the
reasons for not approving the terms and conditions of the
D/B Road Contract and the specific corrective language they
require. In all events the State and SJTA will use their
best efforts to grant such approval by February 8, 1997.
4.5.3 The State and SJTA shall, when
requested by Developer, not unreasonably withhold, delay or
condition their joint approval of all work performed by the
D/B Contractor, including all construction documents. Within
ten (10) days after receipt of a Notice seeking approval of
work, or of any construction documents, the State and SJTA
shall send a joint Notice to Developer setting forth in
writing either their approval of such work and construction
documents, or either, or the reasons for their not approving
such work and construction documents, or either, as the case
may be.
4.5.4 The State and SJTA shall cooperate with
the D/B Contractor in the performance of its obligations
under the D/B Road Contract. The State and SJTA shall jointly
designate a protocol for such cooperation and an individual
33
with full authority to obtain all decisions expeditiously on
behalf of the State and SJTA with respect to the D/B Road
Contract including approval of construction documents, work
and invoices for payment.
4.5.5 The State and SJTA each acknowledge
that in accordance with Law each cannot have any direct or
indirect interest or ownership in the D/B Contractor or its
subcontractors.
Section 4.6 Payment Under D/B Road Contract.
4.6.1 The State shall, within sixty (60)
days after the date hereof, establish procedures, including
the forms of invoices to be submitted for payments, all of
which shall be subject to the reasonable approval of
Developer, for the payment to Developer from Road Project
Funding Sources within twenty-five (25) days of submission
of completed invoices for work performed under the D/B Road
Contract. The procedures shall, nevertheless, meet the
following criteria:
4.6.1.1 The State and the Developer shall
establish a single depository account into which the State,
SJTA and the Developer shall, as required, deposit payments
of Road Project Funding Sources funds necessary to pay for work
performed under the D/B Road Contract, and other amounts in
34
the Road Project Budget, such deposits by the State, SJTA
and the Developer to be made at all times in a ratio of 2
(State and SJTA): 1 (Developer).
4.6.1.2 All payments of Road Project
Funding Sources shall at all times be made from State Road
Project Funding Sources and from Developer Road Project
Funding Sources in the ratio of 2 (State Road Project
Funding Sources): 1 (Developer Road Project Funding Sources).
4.6.1.2 The State will, in accordance with
the payment obligations of Developer under the D/B Road
Contract, upon submission by Developer of the information
necessary to comply with the procedures established in
accordance with Section 4.6.1, approve and cause payment to
Developer within twenty-five (25) days after the submission
of such information for all sums then claimed to be due the
D/B Contractor under the D/B Road Contract (including all
amounts to be retained by Developer under the D/B Road
Contract).
Section 4.7 Savings. If the final cost of
the Road Project, upon completion of the Road Project, is less
than $330 million the difference shall be allocated in the
following order.
35
4.7.1 As provided in the D/B Road Contract;
then
4.7.2 To the State, SJTA and Developer in
the ratio of 2 (State and SJTA): 1 (Developer).
Section 4.8 Construction Overruns. The State, SJTA and
Developer shall explore, in good faith, whether or not to
purchase financial guaranty, contingency or other insurance
to cover certain risks, the premiums, deductibles and co-
insurance amounts for which shall be deducted from the
"Contingency" line item in the Road Project Budget and paid
from Road Project Funding Sources.
Section 4.9 Change Orders. In the event that either
the State, SJTA or Developer requests, after the execution
and delivery of the D/B Road Contract, any change in Exhibit
A (in the form attached to the Memorandum together with such
changes as the State, SJTA and the Developer agreed to as of
the date of execution and delivery of the D/B Road Contract)
or in the scope of the Road Project, such change shall be
implemented only if the following conditions are met:
4.9.1 The party requesting the change shall
unconditionally agree in writing to pay for all additional
direct and indirect costs and expenses, if any, incurred by
36
the Program Manager, D/B Contractor, Developer, the State
and SJTA and resulting from the implementation of such
change (provided that, in all events the change maintains
reasonable access to the Marina Land); and
4.9.2 In the reasonable opinion of the party
not requesting the change, the change is acceptable in
design and the implementing of the change will not delay the
completion of the Road Project or otherwise adversely impact
in any material way the construction of the Road Project or
the benefits to be provided thereunder to such party.
Section 4.10 Acquisition of Land and Rights of Way.
The State shall use its best efforts to obtain beneficial use
of or acquire within twelve (12) months after the Closing the
land and rights of way necessary for the Road Project,
including land owned or controlled by Developer or by any
Affiliate of Developer, together with all improvements
situated thereon and all riparian rights with respect to all
such land, pursuant to the exercise of its power of eminent
domain with respect to all such land and rights of way and
otherwise in accordance with Law, irrespective of the state
of title to such land or the physical condition of the land
or of any improvements situated thereon, and shall pay all
37
owners of such land and rights of way so acquired the amount
required by Law. If, as a result of litigation or
settlement by the State, the aggregate cost paid by the
State for such property exceeds the aggregate cost of such
property as set forth in the Road Project Budget, the State
shall pay such excess cost from its own funds.
Section 4.11 Road Project Permits. The State and SJTA
shall cooperate with and assist Developer, the Program
Manager and the D/B Contractor in obtaining, in a timely
manner, all Road Project Permits.
Section 4.12 Casino Project Permits. The State shall
cooperate with Developer and any Affiliate of Developer in
obtaining, in a timely manner, all Casino Project Permits.
Section 4.13 Enforcement of Law. The State and SJTA
shall use their best efforts to assure the consistent
enforcement of all Laws and agreements requiring
contributions from projects generating traffic in Atlantic
City toward the costs of transportation infrastructure
improvements in Atlantic City.
Section 4.14 No Commitments. Neither the State nor
SJTA shall, prior to the completion and the acceptance of the
Road Project, make any commitments or agreements, whether
38
enforceable or not, which may have a material adverse impact
on the Road Project Site or the Marina Land.
Section 4.15 Full Information. Except to the extent
disclosure is precluded by Law, the State and SJTA shall
keep Developer fully informed as to all events which occur
with respect to the Road Project, the Road Project Site,
Road Project Permits, the Marina Land and Casino Project
Permits promptly upon becoming aware thereof and promptly
forward to Developer all written communications, instruments
and documents received by the State or any of its agents,
attorneys or other representatives with respect to the Road
Project, the Road Project Site, Road Project Permits and the
Marina Land and Casino Project Permits.
Section 4.16 Notice of Claims. The State and SJTA
shall promptly give written Notice to Developer of any actions,
claims, proceedings or investigations threatened or
commenced against the State or SJTA, which relate to, or
affect, the Road Project, the Road Project Site or the
Marina Land, any Road Project Permits, any Casino Project
Permits, or any licensing required in connection with either
the Road Project, the Marina Land or the Casino Project, or
which may affect the transactions contemplated by this
Agreement or the Marina Land Redevelopment Agreement. The
39
State and SJTA shall use their best efforts to defend
against any such actions, claims, proceedings or
investigations brought against either of them and shall
vigorously contest any action or proceeding brought to
enjoin, delay or challenge the transactions contemplated
hereby.
Section 4.17 Omit Action. The State and SJTA shall
neither take nor permit or consent to have any Person either
(i) take any action or (ii) fail, after Notice thereof, to
take all reasonable action if either the taking or
permitting the taking of such action or the failing to take
such action would cause (x) any of the representations and
warranties of the State and SJTA, as the case may be, which
are contained in this Agreement or the matters set forth on
the Schedules to be delivered by the State and SJTA to
become untrue in any material respect or (y) a breach of any
of the covenants made by the State and SJTA which are
contained in this Agreement and, if any condition or
circumstance occurs from and after the date of this
Agreement and prior to the Road Completion Date which would
cause any of the representations and warranties of the State
and SJTA which are contained in this Agreement or the
matters set forth on the Schedules to be delivered by the
40
State and SJTA to become untrue in any material respect,
give prompt written notice thereof to Developer.
Section 4.18 Assist Developer; Access.
4.18.1 The State and SJTA shall reasonably
cooperate with Developer and reasonably aid and assist and
provide any information reasonably requested by Developer in
connection with the transactions contemplated by this
Agreement. In addition, the State and SJTA shall assist
Developer in obtaining all Road Project Permits expeditiously
and shall take all other action reasonably requested by
Developer to assist Developer in performing its obligations
under the Program Management Agreement and the D/B Road
Contract.
4.18.2 The State hereby irrevocably grants
to Developer, the D/B Road Contractor and their respective
agents, employees, and designees the right to enter upon all
land and rights of way owned or possessed by the State in
order to comply with its obligations under this Agreement
until the completion and acceptance by the State and SJTA of
the Road Project.
Section 4.19 Satisfaction of Conditions. The State
and SJTA shall use their good faith best efforts, in
cooperation with Developer, to cause all of the conditions
41
to Closing to be satisfied in a timely manner and to avoid
any event or circumstance which would permit either party to
terminate this Agreement.
42
ARTICLE 5
COVENANTS OF DEVELOPER
Section 5.1 Covenants and Agreements by Developer.
From and after the date of this Agreement and through and
including the occurrence of the Road Completion Date,
Developer shall:
Section 5.2 Preliminary Design Work. Use its
reasonable best efforts to obtain the performance of all
Preliminary Design Work for the Road Project including:
5.2.1 Meet with the State and SJTA from time
to time to review and evaluate possible modifications of the
Road Project and approve, when acceptable, such other changes
as the State and SJTA may reasonably request to the Road
Project in order that the projected or actual cost of the
Road Project not exceed the Road Project Budget (provided
that reasonable access to the Marina Land is maintained).
5.2.2 Promptly upon receipt of payments from
the State in accordance with Section 4.3, remit from the funds
received the amount due the Program Manager in accordance
with the provisions of the Program Management Agreement.
43
5.2.3 If the D/B Road Contract in the form
and content approved by the State and SJTA is not executed
and delivered by Developer and the D/B Contractor on or
before September 17, 1997, or such later date as the State,
SJTA and Developer may approve, reimburse the State as
required by the Memorandum for one-half of all sums previously
paid by the State to Developer for Preliminary Design Work.
Section 5.3 Determination of the Road Project Budget.
Developer shall, together with the State and SJTA, from time
to time, analyze all anticipated direct and indirect costs
of the construction of the Road Project, and shall provide
the State and SJTA with all work sheets including all
internal analyses of costs and other information and data
which it may have in its possession or under its control
dealing with such costs, and will, from time to time, as
reasonably requested jointly by the State and SJTA, meet
jointly with the State and SJTA to determine the Road
Project Budget. The Developer will use its best efforts, in
cooperation with the State and SJTA, to determine the Road
Project Budget and schedule for the construction of the Road
Project and Casino Project by April 15, 1997, and such Road
Project Budget and schedule for the construction of the Road
44
Project and Casino Project shall be initialed by the State,
SJTA and Developer.
Section 5.4 Funding of Road Project.
5.4.1 Developer shall, from time to time, in
such order as shall be approved by Developer, the State,
SJTA and CRDA, provide the following Developer Road
Project Funding Sources which shall, in no event, exceed the
aggregate of $110 million:
5.4.1.1 Developer shall, as and when agreed
upon by Developer, the State and SJTA, but in a manner
consistent with the procedures described in Section 4.6,
contribute to the funding of the Road Project, as part of
the Developer Road Project Funding Sources, the amount of
$55 million, such contribution to be made to the account
designated pursuant to Section 4.6.1.1 or in such other
manner as Developer, the State and SJTA shall agree.
5.4.1.2 Developer shall, as and when
agreed upon by Developer, the State and SJTA, but in a
manner consistent with the procedures described in Section
4.6, make available to CRDA as part of the Developer Road
Project Funding Sources, an aggregate of $55 million in a
manner and on terms and conditions satisfactory to Developer,
CRDA, SJTA and the State, repayable from and collateralized
45
by future investment alternative tax obligations of Casinos,
whether owned by Developer, any Affiliate of Developer or by
others, on the Marina Land. The State and SJTA will use their
best efforts to cause the CRDA repayment obligation to be
evidenced by readily marketable bonds or notes issued by
CRDA, but do not represent or covenant that the debt
instruments will be readily marketable.
Section 5.5 D/B Road Contract.
5.5.1 Developer, with approval of the State
and SJTA, shall establish a procedure for prequalifying those
design and construction teams that may submit bids for the
D/B Road Contract. Subsequent to its receipt and evaluation
of all prequalification applications, Developer shall provide
the State and SJTA with copies of all materials received and
all evaluations performed by Developer. The State and SJTA
shall, within five (5) days thereafter, review and comment
upon the prequalification evaluations prior to their
finalization and prior to notification of the successful and
unsuccessful teams.
5.5.2 Developer shall solicit, in accordance with
all provisions of Law, bids from qualified road design and
construction firms and award the D/B Road Contract to the
46
lowest responsible bidder submitting a responsive bid. The
State and SJTA shall be provided with five (5) days to
review and comment upon bid submissions prior to
announcement of an award.
5.5.3 Developer shall not be required to
execute and deliver the D/B Contract unless Developer
approves of the terms and conditions of the D/B Road Contract.
Upon execution of the D/B Road Contract, Developer shall
comply with all of the material covenants to be performed by
Developer under the D/B Road Contract.
5.5.4 Developer shall, promptly upon receipt
of payments in accordance with Section 4.6, remit from the
funds received the amounts due the D/B Contractor in
accordance with the provisions of the D/B Road Contract.
5.5.5 Neither the Developer nor its Affiliates
shall have any direct or indirect interest or ownership in
the D/B Contractor or its subcontractors.
Section 5.6 Acquisition of Land. Following the
Closing, when required for purposes of the Road Project,
Developer shall acquire all property with respect to which
it or any Affiliate of Developer then holds options or has
contracted to purchase to be set forth on Schedule 3.5 and
concurrently convey such property to the State for a price
47
in each case equal to the fair market value thereof, as
determined by appraisals commissioned by the State.
However, the aggregate purchase price for such properties
shall not exceed Developer's or its Affiliates' aggregate
acquisition cost thereof (including option and extension
payments). The purchase price for such properties shall be
promptly paid to Developer or, at the State's election, may
be credited against Developer's next-occurring obligation to
fund Developer Road Project Funding Sources.
Section 5.7 Road Project Permits. Developer shall
apply for and use its good faith best efforts to obtain, in
a timely manner, all Road Project Permits necessary to
commence construction of the Road Project.
Section 5.8 Casino Project Permits. After the
Closing, Developer shall or shall cause an Affiliate of
Developer to prepare applications for and thereafter to
apply for and use good faith best efforts to obtain, in a
timely manner, all Casino Project Permits necessary to
commence construction of the Casino Project.
Section 5.9 Construction of Road Project.
Developer shall not commence construction of the Road
Project until it or an Affiliate acquires title to the
48
Marina Land or certifies to the State and SJTA that it shall
acquire such title.
Section 5.10 Full Information. Except to the extent
disclosure is precluded by Law, the Developer shall keep the
State and SJTA fully informed as to all events which occur
with respect to the Road Project, the Road Project Site,
Road Project Permits, the Marina Land and Casino Project
Permits promptly upon becoming aware thereof and promptly
forward to the State and SJTA all written communications,
instruments and documents received by the Developer, any
Affiliate of Developer, or any of its agents, attorneys or
other representatives with respect to the Road Project, the
Road Project Site, Road Project Permits, the Marina Land and
Casino Project Permits.
Section 5.11 Notice of Claims. Developer shall
promptly give Notice to the State and SJTA of any actions,
claims, proceedings or investigations threatened or commenced
against Developer which relate to, or affect, the Road
Project, the Road Project Site or the Marina Land, or any
Road Project Permits, any Casino Project Permits, or any
licensing required in connection with either the Road
Project, the Marina Land or the Casino Project, or which may
affect the transactions contemplated by this Agreement or
49
the Marina Land Redevelopment Agreement. Developer shall
use its best efforts to defend against any such actions,
claims, proceedings or investigations brought against it and
shall vigorously contest any action or proceeding brought to
enjoin, delay or challenge the transactions contemplated
hereby.
Section 5.12 Omit Action. Developer shall neither
take nor shall permit any Affiliate nor consent to have any
other Person either (i) take any action or (ii) fail, after
Notice thereof, to take all reasonable action if either the
taking or permitting the taking of such action or the
failing to take such action would cause any of the
representations and warranties of Developer which are
contained in this Agreement or the matters set forth on the
Schedules attached hereto and delivered by Developer to
become untrue in any material respect and, if any condition
or circumstance occurs from and after the date of this
Agreement and until the Road Completion Date has occurred
which would cause any of the representations and warranties
of Developer which are contained in this Agreement or the
matters set forth on the Schedules attached hereto and
delivered by Developer to become untrue in any material
50
respect, Developer shall give prompt written notice thereof
to the State and SJTA.
Section 5.13 Satisfaction of Conditions. Developer
shall use its good faith best efforts, in cooperation with
the State and SJTA, to cause all of the conditions to
Closing to be satisfied in a timely manner and to avoid any
event or circumstance which would permit either party to
terminate this Agreement.
Section 5.14 Community Involvement. Developer shall
develop and submit to the State and SJTA, for review and
approval, such approval not to be unreasonably withheld,
conditioned or delayed, a public information and involvement
program designed to disseminate information and gain input
from residents and business owners in the neighborhoods and
communities affected by the Road Project, appropriate state,
county and municipal officials, prospective users of the
Road Project and other interested members of the public.
Developer shall designate one or more individuals located in
Atlantic City who are capable of responding to public
inquiries and addressing public concerns. Developer shall
maintain a record of all inquiries and concerns and the
manner in which they were addressed and shall provide copies
of such record to an individual designated by the State and
51
SJTA from time to time as the State and SJTA may reasonably
request. All inquiries requiring State or SJTA input and
all concerns raised by governmental officials or agencies
shall be promptly brought to the attention of the State and
SJTA.
Section 5.15 Documents to Be Provided to State and
SJTA.
5.15.1 Developer shall provide the State and
SJTA with a copy of the schedule submitted by the D/B
Contractor, as well as all other documents reasonably
requested by the State and SJTA with respect to the Road
Project.
5.15.2 Developer shall provide the State and
SJTA with written reports detailing the progress and
percentage of completion of the Road Project on a monthly
basis and shall respond promptly to all questions and
concerns raised. The written reports shall advise the State
and SJTA of such matters as may be reasonably requested by
the State and SJTA, including anticipated extraordinary
conditions and schedule changes.
5.15.3 The State and SJTA may, upon
reasonable Notice, during regular business hours, examine
all records pertaining to the Road Project.
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Section 5.16 Inspection By State and SJTA.
5.16.1 The State and SJTA may, at any time,
and shall, promptly upon the request of Developer, visit the
Road Project Site, and inspect for work progress and
conformity of the work with the provisions of the D/B Road
Contract and the construction documents referred to therein.
The State and SJTA shall jointly advise Developer, in
writing, of all deficiencies noted, setting forth required
corrective action during each visit and provide Developer
with a reasonable period of time within which to require the
D/B Contractor to correct such deficiencies.
5.16.2 The State and SJTA, or either, shall,
within ten (10) days of being sent a Notice that the Road
Project is completed, inspect the Road Project Site and,
within three (3) working days after such inspection advise
Developer, in writing, of their acceptance of the Road
Project and a "punch" list of all deficiencies between the
work performed and the requirements of the D/B Road
Contract, setting forth the required corrective action and
provide Developer with a reasonable period of time within
which to require the D/B Contractor to correct such
deficiencies.
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5.16.3 Developer shall submit to the State and
SJTA, after the correction of the "punch" list of
deficiencies noted during the inspection described in
Section 5.16.2, a complete set of "as-built" plans, signed
by a professional engineer, licensed in the State of New
Jersey, who shall certify that the Road Project was
constructed substantially in accordance with the approved
construction documents, except as noted in such "as built"
plans.
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ARTICLE 6
CONDITIONS OF DEVELOPER TO CLOSING
Section 6.1 Conditions to the Obligation of
Developer at the Closing. The following matters set forth
in this Article 6 are express conditions to the obligations
of Developer pursuant to this Agreement and shall be
fulfilled at or prior to the Closing or waived by Developer,
such waiver, however, to be without prejudice to any right of
termination set forth in Section 12.1:
6.1.1 Each of the representations and
warranties contained in Article 2 (Representations and
Warranties of the State and SJTA) of this Agreement,
including the matters referred to on the Schedules referred
to in such Article and to be attached hereto and made a part
hereof, are true and correct in all material respects at the
Closing as though made on and as of the Closing.
Furthermore, the State and SJTA have performed, in all
material respects, all of its obligations under this
Agreement which by the terms thereof were to be performed on
or before the Closing and have delivered to Developer a
certificate dated as of the Closing, confirming compliance
with the conditions set forth in this Section 6.1.1.
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6.1.2 The execution and delivery of the D/B
Road Contract by Developer and the D/B Contractor at a fixed
price equal to or less than the amount allocated for the
design and construction of the Road Project in the Road
Project Budget, and otherwise in conformity to the
requirements with respect to the D/B Road Contract set forth
in this Agreement, such D/B Road Contract to include a
payment and performance bond in favor of Developer, the
State and SJTA, such bond to be in form and content approved
by Developer and issued by a company or companies approved
by Developer, such approval not to be unreasonably withheld,
conditioned or delayed, in the amount of the D/B Road Contract.
6.1.3 The approval by Developer of the Road
Project Budget.
6.1.4 The determination by Developer in the
exercise of its sole discretion that the State Road Project
Funding Sources and the proceeds of the payments under
Section 5.4.1.2 shall be dedicated adequately and in a
timely manner and be available for the Road Project. If the
Closing does not occur as a result of the failure to satisfy
this condition, the State will promptly reimburse Developer
for all of the costs and expenses reasonably incurred by
56
Developer and its Affiliates between the date of this
Agreement and the date of such termination in connection
with the Road Project. Such costs and expenses shall
include, without limitation, out-of-pocket engineering,
consultant, legal fees and expenses, option and extension
payments to acquire property, and the reasonable in-house
project management expenses of Developer and its Affiliates.
6.1.5 The determination by Developer that
the Casino Project and the Road Project may be completed in
accordance with Law.
6.1.6 The determination by Developer that
there is no Litigation which, in the reasonable opinion of
Developer would be likely to (a) materially impair either
(i) the commencement and completion of the Road Project
within the Road Project Budget and schedule referred to in
Section 4.2 or (ii) the commencement and completion of the
Casino Project in accordance with the Marina Land
Redevelopment Agreement or (b) materially increase the cost
of or delay completing the Casino Project.
6.1.7 All New Jersey gaming and CRDA tax
provisions, and all New Jersey Laws in effect on September
17, 1996 have not changed in any manner which would be
likely to materially delay, impede or increase the cost of
57
completing either the Road Project or completing or
operating the Casino Project and no such change is pending.
6.1.8 The receipt from the Attorney General
of the State and from General Counsel to SJTA of their
favorable opinions dated as of the Closing as to the matters
set forth on Exhibit B, in form and content acceptable to
Developer.
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ARTICLE 7
CONDITIONS OF STATE AND SJTA TO CLOSING
Section 7.1 Conditions to the Obligations of the
State and SJTA at the Closing. The following matters set
forth in this Article 7 are express conditions to the
obligations of the State and SJTA pursuant to this Agreement
and shall be fulfilled at or prior to the Closing or waived
by the State and SJTA such waiver, however, to be without
prejudice to any right of termination set forth in Section
12.2:
7.1.1 Each of the representations and
warranties contained in Article 3 (Representations and
Warranties of Developer) of this Agreement, including the
matters referred to on the Schedules referred to in such
Article and to be attached hereto and made a part hereof,
are true and correct in all material respects at the Closing
as though made on and as of the Closing. Furthermore,
Developer has performed, in all material respects, all of
its obligations under this Agreement which by the terms
thereof were to be performed on or before the Closing and
has delivered to the State and SJTA, a certificate of an
authorized officer of Developer dated as of the Closing
59
confirming compliance with the conditions set forth in this
Section 7.1.1.
7.1.2 The execution and delivery of the D/B
Road Contract by Developer and the D/B Contractor at a fixed
price equal to or less than the amount allocated for the
design and construction of the Road Project in the Road
Project Budget, and otherwise in conformity to the
requirements with respect to the D/B Road Contract set forth
in this Agreement, such D/B Road Contract to include a
payment and performance bond in favor of Developer and the
State and SJTA, such bond to be in form and content approved
by the State and SJTA, such approval not to be unreasonably
withheld, conditioned or delayed, and issued by a company or
companies approved by the State and SJTA in the amount of
the D/B Road Contract.
7.1.3 The approval by the State and SJTA of
the Road Project Budget.
7.1.4 The determination by the State and SJTA
that the Developer Road Project Funding Sources shall be
available adequately and in a timely manner for the Road
Project. If the Closing does not occur as a result of the
failure to satisfy this condition, Developer will promptly
reimburse the State and SJTA for all of the costs and
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expenses reasonably incurred by the State and SJTA between
the date of this Agreement and the date of such termination
in connection with the Road Project. Such costs and expenses
shall include, without limitation, out-of-pocket
engineering, consultant and legal fees and expenses, and the
State's and SJTA's reasonable in-house project management
expenses but shall not include any payments made by the
State pursuant to Section 4.3 of this Agreement or Section
6(b) of the Memorandum.
7.1.5 The determination by the State and SJTA
that the Casino Project and the Road Project may be completed
in accordance with Law.
7.1.6 The determination by the State and
SJTA that there is no Litigation which, in the reasonable
opinion of the State and SJTA, would be likely to (a)
materially impair either (i) the commencement and completion
of the Road Project within the Road Project Budget and
schedule referred to in Section 4.2 or (ii) the commencement
and completion of the Casino Project in accordance with the
Marina Land Redevelopment Agreement, or (b) materially delay
completing the Casino Project.
7.1.7 The receipt from Messrs. Xxxxxxx
Xxxxxxxx Xxxxx Xxxxxxxxxxx & Kuh, LLP, counsel to Developer,
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its favorable opinion dated as of the Closing as to the
matters set forth on Exhibit C, in form and substance
acceptable to the State and SJTA.
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ARTICLE 8
DOCUMENTS TO BE DELIVERED BY STATE AND SJTA AT CLOSING
Section 8.1 Documents Delivered by the State and SJTA
at the Closing. At the Closing, the State and SJTA, as
appropriate, will deliver or cause to be delivered to
Developer the following:
8.1.1 A certificate dated the date of the
Closing from the State and SJTA that all warranties and
representations of the State and SJTA in this Agreement,
including the matters listed or referred to on the Schedules
delivered by the State and SJTA hereto, are true and correct
in all material respects, and that the State and SJTA have
performed all covenants to be performed by the State and
SJTA between the date of this Agreement and the Closing
pursuant to this Agreement;
8.1.2 All documents or instruments initialed
for identification or incorporated by reference herein or
required, pursuant to other provisions of this Agreement, to
be delivered to Developer at the Closing;
8.1.3 The approval referred to in Section
7.1.3.
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8.1.4 The opinions of the Attorney General
of the State and from General Counsel of SJTA substantially
in the form of Exhibit C hereto; and
8.1.5 Such other documents and instruments
as may be reasonably required pursuant to this Agreement or
reasonably necessary to effectuate and comply with the
provisions of this Agreement to be effectuated or complied
with at the Closing.
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ARTICLE 9
DOCUMENTS TO BE DELIVERED BY DEVELOPER AT CLOSING
Section 9.1 Documents to be Delivered by Developer at
the Closing. At the Closing, Developer will deliver or
cause to be delivered to the State and SJTA, as appropriate,
the following:
9.1.1 A certificate dated the date of the
Closing from an authorized officer of Developer that all
warranties and representations of Developer in this
Agreement, including the matters listed or referred to on
any Schedule delivered by Developer, are true and correct in
all material respects and that Developer has performed all of
the covenants to be performed by Developer pursuant to
this Agreement;
9.1.2 A certified copy of the resolutions of
Developer authorizing the transactions contemplated by this
Agreement;
9.1.3 All documents or instruments initialed
for identification or incorporated by reference herein or
required, pursuant to other provisions of the Agreement, to
be delivered to the State at the Closing;
9.1.4 The notice to proceed to the D/B
Contractor to commence the design phase of the D/B Contract;
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9.1.5 The approval referred to in Section 6.1.3;
9.1.6 The opinion of Messrs. Xxxxxxx Xxxxxxxx
Xxxxx Xxxxxxxxxxx & Kuh, LLP substantially in the form of
Exhibit D; and
9.1.7 Such other documents and instruments
which may be reasonably required pursuant to this Agreement
or reasonably necessary to effectuate and comply with the
provisions of this Agreement to be effectuated or complied
with at the Closing.
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ARTICLE 10
CLOSING
Section 10.1 Time and Place of Closing. The closing
pursuant to this Agreement (the "Closing") shall occur at
the offices of the offices of DOT, 0000 Xxxxxxx Xxxxxx,
Xxxxxxx, Xxx Xxxxxx 00000, on July 8, 1997, or as soon
thereafter as all conditions to the Closing shall have been
satisfied or waived, or at such other place, date or time as
may be fixed by mutual agreement of the parties.
10.2 Further Assurances. The State, SJTA and
Developer, from time to time at the request of any party and
without further consideration, shall execute and deliver all
such documents and take such other action as such other
party may reasonably request to accomplish the purposes of
this Agreement and to effectuate the Closing.
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ARTICLE 11
SURVIVAL
Section 11.1 Survival. All representations and
warranties herein or in any schedule, certificate or
financial statement delivered by either party to the other
party incident to the transactions contemplated by this
Agreement hereby are material, shall be deemed to have been
relied upon by each other party notwithstanding any
investigation made by or on behalf of any such party or any
Affiliate thereof or the result thereof and shall survive
Closing or any earlier termination of this Agreement until
the close of business on the third (3rd) anniversary of the
earlier to occur of (a) the effective date of such
termination or (b) the Road Completion Date, unless a claim
shall be made with respect thereto within such period, in
which event such representation or warranty, as the case may
be, with respect to which such claim is made shall survive
until such claim is resolved.
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ARTICLE 12
TERMINATION
Section 12.1 Right to Terminate by Developer.
Notwithstanding any other provision in this Agreement, this
Agreement may be terminated by Developer by Notice sent in
accordance with Section 12.3 upon the occurrence of any of
the following events:
12.1.1 In the event that within sixty (60)
days after the delivery to Developer, the State and SJTA of
the preliminary engineering plans and specifications for the
design and construction of the Road Project prepared
pursuant to the Program Management Agreement, or by April 30,
1997, whichever is earlier, Developer, the State and SJTA
have not each confirmed to the others in writing that the Road
Project Budget is $330 million or less, each of the State,
SJTA and Developer agreeing not to unreasonably withhold,
condition or delay such confirmation, Developer may, by
Notice sent on or before thirty (30) days after such date,
elect to terminate this Agreement.
12.1.2 If at any time prior to the Closing any
of the conditions described in Section 6.1 will not, in the
reasonable opinion of Developer, be met on or before the
Closing.
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12.1.3 If at any time the State fails to
provide funds to permit Developer to make payments when due
for Preliminary Design Work under the Program Management
Agreement.
12.1.4 If at any time the State or SJTA fails
to provide State Road Project Funding Sources in a timely
manner.
12.1.5 If at any time the State or SJTA
breaches any of its covenants pursuant to this Agreement, and
such breach continues uncured for more than ten (10) days
after Notice thereof from Developer, unless such breach is not
susceptible to cure within such ten (10) day period, and the
State or SJTA, as the case may be, has commenced to cure the
breach within such ten (10) day period and has diligently
prosecuted such cure to completion.
12.1.6 If at any time Developer or any
Affiliate receives written notification from any Gaming
Regulator or has other evidence (which it has disclosed to
the State and SJTA) and which leads Developer to reasonably
believe that the termination of this Agreement is necessary
so that Developer or any Affiliate of Developer shall not
have any of its Gaming Operations in Nevada or Mississippi,
restricted, suspended or revoked.
70
12.1.7 If, on or before October 31, 1998,
Developer has not
12.1.7.1 Acquired title to the Marina Land or
sent a certification under Section 5.9; and
12.1.7.2 Obtained all Casino Project Permits
necessary to commence construction of the Casino Project; and
12.1.7.3 Obtained all Road Project Permits
necessary to commence construction of the Road Project; and
12.1.7.4 Sent a notice to commence construction
of the Road Project to the D/B Contractor.
12.1.8 If at any time after commencement of
the construction of the Road Project pursuant to the D/B
Road Contract any event beyond the reasonable control of
Developer or any Affiliate shall occur or fail to occur by
reason of which the Developer or its Affiliate cannot
proceed with or complete the construction of the Casino
Project.
12.1.9 If the Closing shall not have
occurred by July 31, 1997.
Section 12.2 Right to Terminate by the State and
SJTA. Notwithstanding any other provision in this
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Agreement, this Agreement may be terminated by the State and
SJTA by Notice sent in accordance with Section 12.3 upon the
occurrence of any of the following events:
12.2.1 In the event that within sixty (60)
days after the delivery to Developer, the State and SJTA of
the preliminary engineering plans and specifications for the
design and construction of the Road Project prepared
pursuant to the Program Management Agreement, or by April 30,
1997, whichever is earlier, Developer, the State and SJTA
have not each confirmed to the other in writing that the
Road Project Budget is $330 million or less, each of the
State, SJTA and Developer agreeing not to unreasonably
withhold, condition or delay such confirmation, the State
and SJTA may, by Notice sent or before thirty (30) days
after such date, elect to terminate this Agreement.
12.2.2 If at any time prior to the Closing
any of the conditions described in Section 7.1 will not, in
the reasonable opinion of the State and SJTA, be met on or
before the Closing.
12.2.3 Upon the Bankruptcy of Developer.
12.2.4 If at any time the Developer fails to
provide Developer Road Project Funding Sources in a timely
manner.
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12.2.5 If at any time Developer breaches any
of its covenants pursuant to this Agreement, and such breach
continues uncured for more than ten (10) days after Notice
thereof from the State and SJTA, unless such breach is not
susceptible to cure within such ten (10) day period, and
Developer has commenced to cure the breach within such ten
(10) day period and has diligently prosecuted such cure to
completion.
12.2.6 If, on or before October 31, 1998,
Developer has not
12.2.6.1 Acquired title to the Marina Land
or sent a certification under Section 5.9; and
12.2.6.2 Obtained all Casino Project Permits
necessary to commence construction of the Casino Project; and
12.2.6.3 Obtained all Road Project Permits
necessary to commence construction of the Road Project; and
12.2.6.4 Sent a notice to commence construction of
the Road Project to the D/B Contractor.
12.2.7 If the Closing shall not have occurred
by July 31, 1997.
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Section 12.3 Notice of Termination; Effect of
Termination.
12.3.1 If either Developer or the State and
SJTA elects to terminate this Agreement pursuant to the
provisions of Section 12.1 or 12.2, as the case may be,
such election shall be evidenced by a Notice to such effect
which Notice shall be effective thirty (30) days after the
date the Notice would otherwise, pursuant to Section 13.4 be
effective.
12.3.2 If this Agreement is terminated
pursuant to Section 12.1 or Section 12.2, then, in each such
instance, all rights and obligations of the parties under
this Agreement shall, as of the effective date of the Notice
of termination, terminate without liability of any party to
the other except (a) for the obligations of the State under
paragraph 6(b) of the Memorandum, (b) the right of the State
to reimbursements as described in paragraph 6(c) of the
Memorandum, (c) the State, SJTA and the Developer shall
fulfill their respective financial obligations with respect
to the Program Management Agreement and the D/B Road
Contract for amounts which either accrued prior to the
effective date of the Notice of termination through the
effective date of the Notice of termination or became
74
payable pursuant to either such agreement as a result of
such termination, (d) the right of Developer, if any, under
Section 6.1.4 and of the State and SJTA, if any, under
Section 7.1.4 to the reimbursement provided in such section
if such section is applicable, (e) the provisions of Article
11 (Survival), Sections 12.4, 12.5 and 13.16 and (f) if such
termination is the result of a breach of a covenant (rather
than the failure of a condition to occur) the non-breaching
party shall have all rights and remedies available at law or
in equity against the breaching party and shall also be
entitled to recover its reasonable attorneys' fees and
related costs and expenses from the breaching party.
Notwithstanding the foregoing:
12.3.2.1 In the event that Developer
exercises its option to terminate subsequent to the Closing
pursuant to any provision of Section 12.1 on or before
Developer acquires the Marina Land or sends a certification
under Section 5.9 or if the State or SJTA exercises its
option to terminate subsequent to the Closing pursuant to any
provision of Section 12.2 on or before Developer acquires the
Marina Land or sends a certification under Section 5.9, then
and in such event this Agreement shall terminate and the sole
remedies of the parties shall be as follows:
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12.3.2.1.1 All costs incurred by
the State or SJTA in connection with the acquisition of
beneficial use of or title to the Road Project Site shall be
borne solely by the State and SJTA;
12.3.2.1.2 All costs of the design
of the Road Project, including all fees and expenses of the
Program Manager, incurred after the execution and delivery
of the D/B Road Contract, shall be borne solely by
Developer; and
12.3.2.1.3 The State, SJTA and the
Developer shall make such adjustment in Road Project Funding
Sources heretofore expended so as to effectuate the
provisions of subparagraphs 12.3.2.1.1 and 12.3.2.1.2 above.
12.3.2.2 In the event that Developer elects
to terminate this Agreement pursuant to Section 12.1.8, this
Agreement shall immediately terminate and the State, SJTA and
the Developer shall be relieved of all further obligations
hereunder except that the State shall, at its sole cost and
expense, complete construction of the roadway between the
Atlantic City Expressway and Bacharach Boulevard and from
Route 30 to Brigantine Boulevard and may, if it so elects,
determine not to complete the tunnel portion of the Road
Project or otherwise provide access to the Marina Land and
76
the Developer shall, at its sole cost and expense, either
cause the tunnel portion of the Road Project to be made
safe in accordance with all requirements of Law or complete
such tunnel portion of the Road Project.
Section 12.4 Completion of Access Road to Casino.
In the event that this Agreement is terminated at a time
when the Casino Project has not been completed and thereafter
the Road Project or a similar road improvement project is
completed by the State and SJTA, or by either, and one or
more Casinos is constructed on the Marina Land and the State
and SJTA, or either, receives from the developer(s) of such
Casino(s) with respect to the Road Project, road improvement
funds in excess of the cost to complete the Road Project
from the date of termination of this Agreement, then the
State or SJTA shall, from such excess funds, promptly refund
to Developer an amount not to exceed all Developer Road
Project Funding Sources paid by Developer with respect to
the Road Project together with all amounts paid by Developer
under Section 12.3.2.1.
Section 12.5 Exchange of Documents. In the event
this Agreement is terminated, each party shall promptly
provide to the other parties copies of all papers and
documents reasonably requested by the other parties.
77
ARTICLE 13
MISCELLANEOUS
Section 13.1 Assignability. Developer shall have the
right to assign this Agreement and all of its rights and
obligations under this Agreement to Atlandia Design and
Furnishings, Inc., a New Jersey corporation and, with the
consent of the State and SJTA such consent not to be
unreasonably withheld, conditioned or delayed, to any other
corporation or entity which is, directly or indirectly,
wholly-owned by Mirage Resorts, Incorporated, provided such
assignee assumes in writing the obligations of its assignor
and a copy of such assignment and assumption is delivered to
the State and SJTA. Upon such delivery assignor shall be
released from all of its obligations pursuant to this
Agreement other than its financial obligations pursuant to
Sections 5.4 and 7.1.4 of this Agreement.
Section 13.2 Fees and Expenses. Except as otherwise
provided in this Agreement, each of the parties will bear
its own fees and expenses in connection with the negotiation
and the consummation of the transactions contemplated by
this Agreement.
Section 13.3 Governing Law, Venue and Service.
This Agreement shall be governed by and construed in
78
accordance with the laws of the State of New Jersey, without
giving effect to the principles of conflict of laws. All
actions or proceedings arising directly or indirectly from
this Agreement shall be litigated only in courts situated in
New Jersey. The Developer, State and SJTA each hereby
consent to the jurisdiction of the state courts of the State
of New Jersey and of any federal court located within the
State of New Jersey and Developer waives the personal
service of any and all process upon it and consents that all
such service of process may be made by certified or
registered mail, return receipt requested, directed to the
Developer at the address set forth in Section 13.4 below;
and service so made shall be complete five days after it is
posted.
Section 13.4 Notices. All notices, offers,
requests, approvals, elections, consents, acceptances,
waivers, reports, certifications, requests and other
communications required or permitted to be given hereunder
(each of the foregoing hereinafter referred to singly as a
"Notice" and collectively as "Notices") shall be in writing
and shall be deemed to have been duly given if delivered
personally with receipt acknowledged or sent by registered
or certified mail or equivalent, if available, return
79
receipt requested, or by recognized overnight courier for
next day delivery, addressed to the parties at their
respective addresses set forth below or to such other or
additional address as any party shall hereafter specify by
Notice to the other party, or by telecopier to the parties at
their respective telecopier numbers set forth below or to
such other or additional numbers as either party shall
hereafter specify by Notice to the other party:
If to the State to: c/o Department of
Transportation
0000 Xxxxxxx Xxxxxx XX000
Xxxxxxx, Xxx Xxxxxx 00000-0000
Attn: Commissioner
Telecopier: 000-000-0000
with a copy to: Attorney General
State of New Jersey
Xxxxxxx X. Xxxxxx
Justice Complex
CN112
Xxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx X. Xxxx, Esq.
Deputy Attorney General
Telecopier: 000-000-0000
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If to SJTA to: Xxxxxx Xxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx,
Executive Director
Telecopier: 000-000-0000
with a copy to: Xxxxxxx & Xxxxxxx, P.A.
00 Xxxxx Xxxxxx
X.X. Xxx 000
Xxxx Xxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx Xxxxxxx, Esq.
Telecopier No.: 000-000-0000
If to Developer to: Mirage Resorts, Incorporated
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
Telecopier No.: 000-000-0000
with a copy to: Xxxxxxx Xxxxxxxx Xxxxx
Xxxxxxxxxxx & Kuh, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxxxxx, Esq.
Telecopier No.: 000-000-0000
Any Notice containing a change of address or
telecopier number shall be deemed given when actually
received or upon refusal to accept delivery thereof; all
other Notices shall be deemed to have been given and
received on the earliest of: (a) when actually first
received or upon refusal to accept delivery thereof, (b) on
the date when delivered personally or sent by telecopier,
(c) one (1) business day after sending by recognized
overnight courier, or (d) four (4) business days after
mailing, as aforesaid.
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Any Notice signed by either the State or by SJTA
(other than a Notice sent pursuant to Article 12
(Termination), whether or not so denominated) shall be
irrevocably and incontestably binding upon SJTA and the
State. Any Notice sent under said Article 12 (Termination),
whether or not so denominated, must be duly executed on
behalf of the State and SJTA.
Section 13.5 Ownership of Road Project and Real
Property. Ownership of the Road Project and the Road
Project Site shall vest in SJTA upon completion and
acceptance of the Road Project. The State and Developer
agree to execute any and all documents necessary to the
transfer and vesting of title of the Road Project and Road
Project Site, to the extent they have any such interest and
without warranting the same, to SJTA.
Section 13.6 Headings and Word Meanings. The headings
in this Agreement are for convenience of reference only and
are not intended to define, limit or in any other way
describe the scope of this Agreement or the intent of any
provisions hereof. The singular shall include the plural
and the masculine gender shall include the feminine and
neuter, and vice versa, unless the context otherwise
requires.
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Section 13.7 Entire Agreement. This Agreement,
including the Schedules and Exhibits referred to herein,
constitutes the entire agreement between the parties hereto
relating to the subject matter hereof and supersedes all
prior agreements and understandings, written or oral, among
the parties relating to this subject matter, including,
without limitation, the Memorandum, except with respect only
to the Memorandum as provided in Sections 7.1.4 and 12.3.2
of this Agreement and the references in this Agreement to
Exhibit A which was attached to the Memorandum. This
Agreement is to be interpreted and construed solely on the
basis of those terms and provisions as are contained in the
final form and format of this Agreement, as executed and
delivered by the parties hereto; it being understood that
this Agreement in such final form and format also supersedes
all prior drafts or earlier versions of this Agreement, and
any notes or memoranda concerning or relating to this
Agreement, and that no assumptions, inferences or
presumptions shall be drawn or derived from or may be
predicated upon any changes, omissions, deletions or
additions from or to any prior drafts or earlier versions of
this Agreement.
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Section 13.8 Counterparts. This Agreement may be
executed in any number of counterparts, all of which
together shall constitute a single instrument.
Section 13.9 Modification. No modification or
amendment of this Agreement or any provision hereof shall be
effective unless in writing and executed by the party
against whom such modification or amendment is claimed.
Section 13.10 Equitable Relief. Each party confirms
that damages at law may be an inadequate remedy for a
breach or threatened breach of this Agreement and agrees
that, in the event of a breach or threatened breach of any
of the provisions hereof, the respective rights and
obligations hereunder shall be enforceable by specific
performance, injunction or other equitable remedy, but
nothing herein contained is intended to, nor shall it, limit
or affect any right or rights at common law or by statute or
otherwise of either party aggrieved as against the other
party for breach or threatened breach of any of the
provisions of this Agreement, it being the intention of this
Section to make clear that the respective rights and
obligations of the parties under this Agreement shall be
enforceable in equity as well as at law or otherwise.
Accordingly, if either party hereto shall institute any
84
action or proceeding in equity to enforce the provisions
hereof or to enjoin the violation or threatened violation
thereof, the party against whom such equitable action or
proceeding is brought hereby waives the claim or defense
therein that the first party has an adequate remedy at law,
and no party shall urge in such equitable action or
proceeding the claim or defense that such remedy at law exists.
Section 13.11 Severability. In case any one or
more of the provisions contained in this Agreement shall be
held to be invalid or unenforceable in any respect, the
validity and enforceability of the remaining provisions
contained herein shall not in any way be affected or
impaired thereby and shall be given full effect regardless
of the invalid portions and the parties will attempt to
agree upon a valid and enforceable provision which shall be
a reasonable substitute for such invalid and unenforceable
provision in light of the tenor of this Agreement, and, upon
so agreeing, the parties shall incorporate such substitute
provision in this Agreement. If any of the provisions of
this Agreement is held to be unenforceable because of the
duration of such provision, it is agreed that the authority
making such determination shall have the power to reduce or
85
limit such provisions and in such limited or reduced form
said provisions shall be enforceable.
Section 13.12 Construction. In construing either
this Agreement or any Schedule or Exhibit, instrument or
document delivered pursuant to this Agreement, the parties
agree that the rule of construction that ambiguous
provisions of a contract shall be construed against the
draftsman shall be inapplicable to this Agreement or such
Schedule or Exhibit, instrument or document or the portion
thereof in question.
Section 13.13 No Recording. Neither party shall
record this Agreement nor any memorandum thereof.
Section 13.14 Waiver. No consent or waiver, express
or implied, by either party hereto to or of any breach or
default by the other party in the performance by the other
of its obligations hereunder shall be deemed or construed to
be a consent or waiver to or of any other breach or default
in the performance by such other party of the same or any
other obligations of such party hereunder. Failure on the
part of either party hereto to complain of any act or the
failure to act of the party hereto or to declare the other
party in default, irrespective of how long such failure
continues, shall not constitute a waiver by such party of
86
its rights hereunder; provided that the foregoing shall not
prevent the assertion by the other party hereto of any other
defenses which may be available at law or in equity.
Section 13.15 No Third Party Beneficiaries. Neither
this Agreement nor any of its warranties, representations or
covenants creates or shall be construed as creating any
rights enforceable by any Person not a party to this
Agreement whether by operation of law, subrogation or
otherwise.
Section 13.16 Cooperation.
13.16.1 In the event that any Person not a
party to this Agreement commences any action, suit or
proceeding with respect to the Road Project or this
Agreement, each party, whether or not a party to such action,
suit or proceeding, shall fully cooperate with the other in
the defense of the claims asserted in such action, suit or
proceeding to the extent that the interest of the parties are
consistent. The parties hereto agree that no party, nor any
Affiliate of any party shall make any claim of any sort
against any other party to this Agreement or any Affiliate of
such party by reason of any claim that the D/B Road Contract
or the Program Management Agreement has not been properly
87
administered or the Road Project has not been properly
managed, designed or constructed; provided, however, if the
Developer either (a) interferes with the performance by
either the Program Manager under the Program Management
Agreement or the D/B Contractor under the D/B Road Contract
or (b) fails to enforce its contractual rights under either
the Program Management Agreement or the D/B Road Contract,
the State and SJTA may, as their sole remedy, commence an
action against Developer for specific performance either (i)
to enjoin such interference or (ii) to compel Developer to
enforce such contractual rights. The provisions of this
Section 13.16 shall not affect the rights of the parties to
this Agreement under Article 12 (Termination).
13.16.2 The Developer, State and SJTA recognize
and acknowledge that the D/B Contractor shall be held
accountable and liable for the proper design and
construction of the Road Project. The Developer, State and
SJTA agree to hold the D/B Contractor responsible for any
damages incurred by the parties hereto which result from the
D/B Contractor's breach of its obligations under the D/B
Road Contract.
88
Section 13.17 Binding Effect. This Agreement shall be
binding upon the signatories hereto and inure to the benefit
of their respective successors and, subject to the
provisions of Section 13.1, assigns.
[SIGNATURE PAGE FOLLOWS]
89
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement 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.
Acting Commissioner
SOUTH JERSEY TRANSPORTATION
AUTHORITY
By: XXXXX X. XXXXXXXX
Xxxxx X. Xxxxxxxx
Executive Director
MIRAGE RESORTS, INCORPORATED
By: XXXXX X. XXXXX
Xxxxx X. Xxxxx
Vice President and
General Counsel
THIS DOCUMENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM ON
THIS 10th DAY OF JANUARY, 1997
XXXXX XXXXXXXX
ATTORNEY GENERAL OF NEW JERSEY
By: XXXXX X. XXXX
Deputy Attorney General
90
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the
"Agreement") is made and entered into as of the 10th day of
January, 1997, by and between MIRAGE RESORTS, INCORPORATED, a
Nevada corporation ("Assignor"), and ATLANDIA DESIGN AND
FURNISHINGS, INC., a New Jersey corporation ("Assignee").
In consideration of the mutual covenants hereinafter
set forth, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Assignor hereby assigns, transfers and conveys
to Assignee all of Assignor's right, title and interest in and
to, and delegates to Assignee all of Assignor's obligations
under, the Road Development Agreement, of even date herewith
(the "Road Development Agreement"), among Assignor, as
"Developer," the State of New Jersey, acting through the
Department of Transportation (the "State"), and South Jersey
Transportation Authority ("SJTA").
2. Assignee hereby agrees to (i) assume all of the
obligations of Assignor under the Road Development Agreement
and (ii) indemnify, defend and hold harmless Assignor from and
against any and all liabilities or obligations which may be
imposed upon Developer under the Road Development Agreement.
3. Promptly following the execution of this
Agreement, Assignee agrees to deliver a fully executed
counterpart of this Agreement to the State and SJTA, whereupon
Assignor shall be released from all of its obligations pursuant
to the Road Development Agreement, other than its financial
obligations pursuant thereto.
4. This Agreement shall be governed by and
construed in accordance with the laws of the State of New
Jersey.
5. Each party agrees to execute and deliver such
other and further documents and instruments as may reasonably
be required to effectuate this Agreement.
6. This Agreement shall be binding on and inure
to the benefit of the parties hereto and their respective
successors and assigns.
IN WITNESS WHEREOF, the undersigned have executed this
Assignment and Assumption Agreement as of the date first
written above.
MIRAGE RESORTS, INCORPORATED
("Assignor")
By XXXXX X. XXXXX
XXXXX X. XXXXX
Vice President
ATLANDIA DESIGN AND
FURNISHINGS, INC.
("Assignee")
By XXXXX X. XXXXX
XXXXX X. XXXXX, Secretary
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