MACK-CALI RIGHTS, OBLIGATIONS AND OPTION AGREEMENT BY AND BETWEEN MEADOWLANDS DEVELOPER LIMITED PARTNERSHIP, MEADOWLANDS LIMITED PARTNERSHIP, MEADOWLANDS DEVELOPER HOLDING CORP., MEADOWLANDS MACK-CALI GP, L.L.C. MACK-CALI MEADOWLANDS SPECIAL L.L.C.,...
Exhibit
10.92
XXXX-XXXX
RIGHTS, OBLIGATIONS AND OPTION AGREEMENT
BY
AND BETWEEN
MEADOWLANDS
DEVELOPER LIMITED PARTNERSHIP,
MEADOWLANDS
LIMITED PARTNERSHIP,
MEADOWLANDS
DEVELOPER HOLDING CORP.,
MEADOWLANDS
XXXX-XXXX GP, L.L.C.
XXXX-XXXX
MEADOWLANDS SPECIAL L.L.C.,
XXXX-XXXX
MEADOWLANDS ENTERTAINMENT L.L.C.,
BASEBALL
MEADOWLANDS XXXXX/XXXX-XXXX LIMITED PARTNERSHIP,
A-B
OFFICE MEADOWLANDS XXXX-XXXX LIMITED PARTNERSHIP,
C-D
OFFICE MEADOWLANDS XXXX-XXXX LIMITED PARTNERSHIP,
HOTEL
MEADOWLANDS XXXX-XXXX LIMITED PARTNERSHIP
AND
ERC
MEADOWLANDS XXXXX/XXXX-XXXX LIMITED PARTNERSHIP
Execution
Date: November 22, 2006
TABLE
OF CONTENTS
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|
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Page
|
|
1.
|
Incorporation
of Recitals
|
6
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|
2.
|
Certain
Definitions
|
6
|
|
3.
|
MC
Partners’ Rights
|
19
|
|
4.
|
Purposes
and Powers of MDLP
|
20
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|
5.
|
Notice
of Lawsuits, Liens, Defaults under Loans, etc
|
21
|
|
6.
|
Allocation
of Benefits and Obligations Under Authority Agreements and
Rights of First
Refusal
|
21
|
|
7.
|
Management
of the MC Component Entities and the ROFR Component Entities:
REIT
Issues
|
32
|
|
8.
|
Management
|
33
|
|
9.
|
Reimbursements
|
35
|
|
10.
|
Formation
of Component Entities; Development of Office/Hotel
Components
|
36
|
|
11.
|
No
Contracts with Affiliates
|
57
|
|
12.
|
Use
of the Marks
|
57
|
|
13.
|
MC
Partners’ Consent Rights
|
58
|
|
14.
|
Allocation
of Administrative Fee Payable to AMX Project Operator Under
the AMX Site
Declaration
|
63
|
|
15.
|
Mediation
and Arbitration
|
63
|
|
16.
|
Brownfields
Remediation Agreement
|
64
|
|
17.
|
WMB
Annual Payment
|
65
|
|
18.
|
Cooperation;
Savings Language
|
65
|
|
19.
|
Intentionally
Omitted
|
65
|
|
20.
|
Construction
|
65
|
|
21.
|
No
Broker
|
66
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|
22.
|
Survival
|
66
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|
23.
|
No
Sale
|
66
|
|
24.
|
Governing
Law
|
66
|
|
25.
|
Notices
|
66
|
|
26.
|
Successors
and Assigns
|
68
|
|
27.
|
Amendment;
Waiver
|
68
|
|
28.
|
Binding
Effect
|
68
|
|
29.
|
No
Joint Venture
|
68
|
|
30.
|
Inapplicable
Provisions
|
68
|
|
31.
|
Representation
by Counsel; Interpretation
|
69
|
|
32.
|
Headings
|
69
|
|
33.
|
Memorandum
for Recordation
|
69
|
|
34.
|
Counterparts;
Facsimile Signatures
|
69
|
i
|
35.
|
Delays
or Omissions
|
70
|
|
36.
|
Expenses
|
70
|
|
37.
|
Entire
Agreement
|
70
|
|
38.
|
Limitation
on Liability
|
70
|
|
39.
|
Specific
Performance
|
70
|
ii
XXXX-XXXX
RIGHTS, OBLIGATIONS AND OPTION AGREEMENT
THIS
XXXX-XXXX RIGHTS, OBLIGATIONS AND OPTION AGREEMENT (this “Agreement”)
is
executed this 22nd
day of
November, 2006 (the “Execution
Date”),
by
and among (i) MEADOWLANDS DEVELOPER LIMITED PARTNERSHIP (f/k/a Meadowlands
Xxxxx/Xxxx-Xxxx Limited Partnership), a Delaware limited partnership
(“MDLP”),
(ii) MEADOWLANDS LIMITED PARTNERSHIP (f/k/a Meadowlands Xxxxx Limited
Partnership), a Delaware limited partnership (the “JV
GP”),
(iii) MEADOWLANDS DEVELOPER HOLDING CORP., a Delaware corporation
(“JV
Holding”),
(iv) MEADOWLANDS XXXX-XXXX GP, L.L.C. (f/k/a Meadowlands Xxxxx/Xxxx-Xxxx
GP, L.L.C.), a Delaware limited liability company (“GP
LLC”),
(v) XXXX-XXXX MEADOWLANDS SPECIAL L.L.C., a New Jersey limited liability
company (“Special
General Partner”),
(vi) XXXX-XXXX MEADOWLANDS ENTERTAINMENT L.L.C., a New Jersey limited
liability company (“MC
Entertainment”
and
together with Special General Partner the “MC
Partners”
and
each a “MC
Partner”),
(vii) BASEBALL MEADOWLANDS XXXXX/XXXX-XXXX LIMITED PARTNERSHIP, a Delaware
limited partnership (“Baseball
LP”),
(viii) A-B OFFICE MEADOWLANDS XXXX-XXXX LIMITED PARTNERSHIP (f/k/a A-B Office
Meadowlands Xxxx-Xxxx/Xxxxx Limited Partnership), a Delaware limited partnership
(“A-B
Office LP”),
(ix) C-D OFFICE MEADOWLANDS XXXX-XXXX LIMITED PARTNERSHIP (f/k/a C-D
Office Meadowlands Xxxx-Xxxx/Xxxxx Limited Partnership), a Delaware limited
partnership (“C-D
Office LP”),
(x) HOTEL
MEADOWLANDS XXXX-XXXX LIMITED PARTNERSHIP (f/k/a
Hotel Meadowlands Xxxx-Xxxx/Xxxxx Limited Partnership), a Delaware limited
partnership (“Hotel
LP”),
and
(xi) ERC MEADOWLANDS XXXXX/XXXX-XXXX LIMITED PARTNERSHIP, a Delaware
limited partnership (“ERC
LP”).
RECITALS
WHEREAS,
pursuant to the Certificate of Limited Partnership filed with the Office of
the
Secretary of State of Delaware on October 10, 2003, MDLP was formed as a limited
partnership pursuant to the provisions of the Delaware LP Act (as defined
below);
WHEREAS,
the
managing general partner of MDLP is the JV GP;
WHEREAS,
immediately prior to the Redemption (as defined below), the special general
partner of MDLP was Special General Partner;
WHEREAS,
immediately prior to the Redemption, the JV GP and Special General Partner
were
the sole general partners of MDLP (the “Original
General Partners”);
WHEREAS,
immediately prior to the Redemption (and the admission of JV Holding as a
partner of MDLP), MC Entertainment and the JV GP (collectively, the
“Original
Limited Partners”)
were
the sole limited partners of MDLP;
WHEREAS,
in
connection with the formation of MDLP, the JV GP and the MC Partners
entered into that certain Limited Partnership Agreement of Meadowlands
Xxxxx/Xxxx-Xxxx Limited Partnership, dated November 25, 2003 (the “Xxxxx/Xxxx-Xxxx
Agreement”)
and
effective on the Effective Date (as defined below), as amended by that certain
First Amendment
to
Limited Partnership Agreement of MDLP, dated June 30, 2005 (the “First
Amendment”
and
together with the Xxxxx/Xxxx-Xxxx Agreement the “Original
Agreement”),
a copy of which is annexed hereto as Exhibit
A;
WHEREAS,
prior
to the date hereof, MDLP entered into: (i) that certain Redevelopment Agreement,
dated as of December 3, 2003, with the New Jersey Sports and Exposition
Authority (the “NJSEA”)
pursuant to which, among other things, MDLP is entitled, on the terms and
conditions set forth therein, to improve and redevelop the Meadowlands Complex
(as defined below) with an entertainment, sports, recreation and retail complex,
together with Office/Hotel Components (“Meadowlands
Xanadu”);
and
(ii) the following amendments to the Redevelopment Agreement: (a) that
certain First Amendment to Redevelopment Agreement, dated as of October 5,
2004,
(b) that certain Second Amendment to Redevelopment Agreement, dated as of March
15, 2005, (c) that certain Third Amendment to Redevelopment Agreement, dated
as
of May 23, 2005 to be effective as of March 30, 2005, and (d) that certain
Fourth Amendment to Redevelopment Agreement, dated as of June 30, 2005 (such
Redevelopment Agreement, together with such amendments, being collectively
referred to herein as the “Redevelopment
Agreement”);
WHEREAS,
the
real property that is subject to the Redevelopment Agreement and upon which
MDLP
has commenced construction of Meadowlands Xanadu is referred to in the
Redevelopment Agreement and herein as the “Project
Site”;
WHEREAS,
prior
to the date hereof, MDLP caused to be formed, the following five Delaware
limited partnerships to acquire tenant leasehold interests in the five
components of the Project Site: (i) ERC LP, (ii) Baseball LP, (iii) A-B Office
LP, (iv) C-D Office LP, and (v) Hotel LP (being individually referred to herein
as a “Component
Entity”
and
collectively as the “Component
Entities”);
WHEREAS,
prior
to the date hereof, MDLP caused GP LLC to be formed and to be the general
partner of each of the Component Entities;
WHEREAS,
the
Redevelopment Agreement contemplates that certain agreements were to be
executed, and certain funds were to be paid (including the Development Rights
Fee, as defined in the Redevelopment Agreement), and certain actions were to
be
taken, upon the occurrence of the Development Rights Fee Funding Date (as
defined in the Redevelopment Agreement);
WHEREAS,
the
Development Rights Fee Funding Date occurred on June 30, 2005 in connection
with
the closing of the transactions contemplated in the Redevelopment Agreement
that
were to occur on the Development Rights Fee Funding Date (such closing is
commonly referred to by the NJSEA and MDLP, and referred to herein, as the
“Financial
Closing”);
WHEREAS,
in
connection with the Financial Closing, the following documents (in addition
to
certain other documents not herein described), each dated as of June 30, 2005,
were executed and delivered by the Original General Partners jointly, either
on
behalf of MDLP or on behalf of GP LLC and/or one or more Component Entities,
as
applicable: (i) Ground Lease
2
(“ERC
Ground Lease”)
by and
between the NJSEA and ERC LP pertaining to the portion of the Project Site
commonly known as the Entertainment/Retail Site (the “ERC
Site”);
(ii)
Ground Lease (“Baseball
Ground Lease”)
by and
between the NJSEA and Baseball LP for the portion of the Project Site commonly
known as the Baseball Site (the “Baseball
Site”);
(iii)
Ground Lease (“Hotel
Ground Lease”)
by and
between the NJSEA and Hotel LP for the portion of the Project Site commonly
known as the Hotel Site (“Hotel
Site”);
(iv)
Ground Lease (“A-B
Ground Lease”)
by and
between the NJSEA and A-B Office LP for the portion of the Project Site commonly
known as the A-B Office Site (“A-B
Office Site”);
(v)
Ground Lease (“C-D
Ground Lease”)
by and
between the NJSEA and C-D Office LP for the portion of the Project Site commonly
know as the C-D Office Site (“C-D
Office Site”);
(vi)
five Assignment and Assumption Agreements (referred to in the Redevelopment
Agreement as “Component
Agreements”)
(the
“Component
Agreements”)
wherein MDLP assigned certain of its rights and obligations under the
Redevelopment Agreement to the Component Entities, one such Assignment and
Assumption Agreement for each of the ERC Site, the Hotel Site, the Baseball
Site, the A-B Office Site and the C-D Office Site; and (vii) five memoranda
of
lease, one for each of the ERC Ground Lease, the Baseball Ground Lease, the
Hotel Ground Lease, the A-B Ground Lease and the C-D Ground Lease;
WHEREAS,
the
Development Rights Fee, an amount equal to $160,000,000, is deemed under the
Redevelopment Agreement and the Ground Leases to constitute prepaid rent under
all of the Ground Leases with respect to the first fifteen (15) years of each
of
the Ground Leases;
WHEREAS,
the
Ground Leases allocate the amount of the Development Rights Fee to prepaid
rent
under the Ground Leases for the first fifteen (15) years of the Ground Leases,
and treat the payment of such amounts as made by the corresponding Component
Entities, as set forth on Exhibit
B,
which
allocations described therein are referred to herein as the “Prepaid
Rent Allocations”;
WHEREAS,
at the
time of the Financial Closing, notwithstanding that the Development Rights
Fee
was paid by MDLP to the NJSEA, it was the intent of the Original Limited
Partners that the aggregate amount of the Development Rights Fee be allocated
to
prepaid rent between each of the Ground Leases in the amounts of the Prepaid
Rent Allocations, and treated as the payment of such amounts by the
corresponding Component Entities;
WHEREAS,
at the
time of the Financial Closing, notwithstanding that the Development Rights
Fee
was paid directly by MDLP to the NJSEA, it was the intent of the Original
Limited Partners that the following be deemed to have occurred immediately
prior
to such payment of the Development Rights Fee to the
NJSEA: (i) on June 30, 2005, MDLP contributed, as capital
contributions to the Component Entities and GP LLC, cash in an aggregate amount
equal to the Development Rights Fee (the “Aggregate
Capital Contributions”),
with
99.99% of such Aggregate Capital Contributions being made directly to the
Component Entities (such capital contributions, the “Direct
Capital Contributions”)
and
0.01% of such Aggregate Capital Contributions being made to GP LLC (such
capital contributions, the “Indirect
Capital Contributions”),
(ii) GP LLC, on June 30, 2005 and immediately after MDLP’s
contribution of the Indirect Capital Contributions to GP LLC, contributed,
as
capital contributions to the Component Entities, cash in an aggregate amount
equal to the Indirect Capital Contributions
3
(such
capital contributions, the “GP
Capital Contributions”),
(iii) the portions of the Direct Capital Contributions and the GP Capital
Contributions were allocated to each Component Entity on June 30, 2005 based
upon the allocation of the Development Rights Fee to each Ground Lease as set
forth on Exhibit
B,
and
(iv) each of the Component Entities paid a portion of the Development
Rights Fee to the NJSEA in the allocated amount set forth on Exhibit
B;
WHEREAS,
immediately prior to the Redemption, JV Holding was admitted to MDLP as a
partner and, in connection therewith, JV Holding executed that certain
Instrument of Accession, dated as of the date hereof, whereby JV Holding agreed
to the terms and conditions of the Original Agreement;
WHEREAS,
simultaneously herewith, and immediately following the admission of JV Holding
to MDLP, MDLP fully and completely redeemed all of the Partnership Interests
of
the MC Partners (the “Redemption”)
pursuant to that certain Redemption Agreement by and among MDLP, Special General
Partner and MC Entertainment, dated November 22, 2006 (the “Redemption
Agreement”)
as
more specifically described below and in the Redemption Agreement, and
consequently, the MC Partners ceased to be partners of MDLP for all
purposes;
WHEREAS,
on the
date of the Redemption, MDLP (i) distributed to the MC Partners in exchange
for
the complete and collective redemption of the Redeemed Interests, (A) an
aggregate amount of $22,500,000 to the MC Partners, (B) special, non-economic
general partnership interests in each of the MC Component Entities (as defined
below) (which partnership interests are being distributed solely to Special
General Partner) and (C) property rights with respect to the MC Component
Entities and the ROFR Component Entities (as defined below) set forth in this
Agreement, and (ii) delivered this Agreement;
WHEREAS,
on the
date of the Redemption, the JV GP is delivering to MC Entertainment a promissory
note (the “MC
Note”)
in the
amount of $2,500,000 (the “Principal
Amount”),
which
MC Note shall be due and payable fifteen (15) days after the MC Partners’ first
Take Down (as defined below) of either an Office Component (as defined below)
or
the Hotel Component (as defined below) (the “Maturity
Date”);
WHEREAS,
immediately following the Redemption, the JV GP and JV Holding entered into
that
certain Amended and Restated Agreement of Limited Partnership of Meadowlands
Developer Limited Partnership, dated as of the date hereof;
WHEREAS,
simultaneously herewith, the original partners of the JV GP undertook a
restructuring of the JV GP (the “Restructuring”)
pursuant to and in accordance with that certain Transaction Agreement, dated
as
of the date hereof, by and among the JV GP, its partners, and other signatories
thereto;
WHEREAS,
as soon
as practicable following the Redemption and in connection with the
Restructuring, GP LLC will withdraw as the general partner of Baseball LP and
shall be the general partner only of the A-B Office LP, C-D Office LP and Hotel
LP;
4
WHEREAS,
as soon
as practicable following the Redemption, GP LLC shall form 16W ERC GP, LLC,
a
Delaware limited liability company (“ERC
16W GP”)
and,
immediately thereafter, ERC LP and ERC 16W GP shall form ERC 16W Limited
Partnership (“New
ERC LP”);
WHEREAS,
as soon
as practicable following the formation of New ERC LP, MDLP shall, and shall
cause ERC LP to, transfer any and all assets and liabilities related to the
Entertainment/Retail Component (as defined in the Redevelopment Agreement),
including the ERC Ground Lease, to New ERC LP and, immediately thereafter,
ERC
LP shall dissolve (the “ERC
Restructuring”);
WHEREAS,
following the ERC Restructuring, MDLP shall continue to indirectly control
and
own New ERC LP;
WHEREAS,
on or
about the ERC Restructuring, New ERC LP and its successors or assigns shall
execute an instrument of accession (the “Instrument
of Accession”)
to
this Agreement in the form annexed hereto as Exhibit
C,
at
which time New ERC LP and its successors or assigns shall become a party to
this
Agreement and shall assume, and agree to be bound by, all of the rights and
obligations of ERC LP set forth in this Agreement and/or the Transaction
Documents;
WHEREAS,
in
connection with the foregoing transactions, the following actions were or will
be effected: (i) the name of the Original Partnership has been changed to
“Meadowlands Developer Limited Partnership”; (ii) the name of JV GP has been
changed to “Meadowlands Limited Partnership”; (iii) the name of GP LLC has been
changed to “Meadowlands Xxxx-Xxxx GP, L.L.C.”; (iv) the name of Baseball LP will
be changed to “Baseball Meadowlands Xxxxx/Xxxx-Xxxx Limited Partnership”; (v)
the name of A-B Office LP has been changed to “A-B Office Meadowlands Xxxx-Xxxx
Limited Partnership”; (vi) the name of C-D Office LP has been changed to “C-D
Office Meadowlands Xxxx-Xxxx Limited Partnership”; and (vii) the name of Hotel
LP has been changed to “Hotel Meadowlands Xxxx-Xxxx Limited
Partnership”;
WHEREAS,
in
connection with the Restructuring, that certain Second Amendment to Declaration
of Covenants and Restrictions (Arena/Meadowlands/Xanadu Site), dated November
22, 2006 (the “Second
Amendment to the Declaration”),
was
entered into by and among NJSEA, MDLP, ERC LP, A-B Office LP, C-D Office LP,
Hotel LP and Baseball LP;
WHEREAS,
in
connection with the Restructuring, that certain Assignment, Assumption and
Cooperation Agreement, dated November 22, 2006 (the “Assignment,
Assumption and Cooperation Agreement”),
was
entered into by and among NJSEA, MDLP, Baseball LP, A-B Office LP, C-D
Office LP, Hotel LP and ERC LP which provides for the assignment of certain
licenses and permits to ERC LP and the assumption of certain rights and
obligations by ERC LP with respect to such licenses and permits and certain
other matters relating thereto; and
WHEREAS,
in
connection with the foregoing, MDLP, the JV GP, JV Holding, GP LLC, Special
General Partner, MC Entertainment, Baseball LP, A-B Office LP, C-D Office LP,
Hotel LP and ERC LP desire to enter into this Agreement to set forth their
respective rights and
5
obligations
with respect to (i) certain of the Component Entities, (ii) the Redevelopment
Agreement, (iii) the development, ownership and operation of the Development
Land and the Project that may be constructed thereon and (iv) the Transaction
Documents (as defined below).
NOW,
THEREFORE,
in
consideration of the foregoing, and of the representations and warranties and
of
the covenants and agreements hereinafter set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
1. Incorporation
of Recitals
.
The
foregoing Recitals to this Agreement are hereby incorporated in and made a
part
of this Agreement to the same extent as if set forth in full
herein.
2. Certain
Definitions
.
Capitalized terms used herein shall have the respective meanings set forth
below
for all purposes of this Agreement (such definitions to be equally applicable
to
both the singular and the plural forms of the terms defined). Capitalized terms
not otherwise defined herein shall have the meanings ascribed to them in the
Original Agreement with appropriate adjustments to the names of the applicable
parties.
“A-B
Ground Lease”
has
the
meaning specified in the Recitals.
“A-B
Office LP”
has
the
meaning specified in the first paragraph of this Agreement.
“A-B
Office Site”
has
the
meaning specified in the Recitals.
“Actual
Office/Hotel Value”
has
the
meaning specified in Section 10.6.7.2.
“Affiliate(s)”
shall
mean, with respect to any Person, (a) a Person who, directly or indirectly,
controls, is under common control with, or is controlled by, that Person, (b)
a
Person who directly or indirectly owns twenty-five percent (25%) or more of
the
issued and outstanding securities or other ownership interests (whether voting
or non-voting) of that Person, (c) any officer, director, trustee, manager,
managing member, general partner or beneficiary of such Person, (d) any spouse,
parent, sibling or lineal descendant of any Person described in clause (b)
and
(c) above, and (e) any trust for the benefit of any Person described in clauses
(b) through (d) above or for any spouse, issue or lineal descendant of any
Person described in clauses (b) through (d) above. For purposes of this
definition, “control” (including, with correlative meaning, the terms
“controlled by” and “under common control with”), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or
otherwise.
“Affordable
Housing Contributions”
means
those certain financial obligations of MDLP to provide a contribution to the
Boroughs of Cartlstadt and East Xxxxxxxxxx for affordable housing units
specified in the Hearing Officer’s Report at Section II.C.12.e.
6
“Aggregate
Capital Contributions”
has
the
meaning specified in the Recitals.
“Agreement”
has
the
meaning specified in the first paragraph of this Agreement.
“Allocated
Annual Payments”
has
the
meaning specified in Section 10.4.1.(a).
“Alternate
MC Representative”
has
the
meaning specified in Section 8.1.1.
“Alternate
MDLP Representative”
has
the
meaning specified in Section 8.1.1.
“AMX
Project Operator”
has
the
meaning specified in Section 14.
“AMX
Site Declaration”
means
that certain Declaration of Covenants and Restrictions (Arena/Meadowlands/Xanadu
Site), dated June 30, 2005, and recorded July 8, 2005 by the Bergen County
Clerk
Deed Book 8835, page 1, as supplemented by that certain Corrective Declaration
of Covenants and Restrictions (Arena/Meadowlands/Xanadu Site) for the sole
purpose of identifying certain of the subject parcels by metes and bounds legal
descriptions in addition to the legal descriptions referencing lots and blocks
in the Plat of Subdivision (the “Corrective
Declaration”).
On
July 29, 2005, the Clerk recorded the Corrective Declaration.
“Annual
Payments”
has
the
meaning specified in Section 10.4.1(a).
“Applicable
Component”
has
the
meaning specified in Section 10.2.1.
“Approved
by the Parties”
or
“Approval
of the Parties”
shall
mean approval in writing by the JV GP or MDLP, as relevant, and the MC Partners,
acting through their duly authorized representatives or if not through such
duly
authorized representatives, as agreed upon in writing by the JV GP or MDLP,
as
relevant, and the MC Partners. Unless otherwise expressly provided herein to
the
contrary, the JV GP, MDLP and the MC Partners shall not unreasonably
withhold, delay or condition such approval.
“Approved
Master Plan”
has
the
meaning specified in the Redevelopment Agreement.
“Arbitrators”
has
the
meaning specified in Section 15.2.
“Arena”
has
the
meaning specified in the Redevelopment Agreement.
“Arena
ROFR”
has
the
meaning specified in Section 6.1.2
“Arena
ROFR Agreement”
shall
mean that certain Right of First Refusal Agreement (Arena Site), dated June
30,
2005, by and between NJSEA and MDLP, as amended or modified from time to
time.
“Assignment,
Assumption and Cooperation Agreement”
has
the
meaning specified in the Recitals.
“Authority
Agreement(s)”
has
the
meaning specified in Section 13.1.6.
7
“Bankruptcy”
shall
mean, as to any Person:
(i) its
filing a petition commencing a case as a debtor under the Federal Bankruptcy
Code or a similar provision of state law (collectively, as now or in the future
amended, the “Bankruptcy
Code”);
(ii) the
commencement of an involuntary case against it under the Bankruptcy Code and
the
earlier of (A) the entry of an order for relief, or (B) the
appointment of an interim trustee to take possession of its estate and/or to
operate any of its business;
(iii) its
making a general assignment for the benefit of its creditors;
(iv) its
consenting to the appointment of a receiver for all or substantially all of
its
property;
(v) the
entry
of a court order appointing a receiver or trustee for all or substantially
all
of its property; or
(vi) the
assumption of custody or sequestration by a court of competent jurisdiction
of
all or substantially all of its property.
“Bankruptcy
Code”
has
the
meaning specified in this Section 2 in the definition “Bankruptcy”.
“Baseball
Ground Lease”
has
the
meaning specified in the Recitals.
“Baseball
LP”
has
the
meaning specified in the first paragraph of this Agreement.
“Baseball
Site”
has
the
meaning specified in the Recitals.
“Blue
StadCo. Payment”
means
that certain lump sum payment equal to $15 million set forth in Section 5(a)
of
the Giants/Jets Settlement Agreement.
“Brownfields
Agreement”
has
the
meaning specified in Section 16.
“Business
Day”
or
“business
day”
means
any day other than a Saturday, Sunday or a day on which banks located in New
York, New York shall be authorized or required by Law to close.
“Capital
Ratio”
has
the
meaning specified in Section 10.6.5.
“Capital
Ratio Determination Date”
has
the
meaning specified in Section 10.6.6.
“C-D
Ground Lease”
has
the
meaning specified in the Recitals.
“C-D
Office LP”
has
the
meaning specified in the first paragraph of this Agreement.
“C-D
Office Site”
has
the
meaning specified in the Recitals.
8
“Code”
shall
mean the Internal Revenue Code of 1986, as amended from time to
time.
“Completion”
has
the
meaning specified in the Redevelopment Agreement.
“Component”
has
the
meaning specified in the Redevelopment Agreement.
“Component
Agreements”
has
the
meaning specified in the Recitals.
“Component
Entity”
and
“Component
Entities”
have
the meaning specified in the Recitals.
“Component
Lease”
has
the
meaning specified in the Redevelopment Agreement.
“Component
Site”
has
the
meaning specified in Section 18.
“Conceptual
Site Plan”
refers
to the conceptual site plan attached to the Redevelopment Agreement as Schedule
6.1(b).
“Conservancy
Trust Agreement”
shall
mean that certain Conservancy Trust Agreement, dated as of October 5, 2004,
by
and between MDLP and the Meadowlands Conservation Trust.
“Consumer
Price Index”
or
“CPI”
shall
mean the index presently known as the “United States Bureau of Labor Statistics,
Consumer Price Index for Urban Wage Earners and Clerical Workers, all items
for
the New York, New Jersey area, SMSA (C.P.I.W.) (Base Period=1982-84=100) issued
by the U.S. Department of Labor Bureau of Labor Statistics (or any comparable
successor index issued by the U.S. Department of Labor Bureau of Labor
Statistics). If such index shall be discontinued or revised without substitution
of a comparable successor index, the substitute index or formula to be used
in
instances where “Consumer Price Index” is used shall be Approved by the
Parties.
“Corrective
Declaration”
has
the
meaning specified in this Section 2 in the definition of “AMX Site
Declaration”.
“CPI
Adjustment”
has
the
meaning specified in Section 10.5.1.
“Delaware
LP Act”
shall
mean the State of Delaware Revised Uniform Limited Partnership Act, §§ 17-101 to
17-1109 of the Delaware Code Annotated, Title 6, as the same may be amended
from
time to time.
“Developer”
has
the
meaning specified in Section 4.
“Development
Acceleration Notice”
has
the
meaning specified in Section 10.3.1.
“Development
Land”
has
the
meaning specified in the Original Agreement.
“Development
Rights Fee”
has
the
meaning specified in the Recitals.
9
“Development
Rights Fee Funding Date”
has
the
meaning specified in the Recitals.
“Direct
Capital Contributions”
has
the
meaning specified in the Recitals.
“Disputes”
has
the
meaning specified in Section 15.1.
“Effective
Date”
shall
mean December 3, 2003.
“Entertainment/Retail
Component”
has
the
meaning specified in the Recitals.
“ERC
Restructuring”
has
the
meaning specified in the Recitals.
“ERC
16W GP”
has
the
meaning specified in the Recitals.
“ERC
Ground Lease”
has
the
meaning specified in the Recitals.
“ERC
LP”
has
the
meaning specified in the first paragraph of this Agreement; provided,
however,
immediately following the consummation of the ERC Restructuring and the
execution of the Instrument of Accession, such term shall mean New ERC LP,
its
successors or assigns.
“ERC
Site”
has
the
meaning specified in the Recitals.
“Exclusive
Office/Hotel Infrastructure Improvement Costs”
has
the
meaning specified in Section 10.4.1(f).
“Exclusive
Negotiation Period”
has
the
meaning specified in Section 6.1.2.2.
“Execution
Date”
has
the
meaning specified in the first paragraph of this Agreement.
“Existing
Litigation”
shall
mean the litigation identified on Exhibit
D
annexed
hereto.
“Financial
Closing”
has
the
meaning specified in the Recitals.
“First
Amendment”
has
the
meaning specified in the Recitals.
“First
Component”
has
the
meaning specified in Section 10.2(i).
“Fiscal
Year”
shall
mean the twelve month period beginning on January 1 and ending on December
31 of
each calendar year; provided, that the last Fiscal Year shall be the period
beginning on January 1 of the calendar year in which the final liquidation
and
termination of applicable MC Component Entity is completed and ending on the
date such final liquidation and termination is completed (to the extent any
computation or other provision hereof provides for an action to be taken on
a
Fiscal Year basis, an appropriate proration or other adjustment shall be made
in
respect of the first Fiscal Year or final Fiscal Year if the applicable Fiscal
Year is greater or less than a full calendar year period to reflect such
fact).
“Four
Year Office/Hotel Development Option”
has
the
meaning specified in Section 10.2(i).
10
“Gaming
Facility”
has
the
meaning specified in Section 6.1.2.3.
“Giants/Jets
Settlement Agreement”
means
the Agreement, dated as of November 22, 2006, by and among Giants Stadium LLC,
the New York Football Giants, Inc., Jets Stadium Development LLC, New
Meadowlands Stadium Company, LLC New York Jets, LLC, NJSEA and other signatories
thereto.
“GP
Capital Contributions”
has
the
meaning specified in the Recitals.
“GP
LLC”
has
the
meaning specified in the first paragraph of this Agreement.
“Governmental
Authority”
has
the
meaning specified in Section 8.3.2.
“Grand
Opening Date”
shall
mean: provided, that Completion of the Entertainment/Retail Component has
occurred, the earlier of (i) the date on which the Entertainment/Retail
Component opens for business as publicly announced in accordance with the ERC
Ground Lease, on behalf of MDLP, or (ii) the date by which at least fifty
percent (50%) of the gross leasable area of specialty store space (also known
as
small shop space) in the Entertainment/Retail Component is open for business
to
the public.
“Ground
Lease”
and
“Ground
Leases”
shall
mean individually or collectively, at the case may be, the ERC Ground Lease,
the
Baseball Ground Lease, the Hotel Ground Lease, the A-B Ground Lease and the
C-D
Ground Lease.
“Hearing
Officer’s Report”
shall
mean that certain Hearing Officer’s Report relating to the Project issued by the
New Jersey Meadowlands Commission and the New Jersey Department of Environmental
Protection on August 19, 2004.
“Hotel
Component”
has
the
meaning specified in the Redevelopment Agreement.
“Hotel
Ground Lease”
has
the
meaning specified in the Recitals.
“Hotel
Land”
has
the
meaning specified in Section 10.5.1.
“Hotel
LP”
has
the
meaning specified in the first paragraph of this Agreement.
“Hotel
ROFR”
has
the
meaning specified in Section 6.1.2.
“Hotel
ROFR Agreement”
shall
mean that certain Right of First Refusal Agreement (for a Hotel at Meadowlands
Racetrack), dated June 30, 2005, by and between NJSEA and MDLP, as amended
or
modified from time to time.
“Hotel
Site”
has
the
meaning specified in the Recitals.
“Independent
Negotiation”
has
the
meaning specified in Section 6.1.2.2.2.
11
“Indirect
Capital Contributions”
has
the
meaning specified in the Recitals.
“Ineligible
Party”
has
the
meaning specified in Section 6.1.2.3.
“Infrastructure
Improvements”
shall
mean any improvement or utility necessitated or required by the implementation
of the Project, which is located on or off the Project Site including, but
not
limited to, sidewalk and roadway construction, electric power transmission
lines, sewer transmission conduits or pipes, water lines or pipes, storm sewers,
telephone transmission lines, television cable lines and other similar
utilities, including all improvements contemplated under that certain
Construction and Contribution Agreement for Meadowlands Regional Transportation
Improvements, dated November 22, 2006, by and among the New Jersey Department
of
Transportation, the NJSEA and the Meadowlands Xxxxx/Xxxx-Xxxx Limited
Partnership (in each case not including Traffic and Infrastructure
Improvements).
“Infrastructure
Improvement Costs”
shall
mean any and all costs, fees and expenses incurred in connection with
Infrastructure Improvements.
“Infrastructure
Improvement Costs and Program Costs”
shall
mean, collectively, (i) Infrastructure Improvement Costs, (ii) Program Costs,
(iii) Traffic and Infrastructure Costs and (iv) any and all sewer connection
and
related fees in connection with the Project. Notwithstanding the foregoing,
the
term “Infrastructure Improvement Costs and Program Costs” shall in no event
exceed $160,000,000.
“Infrastructure
Loan”
shall
mean a non-interest bearing loan from MDLP to a Office/Hotel Component Owner
for
a term of seven (7) years and, if not refinanced with Public Debt within the
seven (7) year term, such Infrastructure Loan would convert into equity interest
of the Office/Hotel Component Owner if there remains unpaid and outstanding
any
principal amount on such convertible loan pursuant to and in accordance with
the
terms and conditions of the Infrastructure Loan documentation.
“Infrastructure
Improvement Notice”
has
the
meaning specified in Section 10.9.1.
“Infrastructure
Improvement Reply Notice”
has
the
meaning specified in Section 10.9.1.
“Initial
ROFR Election Date”
has
the
meaning specified in Section 6.1.2.
“Initial
ROFR Election Period”
has
the
meaning specified in Section 6.1.2.
“Instrument
of Accession”
has
the
meaning specified in the Recitals.
“Joint
Venture”
has
the
meaning specified in Section 10.7.
“JV
GP”
has
the
meaning specified in the first paragraph of this Agreement.
“JV
Holding”
has
the
meaning specified in the first paragraph of this Agreement.
12
“Laws”
shall
mean federal, state and local statutes, case law, rules, regulations,
ordinances, codes and the like which are in full force and effect from time
to
time and which affect the Project or the ownership or operation
thereof.
“License
Agreement”
shall
mean that certain License Agreement, dated on or about the date hereof, by
and
among MDLP, Baseball LP, A-B Office LP, C-D Office LP, Hotel LP and New ERC
LP.
“Loan
Commitment”
has
the
meaning specified in Section 10.3.1(b).
“Loan
Commitment Notice”
has
the
meaning specified in Section 10.3.1(b).
“Xxxx-Xxxx
Rights”
has
the
meaning specified in Section 3.1.
“Main
Street Program Payments”
means
those certain financial obligations of MDLP to provide contributions to
establish Main Street New Jersey Programs in the Meadowlands specified in the
Hearing Officer’s Report at Section II.C.12.d.
“Major
Decision”
has
the
meaning specified in Section 13.
“Major
Modification”
has
the
meaning specified in the Redevelopment Agreement.
“Market
Development Notice”
has
the
meaning specified in Section 10.3.1(a).
“Marks”
has
the
meaning specified in the License Agreement.
“Master
Plan”
has
the
meaning specified in the Redevelopment Agreement.
“Maturity
Date”
has
the
meaning specified in the Recitals.
“MC
Component Entity”
and
“MC
Component Entities”
have
the meanings specified in Section 3.1.
“MC
Entertainment”
has
the
meaning specified in the first paragraph of this Agreement.
“MC
Note”
has
the
meaning specified in the Recitals.
“MC
Partner”
and
“MC
Partners”
have
the meaning specified in the first paragraph of this Agreement.
“MC
Partners’ Account Credit”
has
the
meaning specified in Section 10.9.1.
“MCRC”
has
the
meaning specified in Section 7.2.
“MC
Representative”
has
the
meaning specified in Section 8.1.1.
“MDLP”
has
the
meaning specified in the first paragraph of this Agreement.
13
“MDLP
Representative”
has
the
meaning specified in Section 8.1.1.
“Meadowlands
Complex”
has
the
meaning specified in the Redevelopment Agreement.
“Meadowlands
Racetrack”
has
the
meaning specified in the Redevelopment Agreement.
“Meadowlands
Xanadu”
has
the
meaning specified in the Recitals.
“Memorandum”
has
the
meaning specified in Section 33(a).
“Xxxxx/Xxxx-Xxxx
Agreement”
has
the
meaning specified in the Recitals.
“Net
Project Costs”
has
the
meaning specified in Section 10.6.6(f).
“New
ERC LP”
has
the
meaning specified in the Recitals.
“New
LP”
has
the
meaning specified in Section 10.7.3.2.
“New
Year”
has
the
meaning specified in Section 10.5.1.
“NJMC
Contributions”
means
those certain financial obligations of MDLP relating to environmental and
education transportation costs to the Meadowlands Environment Center specified
in Hearing Officer’s Report at Section II.C16.a.
“NJSEA”
has
the
meaning specified in the Recitals.
“NJSEA
Profit Participation”
means
the Authority Profit Participation (as defined in the Redevelopment Agreement)
required to be paid to the NJSEA under the Redevelopment Agreement.
“Non-Electing
Party”
and
“Non-Electing
Parties”
have
the meaning specified in Section 6.1.2.2.1.
“Non-Participating
Party”
has
the
meaning specified in Section 6.1.2.2.2(a).
“Offer
Notice”
has
the
meaning specified in the applicable ROFR Agreement.
“Office
Component”
has
the
meaning specified in the Redevelopment Agreement.
“Office/Hotel
Component”
has
the
meaning specified in Section 10.1.
“Office/Hotel
Component LP Agreement”
has
the
meaning specified in Section 10.6.
“Office/Hotel
Component Owner”
and
“Office/Hotel
Component Owners”
have
the meaning specified in Section 3.1 and shall also include a Sub-Component
Owner, as applicable.
14
“Office/Hotel
Development Election Notice”
has
the
meaning specified in Section 10.2.1.
“Office/Hotel
Development Option”
has
the
meaning specified in Section 10.2.
“Office/Hotel
Election Notice Date”
has
the
meaning specified in Section 10.2.1.
“Office/Hotel
Funding Default”
has
the
meaning specified in Section 10.6.7.3.
“Office/Hotel
Funding Default Notice”
has
the
meaning specified in Section 10.6.7.3.
“Office/Hotel
Land”
has
the
meaning specified in Section 10.5.
“Office/Hotel
Value”
has
the
meaning specified in Section 10.5.
“Office
Land”
has
the
meaning specified in Section 10.5.1.
“Opt
Out Election”
has
the
meaning specified in Section 10.7.3.
“Original
Agreement”
has
the
meaning specified in the Recitals.
“Original
General Partners”
has
the
meaning specified in the Recitals.
“Original
Limited Partners”
has
the
meaning specified in the Recitals.
“Partnership
Election”
has
the
meaning specified in Section 10.7.3.
“Partnership
Interest”
shall
mean the entire ownership interest (which may be expressed as a percentage)
of a
partner in a partnership at any particular time, including the right of such
partner to any and all benefits to which a partner may be entitled pursuant
to
the partnership agreement of such partnership and under the Delaware LP Act,
together with all obligations of such partner to comply with the terms and
provisions of the partnership agreement of such partnership and the Delaware
LP
Act.
“Party
Hereto Affiliates”
has
the
meaning specified in Section 38.
“Person”
shall
mean an individual, partnership, firm, corporation, trust, estate,
unincorporated association, limited liability company, joint stock company
or
other entity, association, firm or company.
“Phase”
has
the
meaning specified in the Redevelopment Agreement.
“Phase
III”
has
the
meaning specified in the Redevelopment Agreement.
“Phase
IV”
has
the
meaning specified in the Redevelopment Agreement.
“PILOT
Payments”
shall
mean the “Developer PILOT Payments” as specified in the Redevelopment
Agreement.
15
“Plans
and Specifications”
shall
mean, with respect to a particular Hotel Component or Office Component, all
blueprints, schematic renderings, architect’s drawings, specifications, written
descriptions and similar items and all related drawings, plans, and data (and
all supplements and amendments thereto) relating to the design, construction,
equipping, and furnishing of such particular Component.
“Prepaid
Rent Allocations”
has
the
meaning specified in the Recitals.
“Principal
Amount”
has
the
meaning specified in the Recitals.
“Program
Costs”
shall
mean (i) Affordable Housing Contributions, (ii) Blue StadCo. Payment, (iii)
Main
Street Program Payments and (iv) NJMC Contributions.
“Project”
has
the
meaning specified in the Redevelopment Agreement.
“Project
Site”
has
the
meaning specified in the Recitals.
“Public
Debt”
has
the
meaning specified in Section 10.4.1.(e).
“Redemption”
has
the
meaning specified in the Recitals.
“Redemption
Agreement”
has
the
meaning specified in the Recitals.
“Redevelopment
Agreement”
has
the
meaning specified in the Recitals.
“REIT”
shall
mean a real estate investment trust within the meaning of Section 856 of the
Code and subject to federal income taxation under Sections 856 through 859
of
the Code.
“Reoffer
Notice”
has
the
meaning specified in Section 10.7.2.
“Reoffer
Acceptance Notice”
has
the
meaning specified in Section 10.7.2.
“Required
Equity”
shall
mean all amounts required to be paid to complete the construction of the project
undertaken by the Office/Hotel Component Owner or ROFR Component Entity as
set
forth in the agreed upon development budget for such project.
“Restructuring”
has
the
meaning specified in the Recitals.
“Right
of First Refusal”
and
“ROFR”
have
the meaning specified in Section 6.1.2.
“ROFR
Agreements”
shall
mean the Arena ROFR Agreement and the Hotel ROFR Agreement.
“ROFR
Component Entity”
and
“ROFR
Component Entities”
have
the meaning specified in Section 6.1.2.1.
“ROFR
Component Entity Agreement”
has
the
meaning specified in Section 6.1.2.1.
16
“ROFR
Contract Notice”
has
the
meaning specified in Section 6.1.2.2.1(a).
“ROFR
Electing Party”
has
the
meaning specified in Section 6.1.2.2.
“ROFR
Electing Party Notice”
has
the
meaning specified in Section 6.1.2.2.
“ROFR
Participation Notice”
has
the
meaning specified in Section 6.1.2.2.1(a).
“Second
Amendment to the Declaration”
has
the
meaning specified in the Recitals.
“Second
Component”
has
the
meaning specified in Section 10.2(ii).
“Six
Year Office/Hotel Development Option”
has
the
meaning specified in Section 10.2(ii).
“Special
General Partner”
has
the
meaning specified in the first paragraph of this Agreement.
“SGP
Super-Priority Capital”
has
the
meaning specified in Section 10.9.3.(b)(ii).
“Staged
Development”
has
the
meaning specified in Section 10.1.1.
“Sub-Allocated
Annual Payments”
has
the
meaning specified in Section 10.4.1.(c).
“Sub-Allocated
Infrastructure Improvement Payments”
has
the
meaning specified in Section 10.4.1.(e).
“Sub-Allocated
Prepaid Annual Payment”
has
the
meaning specified in Section 10.5.2.
“Sub-Allocation
Percentages”
has
the
meaning specified in Section 10.4.1.(b).
“Sub-Component
Owner”
has
the
meaning specified in Section 10.1.2.
“Successful
Bid Notice”
has
the
meaning specified in Section 6.1.2.2.2(a).
“Successful
Bid Participation Notice”
has
the
meaning specified in Section 6.1.2.2.2(a).
“Successful
Bid Party”
has
the
meaning specified in Section 6.1.2.2.2(a).
“Successful
Bid Reoffer Notice”
has
the
meaning specified in Section 6.1.2.2.2(c)(i).
“Successful
Bid Reoffer Participation Notice”
has
the
meaning specified in Section 6.1.2.2.2(c)(i).
“Super-Priority
Capital”
has
the
meaning specified in Section 10.6.6(b)(ii).
“Take
Down”
shall
mean, with respect to the MC Partners, the acquisition of a partnership interest
in one or more of the Office/Hotel Component Owners, as provided in
17
Section
10 hereof; and, with respect to an Office/Hotel Component Owner, the acquisition
and/or construction of one or more of the Office/Hotel Components, phase or
sub-Component thereof as provided in Section 10 hereof.
“Third
Party Discussions”
has
the
meaning specified in Section 8.3.1.
“Traffic
and Infrastructure Costs”
shall
mean all costs, fees and expenses related to the Traffic and Infrastructure
Improvements.
“Traffic
and Infrastructure Improvements”
shall
mean any and all improvements to roadways and sidewalks, installation of traffic
signals and signage, relocation of utilities and other improvements, located
on
and off the Project Site and such other improvements implemented, for the
purpose of improving vehicular and pedestrian access to the Project
Site.
“Transaction
Documents”
shall
mean the Redevelopment Agreement, the Project Operating Agreement (as defined
in
the Redevelopment Agreement), the Construction Management Agreement (as defined
in the Redevelopment Agreement), the Declaration (as defined in the
Redevelopment Agreement), the Project Labor Agreement (as defined in the
Redevelopment Agreement), the Ground Lease, the Right of Entry Agreement (as
defined in the Redevelopment Agreement), the Access and Indemnity Agreement
(as
defined in the Redevelopment Agreement), the Assignment, Assumption and
Cooperation Agreement, the Giants/Jets Settlement Agreement, as each agreement
may be amended from time to time (including, the Second Amendment to the
Declaration) and any agreements entered into by MDLP and the NJSEA directly
related to the foregoing enumerated instruments implementing the obligations
of
MDLP or any of the Component Entities under the foregoing enumerated
instruments.
“Treasury
Regulations”
means
the income tax regulations promulgated by the Commissioner of Internal Revenue
from time to time, as the same may be amended, supplemented or
recodified.
“Unreturned
Capital Contributions Accounts”
shall
mean, collectively, the Unreturned MDLP Capital Contributions Account and the
Unreturned MC Partners Capital Contributions Account.
“Unreturned
MDLP Capital Contributions Account”
shall
mean an account maintained for internal bookkeeping purposes by a MC Component
Entity (or Office/Hotel Component Owner) upon a Take Down of such MC Component
Entity (or Office/Hotel Component Owner) for MDLP and/or its Affiliates, which
account, as of any date shall equal the sum of all deemed capital contributed
by
MDLP pursuant to Section 10.6.7 and all capital contributed by MDLP and/or
its
Affiliates as of such date, reduced (but not below zero) by such MC Component
Entity’s (or Office/Hotel Component Owner’s) distributions (other than
distributions that represent a return on rather than a return of MDLP’s
Unreturned MDLP Capital Contributions Account) to MDLP and/or its Affiliates
pursuant to the applicable Office/Hotel Component LP Agreement.
18
“Unreturned
MC Partners Capital Contributions Account”
shall
mean an account maintained for internal bookkeeping purposes by a MC Component
Entity (or Office/Hotel Component Owner) upon a Take Down of such MC Component
Entity (or Office/Hotel Component Owner) for the MC Partners and/or its
Affiliates, which account, as of any date shall equal the sum of all deemed
capital contributed by the MC Partners pursuant to Section 10.6.7 and all
capital contributed by the MC Partners and/or its Affiliates as of such date,
reduced (but not below zero) by such MC Component Entity (or Office/Hotel
Component Owner’s) distributions (other than distributions that represent a
return on rather than a return of the MC Partners’ Unreturned MC Partners
Capital Contributions Account) to the MC Partners and/or its Affiliates pursuant
to the applicable Office/Hotel Component LP Agreement.
“WMB
Annual Payment”
shall
mean the annual payment in the amount of $100,000 that MDLP is obligated to
pay
under Paragraph 8 of the Conservancy Trust Agreement to the Meadowlands
Conservation Trust for a maximum time period of seventy-five (75) years as
more
particularly provided in the Conservancy Trust Agreement.
“Written
Materials”
has
the
meaning specified in Section 8.3.2.
3. MC
Partners’ Rights.
3.1The
parties hereto hereby agree and acknowledge that the MC Partners had certain
rights, benefits and obligations with respect to the Project, the Component
Entities and the ROFR Component Entities memorialized in the Original
Partnership. In
connection with the Redemption, the Original Partnership redeemed the MC
Partners’ respective partnership interests in the Original Partnership in
exchange for: (i) $22,500,000 in cash paid on the Execution Date;
(ii)
the distribution to Special General Partner of non-economic general partnership
interests in each of the A-B Office LP, the C-D Office LP and the Hotel LP
(each
an “MC
Component Entity”
or
“Office/Hotel
Component Owner”
and
being collectively referred to herein as the “MC
Component Entities”
or
“Office/Hotel
Component Owners”);
and
(iii) the distribution of certain rights, benefits and obligations of the
MC
Partners with respect to the Component Entities and the ROFR Component Entities.
Contemporaneously with the Redemption, the JV GP delivered the MC Note to
MC
Entertainment. The parties hereto intend that, following the Redemption and
the
delivery of the MC Note, and prior to any Take Down, none of the MC Partners
shall be treated as partners of any Component Entity or ROFR Component Entity
for tax purposes. Except as otherwise provided herein, the parties hereto
agree
that MC Partners shall have only those certain rights, benefits and obligations
(the “Xxxx-Xxxx
Rights”)
which
are set forth in this Agreement, the Redemption Agreement, the MC Note and
the
Office/Hotel Component LP Agreements and, as applicable, which shall be set
forth in the ROFR Component Entity Agreements. MDLP, the applicable MC Component
Entity and the JV GP represent and warrant that each of MDLP and the applicable
MC Component Entity is duly authorized and has the full authority to grant,
or
permit the exercise of, such Xxxx-Xxxx Rights to or by the MC Partners and
that
neither MDLP, the applicable MC Component Entity nor the JV GP (nor any of
their
Affiliates) has taken or omitted to take any action or will take or omit
to take
any action that would adversely affect the Xxxx-Xxxx Rights of either or
both of
the MC Partners. Such Xxxx-Xxxx Rights shall be exercisable by Special General
Partner as a general partner and/or option holder in each MC Component Entity
or, as applicable, each ROFR Component Entity or, if such rights may only
be
exercisable by MDLP, then, promptly upon the receipt of written notice from
the
MC Partners, the general partner of MDLP shall or shall cause MDLP to assert
such rights on behalf of the MC Partners. The parties hereby recognize and
agree
that the Project shall be managed and operated pursuant to, and in accordance
with, the Major Decisions set forth in Section 13, including, but not limited
to, Section 13.1.3. In connection with the foregoing, and subject to the
terms
and conditions of the Transaction Documents, MDLP covenants to the parties
hereto that, subject to any lender foreclosure rights lenders may have under
their respective loan documentation, it (or its permitted successors and
assigns) will continue to act directly or indirectly as the Developer of
the
Project pursuant to the Redevelopment Agreement and to perform or cause the
Component Entities, and, if applicable, the ROFR Component Entities to perform
their respective duties and obligations under all Transaction Documents,
including, but not limited to, MDLP’s obligation to complete the construction of
the Traffic and Infrastructure Improvements described in Sections 3.2(a)(i)
through (iv) of the Redevelopment Agreement as required under the Redevelopment
Agreement.
19
3.2 MDLP
hereby covenants to cause ERC LP and ERC LP hereby covenants to perform for
the
benefit of NJSEA and the Component Entities those certain obligations of MDLP
assigned to and assumed by the ERC LP under the Assignment, Assumption and
Cooperation Agreement, including, without limitation, the obligations of MDLP
to
perform: (i) under all permits and agreements as provided in Section 4 thereof;
(ii) the obligations and conditions of MDLP under permits as provided in Section
5 thereof; (iii) the duties of MDLP, if any, related to permits, agreements and
other documents as provided in Section 6 thereof; and (iv) the obligations
of
MDLP under the Memorandum of Agreement among the Authority, MDLP and the NJDEP,
dated March 4, 2004, as provided in Section 7 thereof.
3.3 MDLP
further covenants to the parties hereto that, in connection with, and on or
about the date that the ERC Restructuring is consummated, MDLP shall cause
New
ERC LP and its successors or assigns to execute the Instrument of Accession,
at
which time the parties hereto acknowledge and agree that New ERC LP, its
successors or assigns, shall become a party to this Agreement and in such
capacity shall assume and agree to be bound by all of the rights and obligations
of ERC LP set forth in this Agreement and/or the Transaction Documents and
shall
have the rights and obligations set forth herein and therein.
4. Purposes
and Powers of MDLP.
The purposes of MDLP are limited and include only the following: investing
in,
acquiring (whether by way of a leasehold or fee ownership interest or a
combination thereof), holding, owning, developing, operating, maintaining,
improving, leasing, financing, refinancing, mortgaging, selling, conveying,
exchanging, transferring and otherwise using the Project Site
20
and
the
Project or any part thereof or any interest therein, including entering into
the
Redevelopment Agreement and acting as the “Developer”
thereunder and taking such other actions as are contemplated by the development
budget or any of the Authority Agreements and in furtherance of any of the
foregoing and doing any and all other acts or things which may be incidental
or
necessary to carry on the business of MDLP as herein contemplated. Subject
to
the MC Component LP Agreements or, as applicable, the ROFR Component Entity
Agreements, the JV GP may delegate all or any of its duties as managing general
partner of MDLP to such other Persons as it deems necessary or desirable for
the
transaction of the business of MDLP, the Component Entities or, as applicable,
the ROFR Component Entities, and, in furtherance of any such delegation, the
JV
GP shall have the right to appoint, employ, or contract with and compensate
any
such Persons. Subject to the MC Component LP Agreements or, as applicable,
the
ROFR Component Entity Agreements, such Persons may, under the supervision of
the
JV GP, administer, or assist in the administration of the routine day-to-day
management of MDLP, the Component Entities or, as applicable, the ROFR Component
Entities and their business and affairs; may serve as the JV GP’s advisors and
consultants in connection with decisions made by the JV GP; may act as
consultants, accountants, correspondents, attorneys, brokers, escrow agents,
or
in any other capacity; and may perform such other acts or services for MDLP
as
the JV GP may reasonably and prudently approve. Notwithstanding the foregoing,
the delegation of any or all of the foregoing duties shall not relieve MDLP,
JV
GP, JV Holding or GP LLC of any of their respective obligations under this
Agreement, the MC Component LP Agreements or, as applicable, the ROFR Component
Entity Agreements.
5. Notice
of Lawsuits, Liens, Defaults under Loans, etc
.
Each of
the JV GP and the MC Partners covenant and agree to notify the other party
as
soon as reasonably possible upon receipt of any written notice of: (i) the
filing or threatened filing of any action in law or in equity naming MDLP,
the
JV GP, the MC Partners or any Component Entity, or, if applicable, a ROFR
Component Entity, as a party relating in any material way to any portion of
the
Project, including, but not limited to, any Authority Agreements, any Component
Entity or any ROFR Component Entity; (ii) any actions to impose material
liens of any kind whatsoever or of the imposition of any lien whatsoever against
MDLP, any Component Entity, or a ROFR Component Entity or their respective
assets including the Project or any portion thereof, that may have a material
adverse effect on any such entity; or (iii) the default by MDLP, the JV GP,
the MC Partners or any Component Entity, or, if applicable, a ROFR Component
Entity of any of its material obligations to any lender or NJSEA or under any
Transaction Documents.
6. Allocation
of Benefits and Obligations Under Authority Agreements and Rights of First
Refusal
.
Each of
MDLP, the JV GP and JV Holding covenant and agree to timely take any and all
actions necessary or desirable to enforce the rights of the parties hereto
under
the Authority Agreements and the Rights of First Refusal. The preceding covenant
and agreement shall be applicable whether or not the MC Partners have delivered
a written request to the above parties regarding the taking of any such action.
In the event that any of MDLP, the JV GP or JV Holding shall fail to promptly
take any such actions after delivery of written request by the MC
21
Partners,
then MDLP, the JV GP and JV Holding hereby agree to execute any and all
documents and to take any actions required to permit the MC Partners to enforce
the rights of the MC Partners, the MC Component Entities or, if applicable,
the
ROFR Component Entities, including, but not limited to, negotiating and entering
into an Agreement with NJSEA with respect to a ROFR. Each of MDLP, the JV GP
and
JV Holding hereby designates Special General Partner, its members and officers
with full power of substitution, as each party’s true and lawful attorney to
act, and in such party’s name, place and stead, to make, execute, sign and
acknowledge all documents, instruments and agreements to accomplish the
intention of this Section 6.
6.1 Allocation
of Benefits and Obligations under Authority Agreements; Rights of First
Refusal.
6.1.2 Rights
of First Refusal.
Section
10.2 of the Redevelopment Agreement provides that the Developer has a right
of
first refusal (each such right of first refusal set forth in the Redevelopment
Agreement, the Hotel ROFR Agreement or the Arena ROFR being referred to in
this
Agreement as the “Right
of First Refusal”
or
“ROFR”)
respecting the acquisition, use, reuse and/or renovation of the Arena (as
defined in the Redevelopment Agreement) (the “Arena
ROFR”)
and
the development of one or more hotels adjacent to the Meadowlands Racetrack
(the
“Hotel
ROFR”).
To
more particularly set forth the terms and provisions of the Arena ROFR and
the
Hotel ROFR, MDLP and the NJSEA entered into the ROFR Agreements. The Hotel
ROFR
Agreement contemplates that the NJSEA may enter into agreements with third
parties wherein such third parties may develop one or more hotels at the
Meadowlands Racetrack (subject to satisfaction of certain conditions) and that
MDLP shall have a separate right of first refusal for each hotel the NJSEA
desires to develop at the Meadowlands Racetrack. As a result thereof, each
such
right of first refusal shall constitute a separate ROFR hereunder and shall
be
subject to the provisions of this Section 6.1.2. The determination of
whether or not MDLP shall exercise a Right of First Refusal must be Approved
by
MDLP and the MC Partners (in the exercise of their sole and absolute discretion)
no later than the twentieth (20th)
day
after the receipt of an Offer Notice (such twentieth (20th)
day
being referred to herein as the “Initial
ROFR Election Date”
and
the
twenty (20) day period between MDLP’s receipt of an Offer Notice and the Initial
ROFR Election Date being referred to herein as the “Initial
ROFR Election Period”).
If
the election to exercise a Right of First Refusal shall not be Approved by
MDLP
and the MC Partners (in the exercise of their sole and absolute discretion)
within the applicable Initial ROFR Election Period, such failure shall be deemed
to mean that MDLP and the MC Partners do not approve of such election. The
determination of whether or not to proceed with such election shall not be
subject to the mediation and arbitration provisions of Section 15. If the
election to proceed with a ROFR shall not be Approved by MDLP and the MC
Partners (in the exercise of their sole and absolute discretion) prior to the
expiration of the Initial ROFR Election Period and neither MDLP nor the MC
Partners shall have delivered a ROFR Electing Party Notice (as hereinafter
defined) prior to the expiration of the Initial ROFR Election Period, then
neither MDLP nor the MC
22
Partners
shall be permitted to proceed with the exercise of such ROFR. In accordance
with the terms of the applicable ROFR Agreement, if MDLP shall determine to
waive the applicable ROFR and neither MDLP nor the MC Partners shall have
delivered a ROFR Participation Notice within the thirty (30) day period set
forth in Section 6.1.2.2.1(a) below, then the JV GP, on behalf of MDLP,
shall deliver a written notice to the NJSEA of MDLP’s determination to waive the
applicable ROFR.
6.1.2.1 Election
to Proceed with ROFR Approved by the Parties; Other Party Provides ROFR
Participation Notice or Successful Bid Notice.
If the
election to proceed with a ROFR is Approved by MDLP and the MC Partners (in
the
exercise of their sole and absolute discretion) prior to the expiration of
the
Initial ROFR Election Period or if MDLP or the MC Partners shall provide a
ROFR
Participation Notice within the thirty (30) day period set forth in
Section 6.1.2.2.1(a) below or if a Successful Bid Notice is sent in
accordance with Section 6.1.2.2.2(a), then MDLP (or the JV GP or an
Affiliate of MDLP or JV GP) and the MC Partners (or any of their Affiliates)
shall form a limited partnership, which shall be “fractions rule” compliant
within the meaning of Section 514(c)(9) of the Code and the Treasury
Regulations, unless otherwise reasonably determined by MDLP in its sole
discretion (each a “ROFR
Component Entity”
and
collectively the “ROFR
Component Entities”),
and,
in connection therewith, execute an agreement of limited partnership in
substantially the form of the Office/Hotel Component LP Agreement (each a
“ROFR
Component Entity Agreement”)
with
the following revisions: (i) there shall be no establishment of initial
capital accounts for such ROFR Component Entities as provided in
Section 10.6.7, as there shall be no Take Down associated with the
development of the particular project, (ii) the aggregate Partnership
Interest of MDLP and/or its Affiliates shall be fifty percent (50%) and the
aggregate Partnership Interests of the MC Partners and/or their Affiliates
shall
be fifty percent (50%), with each such party being obligated to contribute
Required Equity, pari passu, based on their respective Partnership Interests,
(iii) the list of Major Decisions shall be modified to address the fact
that the ROFR Component Entity is a 50/50 joint venture to be jointly controlled
by MDLP and/or its Affiliates on the one hand and the MC Partners and/or their
Affiliates on the other hand, (iv) the managing general partner shall be
MDLP if the use is entertainment and/or retail related, and the managing general
partner shall be Special General Partner if the use is office or hotel related,
and the managing general partner shall be as otherwise Approved by MDLP and
the
MC Partners (as reasonably agreed upon by MDLP and the MC Partners) if the
use
shall not be entertainment, retail, office or hotel related, (v) the
managing general partner shall be obligated to commence development and
construction upon the earlier of the date required under the applicable ROFR
Agreement, if any, and the date that may be agreed
23
upon
by
MDLP and the MC Partners and set forth in such limited partnership agreement
and
(vi) the capital accounts of the partners in each such ROFR Component Entity
shall be maintained in accordance with Code Section 704(b), and the Treasury
Regulations promulgated thereunder, and (vii) all allocations of income, gain
loss and deduction that are capable of having economic effect shall have
“substantial economic effect” within the meaning of Code Section 704(b) and the
Treasury Regulations promulgated thereunder. Upon the formation of a ROFR
Component Entity, the terms and provisions of such agreement of limited
partnership shall govern the rights and obligations of MDLP, the JV GP and/or
their Affiliates and the MC Partners and/or their Affiliates respecting the
applicable ROFR and the associated property and rights to be acquired from
the
NJSEA.
6.1.2.2 Election
to Proceed with ROFR Not Approved by MDLP and the MC Partners; One Party
Expresses Desire to Exercise ROFR.
If MDLP
and the MC Partners do not approve of an election to exercise a ROFR and if,
prior to the expiration of the Initial ROFR Election Period, either MDLP or
the
MC Partners shall deliver a written notice (a “ROFR
Electing Party Notice”)
to the
other party stating its desire to exercise the applicable ROFR (any such party
that provides a ROFR Electing Party Notice being referred to herein as the
“ROFR
Electing Party”),
then,
subject to the provisions of the applicable XXXX Xxxxxxxxx, xxx XXXX Electing
Party, on behalf of MDLP, shall have the exclusive right during the period
(the
“Exclusive
Negotiation Period”)
commencing on the date that is the earlier of (i) the date upon which MDLP
and
the MC Partners determine pursuant to a written instrument that MDLP shall
not
exercise the applicable ROFR, and (ii) the Initial ROFR Election Date, and
terminating on the outside date for execution of a definitive agreement under
the applicable ROFR Agreement, to cause MDLP, on behalf of a ROFR Electing
Party, to negotiate the terms and provisions of a written agreement with the
NJSEA to acquire the property and rights that are subject to the applicable
ROFR
and this Section 6.1.2.2 and, if such negotiations are successful, to cause
MDLP, on behalf of a ROFR Electing Party, to enter into such a written agreement
pursuant to and in accordance with Section 6.1.2.1. The failure of a party
to
deliver a ROFR Electing Party Notice shall be deemed an election by such party
not to exercise the applicable ROFR.
6.1.2.2.1 ROFR
Electing Party Enters Into Agreement with NJSEA During Exclusive Negotiation
Period.
If the
ROFR Electing Party shall succeed in entering into a written agreement with
the
NJSEA within such Exclusive Negotiation Period, then, subject to the provisions
of Section 6.1.2.2.1(a), the ROFR Electing Party shall be permitted to
enter into such written agreement without the involvement of MDLP (or the JV
GP)
or the
24
MC
Partners, as the case may be (each a “Non-Electing
Party”
and
collectively the “Non-Electing
Parties”),
and
the Non-Electing Parties covenant that they shall provide all reasonably
necessary assistance and execute all reasonably necessary agreements, in each
case, without recourse by the ROFR Electing Party or the NJSEA (except any
recourse by the NJSEA as provided in, and subject to, the next two sentences),
to assign or transfer the applicable ROFR to the ROFR Electing Party or its
Affiliates. If the agreement(s) entered into with the NJSEA impose any
obligations or liabilities on the Non-Electing Parties, or their Affiliate(s),
as applicable, including any obligations or liabilities arising out of or in
connection with any of the Non-Electing Parties being direct or indirect owners
of any Person that is a party to the agreements with the NJSEA (for example,
if
the agreement(s) require that MDLP must be the party to such agreement(s)),
then
the obligation of the Non-Electing Parties to provide assistance and agreements
as provided in the immediately preceding sentence shall be conditioned upon
the
ROFR Electing Party executing an indemnification agreement in favor of the
Non-Electing Parties or their Affiliate(s), as applicable. Such indemnification
agreement shall provide that the ROFR Electing Party agrees to indemnify, defend
and hold harmless the Non-Electing Parties and their Affiliate(s), as
applicable, from and against any and all liabilities, obligations, claims,
losses, suits, damages, costs and expenses (including reasonable attorneys’ fees
and expenses) arising out of or occurring as a result of the agreement(s)
entered into with the NJSEA or the property that is subject to the agreements
or
the ownership of such Person(s). The ROFR Electing Party shall be permitted
to
execute such documents and take such actions on behalf of MDLP without the
necessity of the approval or consent of the Non-Electing Parties as shall be
reasonably necessary in order that the applicable ROFR shall be assigned or
transferred to the ROFR Electing Party or its Affiliate; provided, however,
that
such documents shall not impose any obligations or liabilities on the
Non-Electing Parties.
(a) Agreement
with NJSEA is More Favorable than Offer Notice; Other Party’s Right to
Participate.
If the
ROFR Electing Party shall enter into a written agreement with the NJSEA prior
to
the expiration of the applicable Exclusive Negotiation Period and if the price
or other consideration to be paid to the NJSEA is an amount equal to or less
than ninety-five percent (95%) of the price or other consideration proposed to
be paid to the NJSEA in the applicable Offer Notice or if any other term(s),
taken as a whole, grant materially better rights or
25
benefits
than as set forth in the applicable Offer Notice, then the ROFR Electing Party
shall provide a written notice to the Non-Electing Parties of such fact (such
written notice, a “ROFR Contract
Notice”).
The
MC Partners (if the ROFR Electing Party is MDLP) or MDLP (if the ROFR Electing
Party is either of the MC Partners) shall have thirty (30) days after the
receipt of a ROFR Contract Notice to provide a written notice to the other,
of
their election (a “ROFR
Participation Notice”)
to
participate in the exercise of the applicable ROFR on the terms set forth in
the
ROFR Contract Notice.
(b) Other
Party Provides a ROFR Participation Notice.
If the
Non-Electing Party shall provide a ROFR Participation Notice within the
thirty (30) day period described in Section 6.1.2.2.1(a) hereof, then
MDLP and the MC Partners shall enter into a limited partnership agreement as
contemplated in Section 6.1.2.1 hereof.
(c) Other
Party Does Not Provide a ROFR Participation Notice.
If the
Non-Electing Party shall fail to provide a ROFR Participation Notice within
the
thirty (30) day period described in Section 6.1.2.2.1(a) hereof, the
Non-Electing Party shall be deemed to have elected not to so participate and
the
ROFR Electing Party shall be permitted to enter into the written agreement
with
the NJSEA without the involvement of MDLP (if MDLP is the Non-Electing Party)
or
any of the Non-Electing Parties as provided in the first paragraph of this
Section 6.1.2.2.1.
6.1.2.2.2 ROFR
Electing Party Fails to Enter Into Agreement with NJSEA; Parties May Negotiate
Independently with NJSEA.
If, as
of the expiration of the Exclusive Negotiation Period, the ROFR Electing Party
shall have failed to enter into a written agreement with the NJSEA as aforesaid,
then, subject to any applicable provisions of the applicable ROFR Agreement
and the right of the Non-Electing Parties to participate as the result of the
timely delivery of a Successful Bid Participation Notice as provided in
Sections 6.1.2.2.2(a) and (b) hereof, the MC Partners, MDLP and the JV GP
and/or their respective Affiliate(s) shall be permitted to respond independently
to any solicitations from the NJSEA to the public (such as requests for
proposals) or otherwise negotiate with the NJSEA to so acquire the property
and
rights that are subject to the applicable ROFR (any such independent response
or
negotiation, an “Independent
Negotiation”).
26
(a) Party
is Successful in Independent Negotiation; Other Party’s Right to
Participate.
If MDLP
and/or its Affiliates or the MC Partners and/or their Affiliates (such party,
the “Successful
Bid Party”)
shall
enter into a written agreement with the NJSEA as the result of an Independent
Negotiation, then the Successful Bid Party shall provide a written notice to
the
other party of such fact (such written notice, a “Successful
Bid Notice”).
The
MC Partners (if the Successful Bid Party is MDLP) or MDLP (if the Successful
Bid
Party is the MC Partners) (the “Non-Participating
Party”)
shall
have thirty (30) days after the receipt of a Successful Bid Notice to provide
a
written notice to the other, of their election (a “Successful
Bid Participation Notice”)
to
participate in the transaction that is the subject of the written agreement
with
the NJSEA on the terms set forth in the Successful Bid Notice.
(b) Other
Party Provides a Successful Bid Participation Notice.
If the
Non-Participating Party shall provide a Successful Bid Notice within the thirty
(30) day period described in Section 6.1.2.2.2(a) hereof, then MDLP and the
MC Partners shall enter into a limited partnership agreement as contemplated
in
Section 6.1.2.1 hereof.
(c) Other
Party Does Not Provide a Successful Bid Participation
Notice.
If the
Non-Participating Party shall fail to provide a Successful Bid Participation
Notice within the thirty (30) day period described in Section 6.1.2.2.2(a)
hereof, the Non-Participating Party shall be deemed to have elected not to
so
participate and the Successful Bid Party shall be permitted to enter into a
written agreement with the NJSEA that is the result of the Independent
Negotiation without the involvement of MDLP (if MDLP is the Non-Participating
Party) or the other party, subject, however, to Section 6.1.2.2.2(c)(i)
hereof.
(i) Agreement
with NJSEA is More Favorable than Successful Bid Notice; Other Party’s Right to
Participate.
If the
Successful Bid Party shall enter into a written agreement with the NJSEA
subsequent to the thirty (30) day period described in Section 6.1.2.2.2(a)
and if the price or other consideration to be paid to the NJSEA is an amount
equal to or less than ninety-five percent (95%) of the price or other
consideration proposed to be paid to the NJSEA in the applicable
27
Successful
Bid Notice or if any other term(s), taken as a whole, grant materially better
rights or benefits than as set forth in the applicable Successful Bid Notice,
then the Successful Bid Party shall provide a written notice to the
Non-Participating Party of such fact (such written notice, a “Successful
Bid Reoffer Notice”).
The
Non-Participating Party shall have thirty (30) days after the receipt of a
Successful Bid Reoffer Notice to provide a written notice to the Successful
Bid
Party, of their election (a “Successful
Bid Reoffer Participation Notice”)
to
participate in the transaction that is the subject of the written agreement
with
the NJSEA on the terms set forth in the Successful Bid Reoffer
Notice.
(ii) Other
Party Provides a Successful Bid Reoffer Participation
Notice.
If the
Non-Participating Party shall provide a Successful Bid Reoffer Participation
Notice within the thirty (30) day period described in
Section 6.1.2.2.1(c)(i) hereof, then MDLP and the MC Partners shall enter
into a limited partnership agreement as contemplated in Section 6.1.2.1
hereof.
(iii) Other
Party Does Not Provide a Successful Bid Reoffer Notice.
If the
Non-Participating Party shall fail to provide a Successful Bid Reoffer Notice
within the thirty (30) day period described in Section 6.1.2.2.1(c)(i)
hereof, the Non-Participating Party shall be deemed to have elected not to
so
participate and the Successful Bid Party shall be permitted to enter into the
written agreement with the NJSEA without the involvement of MDLP (if MDLP is
the
Non-Participating Party) or the Non-Participating Party.
6.1.2.3 Right
of the MC Partners To Demonstrate to NJSEA that Hotel having Substantially
Same
Utility Can Be Built on Project Site instead of on Meadowlands Racetrack
Site.
Concurrently with MDLP and the MC Partners determining whether they shall
proceed with a particular Hotel ROFR and provided that, as of such date, the
MC
Partners either shall have Taken Down the Hotel Component or shall still have
a
right to Take Down the Hotel Components under Section 10 and shall not have
“committed to develop a hotel on the Hotel Component” as provided in
Section 5 of the Hotel ROFR Agreement, and provided further
28
that,
as
of such date, neither Special General Partner nor MC Entertainment shall be
in
material default under this Agreement (after the giving of any required notice
thereof and the expiration of any applicable cure period), the MC Partners
shall
be permitted, pursuant to subclause (iii) of Section 10.2(f) of the
Redevelopment Agreement (as incorporated in the Hotel ROFR Agreement), to
exercise MDLP’s right to demonstrate to the NJSEA that a hotel having
substantially the same utility to the NJSEA can be built on the portion of
the
Project Site (as defined in the Redevelopment Agreement) planned for the Hotel
Component instead of the Meadowlands Racetrack. If the MC Partners shall be
successful, then: (i) if the MC Partners have not yet Taken Down
the Hotel Component, the MC Partners shall Take Down the Hotel Component,
(ii) if the hotel that shall be constructed on the Hotel Component shall
not have video lottery terminals (or “slots”), or any other legalized form of
gaming on or in its premises, then MDLP, the JV GP and/or their Affiliates
and
the MC Partners and/or their Affiliates shall form a ROFR Component Entity,
which shall be “fractions rule” compliant within the meaning of Section
514(c)(9) of the Code and the Treasury Regulations, unless otherwise reasonably
determined by MDLP in its sole discretion, and, in connection therewith, execute
an agreement of limited partnership substantially in the form of the
Office/Hotel Component LP Agreement and proceed with the development of the
hotel thereon, and (iii) if the hotel that shall be constructed on the
Hotel Component shall have video lottery terminals (or “slots”), or any other
legalized form of gaming on or in its premises, then the MC Partners and/or
their Affiliates and MDLP and the JV GP and/or their Affiliates shall form
a
ROFR Component Entity, which shall be “fractions rule” compliant within the
meaning of Section 514(c)(9) of the Code and the Treasury Regulations, unless
otherwise reasonably determined by MDLP in its sole discretion, and, in
connection therewith, execute an agreement of limited partnership in
substantially the form of the Office/Hotel Component LP Agreement with the
following revisions: (A) the aggregate Partnership Interest of MDLP and/or
its Affiliates shall be fifty percent (50%) and the aggregate Partnership
Interests of the MC Partners and/or their Affiliates shall be fifty percent
(50%), with the MC Partners being obligated to contribute all Required Equity
as
set forth in the agreed-upon development budget for the Hotel Component until
such time as the Capital Ratio is 50:50 and, thereafter, each of MDLP, the
JV GP
and/or their Affiliates and the MC Partners and/or their Affiliates shall be
obligated to contribute Required Equity, pari passu, based on their respective
Partnership Interests in such ROFR Component Entity, (B) if, as of the
Capital Ratio Determination Date, the Capital Ratio is not 50:50, then the
MC
Partners shall be obligated to contribute capital to the ROFR Component Entity
as contemplated in Section 10.6.6(a), except that the amount to be
contributed by the MC Partners must result, after such contribution and
the
29
distribution
described in Section 10.6.6(a), in a Capital Ratio of 50:50,
(C) MDLP’s right to elect to take the actions set forth in
Section 10.6.6(b)(i) and Section 10.6.6(b)(ii) shall arise if the Capital
Ratio is not 50:50, (D) the list of Major Decisions shall be modified to
address the fact that the ROFR Component Entity is a 50/50 joint venture to
be
jointly controlled by MDLP and the MC Partners, (E) the MC Partners shall
be the managing general partner of such ROFR Component Entity and (F) the
capital accounts of the partners in such ROFR Component Entity shall be
maintained in compliance with Code Section 704(b) and the Treasury Regulations
promulgated thereunder; and (G) all allocations of income, gain, loss and
deduction that are capable of having economic effect shall have “substantial
economic effect” within the meaning of Code Section 704(b) and the Treasury
Regulations promulgated thereunder. If, as of such date, the MC Partners shall
not have Taken Down the Hotel Component and the MC Partners shall no longer
have
a right to Take Down the Hotel Component under Section 10, MDLP shall be
permitted, pursuant to subclause (iii) of Section 10.2(f) of the Redevelopment
Agreement (as incorporated in the Hotel ROFR Agreement), to exercise MDLP’s
right to demonstrate to the NJSEA that a hotel having substantially the same
utility to the NJSEA can be built on the portion of the Project Site (as defined
in the Redevelopment Agreement) planned for the Hotel Component instead of
the
Meadowlands Racetrack. If MDLP shall be successful, then the provisions of
Section 10.7 shall control in respect of MDLP’s actions with respect to the
Hotel Component, except that, if the MC Partners shall make a Partnership
Election, then the Partnership Interests and capital contribution obligations
in
subclause (1) of Section 10.7.3.2 shall be amended to be consistent with
the subclause (ii) and (iii) of the second sentence of this
Section 6.1.2.3. Also, should either the MC Partners or MDLP, as
applicable, be successful in demonstrating to the NJSEA that a hotel having
substantially the same utility to the NJSEA can be built on the portion of
the
Project Site planned for the Hotel Component instead of the Meadowlands
Racetrack, then the managing general partner of the ROFR Component Entity formed
as provided in this Section 6.1.2.3 shall be obligated to commence
development and construction upon the earlier of the date required under any
applicable agreement between MDLP and the NJSEA, and the date that may be agreed
upon by MDLP and the MC Partners and set forth in such ROFR Component Entity
partnership agreement. Notwithstanding anything to the contrary, MDLP’s or the
MC Partners’ right to participate in the development and ownership of a hotel as
contemplated herein with video lottery terminals (or “slots”), or any legalized
form of gaming on or in its premises is subject to MDLP’s or the MC Partners’
ability to meet the federal, state or local licensure requirements for the
operation of a gaming facility (that is, a facility with video lottery
terminals), or any legalized form of gaming) (“Gaming
Facility”).
If,
for any reason, either
30
MDLP
or
the MC Partners is unable to meet such licensure requirements for the operation
of a Gaming Facility (such party, an “Ineligible
Party”),
then
the Ineligible Party may assign or transfer its Partnership Interest in the
ROFR
Component Entity to another Person that is reasonably acceptable to the other
party (it being understood that a transfer from an Ineligible Party that would
not be permitted shall include (a) any transfer to a Person that, upon
becoming a partner, shall constitute an Ineligible Party, and (b) any
transfer to a Person that does not have sufficient net worth, at the time of
the
transfer, to fund the reasonably foreseeable equity requirements to fund
budgeted equity requirements and equity requirements that would be required
to
be funded in subsequent years). In such event any consideration received by
the
Ineligible Party shall be the sole property of the Ineligible
Party.
6.1.3 Any
Other Development of a Hotel at Meadowlands Race Track.
If the
NJSEA shall approach MDLP to negotiate a transaction for MDLP to develop a
hotel
at the Meadowlands Race Track without the implementation of the terms and
provisions of the Hotel ROFR Agreement or the NJSEA and MDLP shall otherwise
engage in negotiations to develop such a hotel, the decision to have MDLP to
proceed with such development shall require the Approval of the Parties (as
determined in the exercise of their sole and absolute discretion). If MDLP
and
the MC Partners shall so provide such approval, then MDLP, the JV GP and/or
their respective Affiliates and the MC Partners and/or their respective
Affiliates shall form an ROFR Component Entity in accordance with
Section 6.1.2.1 and proceed with the development of the hotel in accordance
with the ROFR Component Entity partnership agreement to be entered into the
by
MDLP, the JV GP and/or their respective Affiliates and the MC Partners and/or
their respective Affiliates. If MDLP and the MC Partners shall not provide
such
approval, then MDLP and the MC Partners shall proceed in their individual
negotiations with the NJSEA and their individual elections to proceed (and
corresponding obligations to permit the other party to participate in a
transaction with the NJSEA) in a manner similar to the manner in which MDLP
and
the MC Partners, if a ROFR shall not be Approved by MDLP and the MC Partners,
are permitted to proceed with respect to a ROFR (and provide the other party
an
opportunity to participate in such ROFR) that shall not be Approved by the
Parties.
6.1.4 Change
in Use of Hotel Component.
Section 10.2 of the Redevelopment Agreement contemplates that, regardless
of whether the Hotel ROFR is exercised, the NJSEA shall give special
consideration to the Approval of a Major Modification to the Approved Master
Plan and Conceptual Site Plan to permit the use of the portion of the Project
Site planned for the Hotel Component for an alternative use consistent with
the
Enabling Legislation (all capitalized terms used in this Section 6.1.4 not
otherwise defined in the Original Agreement shall have the meanings ascribed
to
them in the Redevelopment Agreement).
31
6.1.4.1 Change
in Use; the MC Partners Have Right to Approve.
If, as
of the date of the proposed change in use of the Hotel Component, the MC
Partners either shall have Taken Down the Hotel Component or shall still have
a
right to Take Down the Hotel Component under Section 10, any change in use
of
the Hotel Component to an alternative use in use shall require the Approval
of
the Parties (as determined in the exercise of their sole and absolute
discretion). If the NJSEA shall approve such change in use and MDLP and the
MC
Partners shall so approve such change in use as a Major Decision (such Major
Decision to be determined by MDLP and the MC Partners in the exercise of their
sole and absolute discretion), then, prior to the development of the Hotel
Component, MDLP and/or their respective Affiliates and the MC Partners shall
form a ROFR Component Entity in accordance with Section 6.1.2.1, except
that the managing general partner shall be MDLP, the JV GP and/or their
respective Affiliates if the use is entertainment and/or retail related, and
the
managing general partner shall be the MC Partners and/or their respective
Affiliates if the use is office or hotel related, and the managing general
partner shall be as otherwise Approved by the Parties (as reasonably agreed
upon
by the parties) if the use shall not be entertainment, retail, office or hotel
related.
6.1.4.2 Change
in Use; No Right of the MC Partners to Approve.
If, as
of the date of the proposed change in use of the Hotel Component, the MC
Partners shall not have Taken Down the Hotel Component and the MC Partners
shall
no longer have a right to Take Down the Hotel Component under Section 10, any
change in use of the Hotel Component to an alternative use in use shall not
require the Approval of the Parties but, rather, may be agreed to by MDLP.
If
the NJSEA shall approve such change in use and MDLP shall so agree upon such
change in use, then the provisions of Section 10.7 shall control in respect
of MDLP’s actions with respect to the Hotel Component.
7. Management
of the MC Component Entities and the ROFR Component Entities: REIT
Issues.
7.1 Subject
to Section 7.2, the parties hereto covenant and agree to negotiate in good
faith
to structure the ownership and management of the assets of the Office/Hotel
Component Owners and, as applicable, the ROFR Component Entities in a manner
that is tax-neutral for each of MDLP, the JV GP and/or their respective
Affiliates and the MC Partners and/or their Affiliates; provided, however,
to
the extent that a tax-neutral structure cannot be agreed upon by the parties,
the provisions of Section 7.2 shall govern the ownership and management of
the
assets of the Office/Hotel Component Owners and, as applicable, the ROFR
Component Entities.
7.2 The
parties
hereto hereby acknowledge the status of Xxxx-Xxxx Realty Corporation, a Maryland
corporation (“MCRC”)
(an
Affiliate of the MC Partners) as a REIT. The JV GP, JV Holding and the MC
Partners further covenant and agree that the MC
Component Entities and, as applicable, the ROFR Component Entities and their
respective properties shall be managed in a manner so that: (a) the gross income
of each such entity meets the tests provided in Section 856(c)(2) and (3) of
the
Code as if each MC Component Entity and each ROFR Component Entity were a REIT;
(b) the assets of each such entity meets the tests provided in Section 856(c)(4)
of the Code as if each MC Component Entity and each ROFR Component Entity were
a
REIT; and (c) each such entity minimizes federal, state, local and excise taxes
that may be incurred by MCRC, or any of its Affiliates, including taxes under
Section 857(b), 860(c) or 4981 of the Code. MDLP, the JV GP, JV Holding and
the
MC Partners hereby acknowledge, agree and accept that each MC Component Entity
and each ROFR Component Entity may be precluded from taking, or may be required
to take, an action which it would not have otherwise taken, even though the
taking or the not taking of such action might otherwise be advantageous to
each
such MC Component Entity and each ROFR Component Entity and/or to the JV GP,
JV
Holding or the MC Partners (or one or more their Affiliates). If the MC Partners
(or an Affiliate of the MC Partners) determines that, in order to meet the
requirements of this provision, one or more corporations should elect to be
treated as a "taxable REIT subsidiary" (as defined in Section 856(l)(1) of
the
Code) in accordance with Section 856(l)(1)(B) of the Code (and in accordance
with guidance issued by the Internal Revenue Service), MDLP, the JV GP, JV
Holdings, the MC Partners and MCRC hereby agree to cause such corporations
to
file a joint "TRS" election with MCRC to be treated as a "taxable REIT
subsidiary" pursuant to, and in accordance with, Section 856(l)(1)(B) of the
Code. Each MC Component Entity and each ROFR Component Entity and MCRC shall
join in such elections within seven (7) days after written notice to such
MC Component Entity and each ROFR Component Entity and MCRC by the MC
Partners.
32
8. Management.
Subject
to the Take Down of any MC Component Entity, the parties hereto acknowledge
that
MDLP shall directly or indirectly control the Component Entities.
8.1Management
of MC Component Entities and ROFR Component Entities.
8.1.1
Party
Representatives.
MDLP
shall designate, in writing delivered to the MC Partners, its representative
(the “MDLP
Representative”)
and
alternate representative (the “Alternate
MDLP Representative”),
and
the MC Partners shall designate, in writing delivered to MDLP, their
representative (the “MC
Representative”)
and
alternate representative (the “Alternate
MC Representative”),
for
purposes of this Agreement. The MDLP Representative or, if not available, the
Alternate MDLP Representative, shall be fully authorized to provide any
approvals and otherwise act on behalf of MDLP for all purposes and any approval
so provided and any act so taken by MDLP Representative or, if not available,
the Alternative MDLP Representative for or on behalf of MDLP, shall be binding
upon MDLP for all purposes of this Agreement. The MC Representative or, if
not
available, the Alternate MC Representative, shall be fully authorized to provide
any approvals and otherwise act on behalf of the MC Partners for all purposes
of
this Agreement and any approval so provided and any act so taken by
the MC
Representative or, if not available, the Alternative MC Representative, for
or
on behalf of the MC Partners shall be binding upon each of the MC Partners,
respectively, for all purposes of this Agreement. MDLP and the MC Partners
may,
at any time, designate a replacement representative and such designation shall
be effective immediately upon the receipt of written notice of such designation
by the other party. The initial MC Representative, Alternate MC Representative,
MDLP Representative and Alternate MDLP Representative shall be those Persons
set
forth in Exhibit
E
to this
Agreement.
33
8.1.2 Meetings
of Party Representatives.
(a) The
MDLP
Representative or the Alternate MDLP Representative and the MC Representative
or
the Alternate MC Representative shall meet at such times as reasonably requested
by MDLP or the MC Partners. Such meetings may occur telephonically.
(b) Notice
of
meetings of party representatives may be given personally or by mail, in writing
or in any manner that is reasonable under the circumstances to give actual
notice; provided, however, absent a written waiver by either the MDLP
Representative (or the Alternate MDLP Representative) or the MC Representative
(or the Alternate MC Representative), each representative shall receive not
less
than ten (10) days advance notice of any meeting of the party
representatives.
8.2
Partner
Cooperation; Project Status Reports and Budgets.
If the JV GP shall request such cooperation, the MC Partners shall, in a
commercially reasonable manner, provide such cooperation and expertise and
participation as shall be necessary in order to gain the applicable governmental
approvals and agreements with any Governmental Authority in order to complete
the Project and shall be reimbursed for its out of pocket expenses and
reasonable costs for same if and to the extent the JV GP requests that the
MC
Partners take the specific actions resulting in the requirements to expend
such
sums. The JV GP shall, in a commercially reasonable manner, provide its
cooperation and expertise in a manner intended to enable the successful
completion of the Project. The JV GP shall provide the MC Partners with monthly
“job cost” reports of the Project, that provide information relating to the
construction of the Infrastructure Improvements
and
Traffic and Infrastructure Improvements.
Within
ten (10) Business Days of receipt of a written request from the MC Partners,
the
JV GP will provide the MC Partners with (i) a copy of the portions of MDLP’s
most recent development budget that relate to the MC Components, the ROFR
Components, as applicable, and the Infrastructure Improvements and Traffic
and
Infrastructure Improvements and (ii) such other reports, documents or
information relating to the Infrastructure Improvements and Traffic and
Infrastructure Improvements as the MC Partners shall reasonably
request.
8.3
Participation
in meetings, conferences, etc./Copies of notices, documents, etc./Avoidance
of
duplicative costs.
8.3.1
Notwithstanding anything herein to the contrary, each of the JV GP and the
MC
Partners shall use reasonable efforts to give notice in any manner that is
reasonable under the circumstances to the other party and such other party
shall
have the right to be present at, and participate in, any pre-scheduled
discussions, meetings and other significant and material communications between
the JV GP or the MC Partners (or any of their respective Affiliates) and the
NJSEA or any other Governmental Authority or their representatives
(“Third
Party Discussions”).
It is
the intention of this Section 8.3.1 that each of the JV GP and the MC Partners
shall be afforded the opportunity to fully and meaningfully participate in
the
Third Party Discussions to the extent practical under the relevant
circumstances. In the event that either the JV GP or the MC Partners, as the
case may be, does not or is unable to participate in any such Third Party
Discussion for any reason, the participating party shall make reasonable efforts
to keep the other party apprised of such Third Party Discussions.
Notwithstanding the foregoing, to the extent that any such discussions are
intended to affect the Office/Hotel Component or the Hotel ROFR or Arena ROFR,
the MC Partners shall be provided advance notice of such pre-scheduled
discussions and shall have the right to participate in such discussions and
to
the extent that any such discussions are intended to affect the
Entertainment/Retail Component, the JV GP shall be provided advance notice
of
such pre-scheduled discussions and shall have a right to participate in all
such
discussions; and
34
8.3.2 Notwithstanding
anything herein to the contrary, each of the JV GP and the MC Partners shall,
and shall cause its Affiliates to (and in the case of the JV GP, shall cause
MDLP to), promptly furnish to, or make available to, the other party copies
of
any and all material notices, submissions, settlements, resolutions, schedules,
correspondence, court papers or filings, reports and other material documents
or
written materials (collectively, “Written
Materials”)
received from the NJSEA or any other federal, state or local governmental
authority, agency or instrumentalities (including, the State of New Jersey,
Bergen County or the Borough of East Xxxxxxxxxx) (“Governmental
Authority”)
with
respect to or pertaining to the Project, if the substance of such Written
Materials could materially affect any of the Project. Each of the JV GP and
the
MC Partners shall use reasonable efforts to provide copies of correspondence
from such party to a Governmental Authority concurrently with the delivery
thereof provided, however, that a party shall discharge its duties under this
Section 8.3.2 by making such Written Materials available to the other party
at
the location where the materials are retained. Each of the JV GP and the MC
Partners shall, and shall cause its Affiliates to, use good faith efforts to
promptly disclose to the other party any information of which the party or
any
of its Affiliates has actual knowledge (whether by reason of an oral or written
communication or otherwise) that could have a material adverse effect on any
of
the Project, the MC Component Entities, the Hotel ROFR, the Arena ROFR or the
ROFR Component Entities.
8.4
Compliance
with Authority Agreements/Partnership Defaults.
The
JV GP
shall use commercially reasonable efforts to cause MDLP and the Component
Entities, or, if applicable, the ROFR Component Entities to timely comply with
all of MDLP’s or obligations under any of the Authority Agreements.
9. Reimbursements.
MDLP and the MC Partners hereto will be reimbursed by the applicable MC
Component Entity or, as applicable, the applicable ROFR Component Entity for
such costs and expenses incurred by it in providing predevelopment, development,
pre- and post-development leasing, releasing, marketing, financing, legal (both
in-house and third party) and pre- and post-development tenant coordination
services to any MC Component Entity or, as applicable any ROFR Component Entity
and other services ancillary to the development, ownership and operation of
an
Office/Hotel Component, if and to the extent that such services are to be
provided by MDLP or the MC Partners (rather than by any other Person, pursuant
to contracts or other agreements). Where appropriate, all such costs and
expenses shall be evidenced by contracts or cost invoices.
10. Formation
of Component Entities; Development of Office/Hotel
Components.
10.1 Development
of Office Component and Hotel Component; Formation of Component
Entities.
The
Redevelopment Agreement contemplates that construction of the Hotel Component
and the Office Component (collectively, the “Office/Hotel
Component”)
may
occur as Phase III and Phase IV of the Project, subject to favorable economic
and market conditions as more particularly set forth therein. The MC Partners
shall have the option to develop or cause to be developed the Office/Hotel
Component on the terms and conditions set forth below.
10.1.1 Separate
Development of Entertainment/Retail, Office and Hotel Components; Separate
Ground Leases.
The
Redevelopment Agreement contemplates that the Entertainment/Retail Component,
the Office Component (and the four (4) sub-Components thereof - that is,
Buildings A, B, C and D as defined in the Redevelopment Agreement) and the
Hotel
Component may be developed at different times either by MDLP or by one or more
other entities or a combination thereof (a “Staged
Development”).
The
parties hereto acknowledge and agree that prior to the date hereof, MDLP caused
to be formed each of the Component Entities and, in connection with the
Financial Closing, each of the Component Entities entered into their respective
Ground Lease and Component Agreement whereby MDLP assigned certain of its rights
and obligations to the Component Entities.
10.1.2 Issuance
of Partnership Interests to the MC Partners upon the Exercise of a Take Down;
Conveyance to Office/Hotel Component Upon the Take Down of a
Sub-Component..
Upon the
MC Partners exercise of a Take Down option with respect to an Office/Hotel
Component, MDLP shall cause the applicable MC Component Entity to issue economic
partnership interests in such MC Component Entity to the MC Partners (and/or
an
Affiliate) as more specifically described in Section 10.6. Upon the MC Partners’
exercise of a Take Down option with respect to a sub-Component of the Office
Component (as opposed to the exercise of a Take Down option with respect to
an
entire Office
35
Component),
MDLP shall (i) cause the applicable MC Component Entity to convey the applicable
leasehold estate to a newly-formed partnership in which MDLP (the JV GP, or
an
Affiliate of MDLP or the JV GP) is a partner (a “Sub-Component
Owner”)
and
(ii) cause the applicable Sub-Component Owner to issue economic partnership
interests in such Sub-Component Owner to the MC Partners (and/or an Affiliate
thereof) as more specifically described in Section 10.6
10.1.3 Cooperation.
Each of
the JV GP, MDLP and the MC Partners shall, and shall cause their respective
Affiliates to, provide such cooperation and promptly execute such consents,
agreements and take such other actions as shall be necessary or desirable to
carry out the purpose and intent of this Section 10.
10.2 The
MC Partners Option to Develop Office/Hotel Component.
The MC
Partners shall have the option (the “Office/Hotel
Development Option”)
to (or
to designate one or more of its Affiliates to) be the managing general partner
of the MC Component Entities or the Sub-Component Owner which may Take Down
Phase III and Phase IV or portions thereof in accordance with the Redevelopment
Agreement and to cause the applicable MC Component Entity or Sub-Component
Owner
to Take Down either the Hotel Component or one or more of the sub-Components
of
the Office Component (that is, a portion of the Office Component upon which
an
office building of not less than 440,000 square feet shall be constructed)
pursuant to the exercise of a Take Down option as more specifically described
in
this Section 10; provided, however, that the MC Partners shall be obligated
to
exercise their Take Down option with respect to the Hotel Component upon its
exercise of either the Four Year Office/Hotel Development Option or the Six
Year
Office/Hotel Development Option. MDLP shall substantially complete the
construction of the Traffic and Infrastructure Improvements described in
Sections 3.2(a)(i) through (iv) of the Redevelopment Agreement as required
under the Redevelopment Agreement by the earlier of (A) the Grand Opening
Date, or (B) the date upon which MDLP shall provide a Development
Acceleration Notice. If the Traffic and Infrastructure Improvements described
in
Sections 3.2(a)(i) through (iv) of the Redevelopment Agreement have not been
constructed as required under the Redevelopment Agreement by the date of the
MC
Partners' timely exercise of an Office/Hotel Development Option, then the MC
Partners shall not be obligated to cause the applicable Hotel/Office Component
Owner to Take Down a Component or sub-Component, as applicable, pursuant to
such
exercise of an Office/Hotel Development Option until five (5) business days
after such Traffic and Infrastructure Improvements have been constructed as
required under the Redevelopment Agreement. The MC Partners' Office/Hotel
Development Options shall be exercisable by the MC Partners no later than the
dates set forth in the following schedule:
(i) The
MC
Partners' first Office/Hotel Development Option shall be exercisable by the
MC
Partners no later than the date that is four (4) years after the Grand Opening
Date (hereinafter referred to as the “Four
Year Office/Hotel Development Option”
or
the
“First
Component”).
36
(ii) The
MC
Partners' second Office/Hotel Development Option shall be exercisable by the
MC
Partners no later than the date that is six (6) years after the Grand Opening
Date (hereinafter referred to as the “Six
Year Office/Hotel Development Option”
or
the
“Second
Component”).
(iii) The
MC
Partners' third Office/Hotel Development Option shall be exercisable by the
MC
Partners no later than the date that is eight (8) years after the Grand
Opening Date.
(iv) The
MC
Partners' fourth Office/Hotel Development Option shall be exercisable by the
MC
Partners no later than the date that is nine (9) years after the Grand
Opening Date.
(v) The
MC
Partners' fifth Office/Hotel Development Option shall be exercisable by the
MC
Partners no later than the date that is ten (10) years after the Grand
Opening Date.
In
all
events, the MC Partners shall at their option Take Down all of the Office/Hotel
Components no later than the date that is ten (10) years after the Grand Opening
Date. To the extent that the MC Partners shall have not exercised any one of
its
Office/Hotel Development Options as of the date specified in the above schedule,
the MC Partners shall no longer have any right to Take Down all other subsequent
Components for which it has not exercised an Office/Hotel Development
Option.
10.2.1 The
MC Partners' Election.
If the
MC Partners desire to exercise an Office/Hotel Development Option, the MC
Partners shall provide notice (an “Office/Hotel
Development Election Notice”)
to
MDLP of such desire no later than the date on which such Office/Hotel
Development Option may be exercised (as set forth in Section 10.2) and shall
set
forth in such notice which of the Components it desires to have Taken Down
(e.g., the Hotel Component, an Office Component or one of the sub-Components
of
the Office Component) (the “Applicable
Component”)
and
the proposed Take Down date (each an “Office/Hotel
Election Notice Date”).
Upon
its exercise of an Office/Hotel Development Option, the MC Partners shall have
no obligation to cause the applicable Office/Hotel Component Owner to commence
construction of the Applicable Component until the MC Partners determine in
their sole discretion that certain economic and market conditions as set forth
in the Redevelopment Agreement exist, as applicable, subject to (x) MDLP's
acceleration rights described in Section 10.3, (y) the obligation of
the managing general partner of a ROFR Component Entity under
Section 6.1.2.1 to commence development and construction upon the earlier
of the date required under the applicable ROFR Agreement, if any, and the date
that may be agreed upon by MDLP and the MC Partners and set forth in the
applicable ROFR Component Entity Agreement, and (z) the obligation of the
managing general partner set forth in Section 6.1.2.3 to commence
development and construction upon the earlier of the date required under any
applicable agreement between MDLP and the NJSEA, if any, and the
37
date
that
may be agreed upon by MDLP and the MC Partners and set forth in the applicable
ROFR Component Entity Agreement. If the Applicable Component is the Hotel
Component, then the development contemplated in the Office/Hotel Development
Election Notice shall not be less than 520 rooms and, if the Applicable
Component is the Office Component, the aggregate number of square feet of each
sub-Component of the office buildings in the Office Component being not less
than 440,000 square feet. If, the Applicable Component is an Office Component,
the Office/Hotel Development Election Notice may provide that the Office
Component will be developed in phases (then each of Buildings A through D (as
defined in the Redevelopment Agreement) shall be developed in one or more
phases), such that the aggregate square feet of the office buildings is
approximately 1,760,000, or such lesser amount as required pursuant to zoning
ordinances, approvals and the Redevelopment Agreement. For the avoidance of
doubt, the Hotel Component may not be developed in one or more phases but the
Office Components may be developed in phases as provided herein. Prior to
commencement of construction of the Component or phases (if applicable) or
sub-Component thereof, the MC Partners shall provide to the Office/Hotel
Component Owner (as herein defined), the following which shall include such
reasonable detail and contain such matters as shall be required under the
Redevelopment Agreement:
10.2.1.1 Development
and Operating Budgets.
A
proposed development budget for the construction of the Applicable Component,
such budget to be in substantially the same form as the development budget
of
the JV GP, and a pro forma operating budget for the remainder of the calendar
year following Completion with respect to the Applicable Component and for
the
immediately succeeding calendar year, such budget to be in substantially the
same form as the Operating Budget;
10.2.1.2 Construction
Schedule.
A
construction schedule, setting forth anticipated commencement of construction,
substantial completion and occupancy of each individual building, parking
facility or other material amenity, building or other sub-Component within
the
Office Component (or phases thereof) and the Hotel Component, with commencement
of construction of the Applicable Component or sub-Component occurring no later
than ninety (90) days after the Take Down date set forth in the Office/Hotel
Development Election Notice or on such earlier date as determined in accordance
with Section 10.3.1; and subject to Section 10.6.7.3; and
10.2.1.3 Site
Plans, etc.
Site
plans, architectural renderings and other visual depictions of the MC Partners'
proposed development of the entire Office/Hotel Component or a phase or
sub-Component thereof including such documents as shall be required to be
delivered to the NJSEA for “Master Plan Approval” of the Office/Hotel Component
in accordance with the Redevelopment Agreement.
10.3 MDLP's
Acceleration Right.
10.3.1 MDLP's
Right to Request Acceleration of Commencement Dates of Staged
Development.
MDLP
may request, by written notice to the MC Partners (a “Development
Acceleration Notice”),
that
the date(s) for commencement of development of all or a particular sub-Component
of the Office/Hotel Component occur on a date prior to the applicable dates
set
forth in Section 10.2. Provided that MDLP complies with either or both of
Sections 10.3.1(a) and (b) in connection with the delivery of the Development
Acceleration Notice, MDLP may provide a Development Acceleration Notice to
the
MC Partners at any time after the earlier of: (i) the date upon which MCRC
(or its successor) publicly announces (including in a press release or public
filing that it has no intention in the future of being in the business of
developing office buildings or that MCRC (or its successor) publicly announces
(including in a press release or public filing) that it has no intention in
the
future of developing office buildings in the State of New Jersey; or (ii) (A)
the date that is two (2) years after the Grand Opening Date or (B) the date
immediately subsequent to the date that the MC Partners have delivered an
Office/Hotel Election Notice with respect to the First Component;
(iii) (A) the date that is four (4) years after the Grand Opening Date
or (B) the date immediately subsequent to the date that the MC Partners
have delivered an Office/Hotel Election Notice with respect to the Second
Component; or (iv) no more frequently than every two (2) years after the dates
set forth in (ii) and (iii) above; provided, that MDLP shall have the right
to
accelerate the remaining two (2) Office Components (or sub-Components), at
any
time after the date which is eight (8) years after the Grand Opening
Date.
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(a)
|
Favorable
Economic and Market Conditions.
If MDLP determines that economic and market conditions are favorable
for
the commencement of development of a particular Office/Hotel Component,
phase or sub-Component thereof, as applicable, then MDLP shall provide
a
written notice (a “Market
Development Notice”)
to the MC Partners of such determination. The Market Development
Notice
shall be accompanied by a description of the Applicable Component
or phase
thereof, if applicable, that MDLP has determined should be Taken
Down and
reasonable evidence of favorable economic and market conditions.
The MC
Partners shall have thirty (30) days after receipt of a Market Development
Notice to elect, by written notice to MDLP, to proceed with the Take
Down
on the date specified in the Market Development Notice. If the MC
Partners
provide a written notice of such election to proceed, then the Take
Down
of the particular Office/Hotel Component or phase thereof, if applicable,
shall occur on the date specified in the Market Development Notice.
If the
MC Partners fail to provide a written notice to proceed within such
thirty
(30) day period, then the decision whether to proceed with the Take
Down
on the date specified in the Market Development Notice shall be a
Major
Decision and either party shall have the right to avail itself of
the
provisions of Section 15.
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38
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(b)
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Third
Party Commitment to Finance.
If in connection with a Development Acceleration Notice, MDLP obtains
a
term sheet or written evidence of a provisional commitment (a
“Loan
Commitment”)
from a third party lender proposing to provide financing at market
rates
and upon commercially reasonable terms and conditions (including
but not
limited to loan to value ratios and debt service ratios) to finance
the
development of a particular Office/Hotel Component, phase or sub-Component
thereof, as applicable, prior to the earlier of the applicable date
set
forth in Section 10.2 or the actual date of the Take Down of such
Office/Hotel Component or sub-Component thereof, then MDLP shall
provide a
written notice (a “Loan
Commitment Notice”)
to the MC Partners of such fact. The Loan Commitment shall be non-recourse
and shall not require that an entity guaranty the obligations of
the
borrower thereunder or, if recourse or a guaranty or guaranties shall
be
required, such recourse and/or guaranty or guaranties shall be the
obligation of MDLP or its Affiliates, but not of the MC Partners
or their
Affiliate(s). The Loan Commitment Notice shall be accompanied by
a
description of the applicable Office/Hotel Component, phase or
sub-Component thereof, as applicable, that is the subject of the
Loan
Commitment, a copy of the Loan Commitment and a proposed date of
the Take
Down of the applicable Office/Hotel Component, phase or sub-Component
thereof, as applicable. The MC Partners shall have thirty (30) days
after
receipt of a Loan Commitment or Loan Commitment Notice to elect,
by
written notice to MDLP, to proceed with the Take Down, on the date
specified in the Loan Commitment Notice and have the Office/Hotel
Component Owner negotiate and execute the loan documents pursuant
to the
Loan Commitment. If the MC Partners provide a written notice of such
election to proceed, then the Take Down shall occur on the date specified
in the Loan Commitment Notice (but in no event shall such issuance,
conveyance or assignment of Partnership Interests occur prior to
the date
of loan closing) and the MC Partners shall negotiate and execute
the loan
documents pursuant to the Loan Commitment; provided, however, that
if the
loan fails to close through no fault of the MC Partners, the MC Partners
shall have no obligation to Take Down such Office/Hotel Component
or
sub-Component thereof nor commence development of the applicable
Office/Hotel Component, phase or sub-Component thereof, as a result
of the
delivery of such Development Acceleration Notice by MDLP. If the
MC
Partners fail to provide a written notice to proceed within such
thirty
(30) day period, then the provisions of Section 10.8 shall apply.
Notwithstanding anything herein to the contrary, if the MC Partners
disagree with MDLP as to whether the Loan Commitment meets the terms
and
conditions of this Section 10.3.1(b), the MC Partners shall provide
written notice to MDLP of such disagreement within the thirty (30)
day period above and MDLP or the MC Partners shall have the right
to avail
themselves of the provisions of Section 15. If the resolution of
the
procedures under Section 15 results in a determination that the Loan
Commitment meets the terms and conditions of this Section 10.3.1(b)
and
the Loan Commitment expires or the contemplated loan (or a loan on
comparable terms and conditions is substituted by the MC Partners
at no
additional cost to MDLP if the costs and expenses were paid in connection
with the Loan Commitment) is no longer able to be obtained within
a
reasonable time after the resolution as aforesaid, then the MC Partners
will construct the applicable office building or hotel as provided
herein
or, if the MC Partners fail to so construct as provided herein, then
the
provisions of Section 10.8 shall
apply.
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39
10.4 Office/Hotel
Component Owner Obligated to Pay a Portion of Annual
Payments.
10.4.1
Determination
of Allocated Annual Payments.
The
Office/Hotel Component Owner shall only be obligated to pay the Allocated Annual
Payments with respect to the Component, phase or sub-Component on which it
has
exercised an Office/Hotel Development Option.
(a) Allocated
Annual Payments.
As used
herein, the “Allocated
Annual Payments”
with
respect to the Office/Hotel Component shall be equal to thirty-two percent
(32%)
in the aggregate of (1) any rent (other than any percentage rent payable solely
in connection with the Entertainment/Retail Component) or development rights
fee(s) paid to date other than the Development Rights Fee in connection with
the
Ground Lease and/or a Component Lease, as applicable, (2) all PILOT Payments,
(3) all fees, costs and expenses incurred by MDLP in connection with
litigation (other than the Existing Litigation) relating to the Redevelopment
Agreement or any related agreement (including assertions that the NJSEA did
not
possess the requisite authority to enter into the Redevelopment Agreement or
such related documents), the PILOT Payments or any other litigation pertaining
to all or any portion of the Project, (4) one-half of all fees, costs and
expenses incurred by MDLP in connection with the Existing Litigation and (5)
the
WMB Annual Payment. “Annual
Payments”
shall
mean the aggregate of the amounts set forth in subclauses (1) through (5) of
the
preceding sentence. Notwithstanding that the Development Rights Fee may be
characterized as prepayment of rent or ground rent under a Component Lease,
such
payment of the Development Rights Fee shall not constitute “rent” to be included
in the definition of “Allocated Annual Payments”.
(b) Sub-Allocation
Percentages.
Exhibit
F
annexed
hereto sets forth, in the column entitled “Percentage of Allocated Payments”,
the portions of the Allocated Annual Payments
40
(expressed
as a percentage of the total Annual Payments) to be paid with respect to the
ownership of each Component (such portions, the “Sub-Allocation
Percentages”).
(c) Sub-Allocated
Annual Payments.
Each
Component, phase or sub-Component thereof shall be responsible for the amount
determined by multiplying the applicable Sub-Allocation Percentage by the Annual
Payments (the “Sub-Allocated
Annual Payments”).
Such
responsibility shall commence on the earlier of the Grand Opening Date or
six (6) years from the Development Rights Fee Funding Date.
(d) Obligation
to Pay Allocated Annual Payments.
Once
the MC Partners have provided the Office/Hotel Development Notice and the
Component, phase or sub-Component has been conveyed and/or the partnership
interests in the Component Entity issued, the Office/Hotel Component Owner
shall
be obligated to pay all Allocated Annual Payments that are thereafter due.
If a
Staged Development occurs, each Sub-Allocated Annual Payment shall be payable
from and after the corresponding date of issuance or assignment of partnership
interests in the Component Entity.
(e) Obligations
to Pay Infrastructure Improvement Costs and Program Costs (Sub-Allocated
Infrastructure Improvement Payments).
Notwithstanding anything herein to the contrary, each Component, phase or
sub-Component thereof shall be responsible (in proportion to their respective
Sub-Allocation Percentages) for any and all Infrastructure Improvement Costs
and
Program Costs (other than Exclusive Office/Hotel Infrastructure Improvement
Costs), up to but not in excess of $160,000,000, that has been incurred and
paid
by the JV GP, MDLP or any of the Component Entities (“Sub-Allocated
Infrastructure Improvement Payments”).
MDLP
may finance Infrastructure Improvement Costs and Program Costs through (i)
bond
debt or other public financing vehicle(s) on the terms and conditions set forth
in Section 13.1.16 (“Public
Debt”),
(ii)
if public financing is not available or obtained by JV GP or MDLP, the issuance
of an Infrastructure Loan, or (iii) to the extent that any portion of the
Infrastructure Improvement Costs and Program Costs cannot be financed by Public
Debt, a combination of (i) and (ii) above. If JV GP, MDLP or any of the
Component Entities (other than the MC Component Entities) obtained public
financing to pay for the Infrastructure Improvement Costs, the Sub-Allocated
Infrastructure Improvement Payments shall include any and all principal payments
and interest payments made under such financing. If JV
41
GP,
MDLP
or any of the Component Entities (other than the MC Component Entities) do
not
obtain public financing or non-affiliated third party financing to pay for
the
Infrastructure Improvement Costs and Program Costs, the Sub-Allocated
Infrastructure Improvement Payments shall not be added to Sub-Allocated Prepaid
Annual Payments upon a Take Down as provided in Section 10.5.2.
(f) Obligations
to Pay Exclusive Office/Hotel Infrastructure Improvement
Costs.
Notwithstanding anything herein to the contrary, each Component, phase or
sub-Component thereof shall be solely responsible for any and all site specific
costs relating to such Component, phase or sub-Component including all
Infrastructure Improvement Costs and Program Costs associated solely with their
respective Component, site plan approval costs and similar costs, fees and
expenses (the “Exclusive
Office/Hotel Infrastructure Improvement Costs”).
10.5 Determination
of Office/Hotel Value.
The
value (the “Office/Hotel
Value”)
of the
portion of the Development Land upon which Phase III and Phase IV shall be
developed (the “Office/Hotel
Land”)
shall
be the aggregate of the value of the Hotel Land and the value of the Office
Land, determined utilizing the formula hereinafter set forth, plus the
Sub-Allocated Prepaid Annual Payment.
10.5.1 Determination
of Values of Office Land and Hotel Land.
The
value of the portion of the Office/Hotel Land upon which the Hotel Component
shall be constructed (the “Hotel
Land”)
shall
be determined by multiplying $17,500 per hotel room by the number of hotel
rooms
as set forth in the office or hotel Plans and Specifications, and (ii) the
value
of the portion of the Office/Hotel Land upon which the Office Component shall
be
constructed (the “Office
Land”)
shall
be determined by multiplying $30 per buildable square foot by the actual
buildable square footage of the office buildings located on the Office Land.
Beginning in 2012 and annually thereafter, such $17,500 and $30 amounts set
forth in the preceding sentence shall be increased by the percentage increase,
if any, for the CPI (the “CPI
Adjustment”)
for
November of the year (the “New
Year”)
prior
to the current year as compared to the CPI for November of the year prior to
the
New Year. Such amounts shall not be decreased below the applicable amounts
in
effect immediately prior to a calculation of the change in CPI. If a Staged
Development, the Office/Hotel Value as to each stage shall be separately
determined.
10.5.2 Sub-Allocated
Prepaid Annual Payment.
Upon a
Take Down, the Office/Hotel Value shall include a lump sum amount equal to
the
aggregate Sub-Allocated Annual Payments and the Sub-Allocated Infrastructure
Improvement Payments (subject to Section 10.4.1(e)) accrued through the closing
date of such Take Down (such aggregate amount, the “Sub-Allocated
Prepaid
42
Annual
Payment”).
From
and after such date, all future Sub-Allocated Annual Payments shall be payable
as provided in Section 10.4.1(d).
10.6 Issuance
of Partnership Interests Upon the Exercise of a Take
Down.
In
connection with the MC Partners’ exercise of a Take Down option, MDLP shall
cause the applicable MC Component Entity or applicable Sub-Component Owner
to
issue (i) the Special General Partner or its Affiliates a general partnership
interest in such MC Component Entity or Sub-Component Owner in exchange for
the
Special General Partner’s commitment to contribute to the capital of such
Component Entity or Sub-Component Owner the amount described in Sections 10.6.5
and 10.6.6 hereof, and (ii) the MC Partners or their Affiliates a limited
partnership interest in such MC Component Entity or Sub-Component Owner in
exchange for the MC Partners’ commitment to contribute to the capital of such MC
Component Entity or Sub-Component Owner the amount described in Sections 10.6.5
and 10.6.6 hereof, at which time, the MC Partners shall be admitted to such
MC
Component Entity or Sub-Component Owner as partners for tax purposes; and MDLP
and the MC Partners (or one or more of their Affiliates) shall execute a limited
partnership agreement for such MC Component Entity or Sub-Component Owner (each,
a “Office/Hotel
Component LP Agreement”)
substantially in the form of the Original Agreement, modified as
follows:
10.6.1 The
Office/Hotel Component LP Agreement(s) shall reflect that the property leased
is
the Office/Hotel Land or, if a Staged Development, it is the intention of the
partners signatory thereto that the partnership or another partnership formed
as
contemplated herein shall eventually lease the Office/Hotel Land;
10.6.2 The
applicable Office/Hotel Component Owners shall enter into a management agreement
for the management of the Office Component pursuant to a management agreement
substantially in the form of the Management Agreement attached as Exhibit J
to the Original Agreement, appropriately modified to reflect that the asset
that
is subject thereto is an office building and providing for fees payable to
the
manager thereunder (which shall be an Affiliate of the MC Partners) as set
forth
in Exhibit G attached
hereto and, as to the Hotel Component, the Office/Hotel Component LP Agreement
shall provide for an asset management fee and development management fee payable
to the MC Partners as set forth in Exhibit G attached
hereto;
10.6.3 The
initial capital accounts (and Unreturned Partners' Contribution Accounts) of
each of MDLP and the MC Partners in each of the applicable Office/Hotel
Component Owners shall be the amounts determined as provided in Section 10.6.7
below, and the MC Partners’ aggregate Partnership Interest and MDLP's
Partnership Interest in each of the applicable Office/Hotel Component Owners
shall be seventy-five percent (75%) and twenty-five (25%), respectively as
adjusted pursuant to Sections 10.6.6(a) and (b);
43
10.6.4 Each
of
MDLP and the MC Partners shall receive a return on their Unreturned Capital
Contribution Accounts equal to nine percent (9%) per annum, compounded quarterly
but not payable from capital contributions, with such return being paid on
a
pari passu basis in accordance with the amount of their respective Unreturned
Capital Contributions Accounts thereunder and with the return of such capital
to
be paid in accordance with their Partnership Interests described in Section
10.6.3;
10.6.5 The
MC
Partners shall be obligated to contribute all Required Equity as set forth
in
the agreed-upon development budget of the applicable Office/Hotel Component
Owner until such time as the ratio (the “Capital
Ratio”)
of the
MC Partners’ capital accounts to the MDLP capital account is 75:25 and,
thereafter, the MC Partners and MDLP shall be obligated to contribute
seventy-five percent (75%) and twenty-five percent (25%) respectively, of all
Required Equity, pari passu, under the applicable Office/Hotel Component LP
Agreement(s) to the Office/Hotel Component Owner(s) as provided in Section
10.6.6(e);
10.6.6 If,
as of
the date of issuance of the certificate of occupancy for the core and shell
of
an Office Component or the date of opening for business of a Hotel Component,
as
applicable (such date, the “Capital
Ratio Determination Date”),
after
capital accounts are established pursuant to Section 10.6.7 below and after
taking into account all additional capital contributed by MDLP and the MC
Partner as Required Equity in the applicable Office/Hotel Component Owner(s),
the Capital Ratio is not 75:25, then the following shall occur:
(a) The
MC
Partners shall contribute capital to the applicable Office/Hotel Component
Owner
within thirty (30) days of the Capital Ratio Determination Date in an amount
such that, after such contribution and the distribution described in this
Section 10.6.6(a), the Capital Ratio shall be at least 65:35 but not more than
75:25 and, in such event, the applicable Office/Hotel Component Owner shall
make
a distribution to MDLP as a return of MDLP capital in an amount equivalent
to
the MC Partners’ capital contributions;
(b) If,
after
the contribution of capital as described in Section 10.6.6(a) hereof, the
Capital Ratio is less than 75:25 (but at least 65:35), then MDLP may elect
that
either the action described in Section 10.6.6(b)(i) below occur or the action
described in Section 10.6.6(b)(ii) below occur:
(i) MDLP’s
Partnership Interest in the applicable Office/Hotel Component Owner shall be
increased, and the MC Partners’ Partnership Interest in the applicable
Office/Hotel Component Owner shall be decreased, so that their Partnership
Interests are in proportion to the Capital Ratio, or
44
(ii) MDLP’s
Partnership Interest in the applicable Office/Hotel Component Owner and the
MC
Partners’ Partnership Interest shall not be adjusted and all Super-Priority
Capital shall receive a preferred return equal to nine percent (9%) per annum,
compounded quarterly, on, and a return of, such capital, prior to the return
on
or of any other capital under the Office/Hotel Component LP Agreement. In the
alternative to receiving such a return on the Super-Priority Capital, MDLP
may
elect that a portion of MDLP’s capital equal to the Super-Priority Capital be
converted into a loan in the amount of the Super-Priority Capital, with interest
thereon at nine percent (9%) per annum, compounded quarterly, which loan shall
be repaid prior to any Partner Loans (as such term shall be defined in the
Office/Hotel Component LP Agreement) and any return of or on capital. As used
herein the “Super-Priority
Capital”
shall
mean the portion of MDLP’s capital that is in excess of the amount of capital
necessary to result in the Capital Ratio being 75:25.
(c) Thereafter,
the MC Partners and MDLP shall be obligated to contribute any additional
Required Equity in the ratio of their respective Partnership Interests in the
applicable Office/Hotel Component Owner, as such Partnership Interests were
adjusted as provided in Section 10.6.6(b)(i); and
(d) Thereafter,
each future Office/Hotel Component LP Agreement:
(i) shall
provide for the Partnership Interests of the MC Partners and MDLP to be 75:25
as
provided in Section 10.6.3; and
(ii) shall
provide that if, after the occurrence of the Capital Ratio Determination Date
applicable to the Office/Hotel Component Owner, the ratio of the MC Partners’
capital accounts to MDLP’s capital account is less than the ratio of the
partner’s Partnership Interests, then the MC Partners shall be obligated to
contribute capital to the Office/Hotel Component Owner, and the adjustment
of
Partnership Interests or allocation of a portion of the JV GP’s capital to
Super-Priority Capital shall occur in a substantially similar manner as
described in Section 10.6.6(b);
45
(e) After
the
Capital Ratio becomes 75:25 as aforesaid, then each of the MC Partners and
MDLP
shall be obligated to contribute Required Equity, pari passu, based on the
ratio
of their respective Partnership Interests;
(f) The
MC
Partners’ “Required Equity” in any Office Component or Hotel Component shall not
exceed forty percent (40%) of the “Net
Project Costs”
contemplated in the applicable development budget of such Office Component
or
Hotel Component.
(g) MDLP
shall be a special general partner and receive rights to participate in Major
Decisions as described in Section 13; and
(h) If
the MC
Partners exercises the drag along rights that will be incorporated into the
Office/Hotel Component LP Agreement, which terms shall be substantially similar
to Section 11.3 of the Original Agreement, MDLP shall continue to the have
rights and obligations respecting the development and ownership of the remaining
Office/Hotel Components as set forth in this Section 10.
10.6.7 Establishment
of Capital Accounts in Office/Hotel Component Owner.
Upon a
Take Down, the capital accounts of MDLP and the MC Partners in the applicable
Office Hotel Component Owner shall be determined in the following
manner:
10.6.7.1 Effective
upon a Take Down and the issuance of the partnership interests in the applicable
Office/Hotel Component Owner to the MC Partners (or their Affiliates) in
exchange for the commitments to contribute capital as described in Section
10.6.5 and 10.6.6 hereof, MDLP shall be deemed to have contributed the
applicable Office/Hotel Land to the capital of the applicable Office/Hotel
Component Owner based on the applicable Office/Hotel Value. Ninety-nine percent
(99%) of such value determined will initially be credited to MDLP’s capital
account and Unreturned MDLP Capital Contributions Account and one percent (1%)
of such value will be credited to the MC Partners’ (or their Affiliates’)
capital account and Unreturned MC Partner Capital Contributions Account;
provided, however, that any amounts attributable to any Sub-Allocated Prepaid
Annual Payment shall be credited to the party that, (i) if such Sub-Allocated
Prepaid Annual Payment was subject to financing, paid any debt service
(principal and interest) with respect to such financed amounts from its own
funds or (ii) paid any such Sub-Allocated Prepaid Annual Payment from its own
funds.
46
10.6.7.2 If
the
applicable Office/Hotel Value is less than the actual fair market value of
the
applicable Office/Hotel Land (and related assets) as determined by MDLP (the
“Actual
Office/Hotel Value”),
then
the difference between the applicable Actual Office/Hotel Value and the
applicable Office/Hotel Value will be credited to the partners’ capital accounts
and Unreturned Partners Contributions Accounts as follows: seventy-five percent
(75%) of such difference will be credited to the MC Partners’ (or their
Affiliates’) capital account and Unreturned MC Partner Capital Contributions
Account, and twenty-five percent (25%) of such difference will be credited
to
MDLP’s capital account and Unreturned MDLP Capital Contributions
Account.
10.6.7.3 If
the
applicable Office/Hotel Component Owner fails to commence construction within
ninety (90) days of the date of the closing of the MC Partners’ applicable Take
Down, the MC Partners shall be obligated to contribute capital to the
Office/Hotel Component Owner within such ninety (90) day period in an amount
that, after such contribution and the distribution described in this Section
10.6.7.3, the Capital Ratio shall be 75:25 and, in such event, the Office/Hotel
Component Owner shall make a distribution to MDLP as a return of MDLP’s capital
in an amount equivalent to the MC Partners’ contribution. If the MC Partners
fail to contribute the capital (a “Office/Hotel
Funding Default”)
in
accordance with the preceding sentence, then MDLP may provide written notice
to
the MC Partners of such Office/Hotel Funding Default (an “Office/Hotel
Funding Default Notice”).
If
the MC Partners shall fail to fund such Required Equity within ten (10) business
days after the date of delivery of the Office/Hotel Funding Default Notice,
then
MDLP shall designate a replacement managing general partner of the Office/Hotel
Component Owner (which may include itself). Upon the occurrence of an
Office/Hotel Funding Default and the MC Partners’ failure to cure such default,
the respective Partnership Interests of the MC Partners and MDLP in the
Office/Hotel Component Owner shall be determined in accordance with their
capital accounts in such Office/Hotel Component Owner as such capital accounts
are determined as provided in Section 10.6.7.2 hereof. MDLP, as replacement
managing general partner of the Office/Hotel Component Owner, may determine
in
its sole discretion whether to develop such Office/Hotel Component or sell
such
Office/Hotel Component, except that in the event of a sale the provisions of
Section 10.7.2 shall not apply.
10.6.7.4 Any
amounts allocable to an Office/Hotel Component Owner for Prepaid Rent
Allocations shall not be credited to the Unreturned Capital Contributions
Accounts.
47
10.6.7.5 Notwithstanding
anything herein to the contrary, MDLP and the MC Partners agree, that if the
JV
GP shall fail to timely pay the Principal Amount of the MC Note to the MC
Partners on the Maturity Date, then the MC Partners’ Partnership Interest in
each Office/Hotel Component Owner shall be eighty percent (80%) rather than
seventy-five percent (75%) and MDLP’s Partnership Interest in each Office/Hotel
Component Owner shall be twenty percent (20%) rather than twenty-five percent
(25%) and the Capital Ratio shall be 80:20 rather than 75:25 (and the credits
to
the accounts described in Section 10.6.7.2 hereof shall be in an 80:20 ratio
rather than the 75:25 ratio). The foregoing adjustment to the Partnership
Interests and the Capital Ratio shall not relieve the JV GP from its obligation
to pay the Principal Amount of the MC Note.
10.6.7.6 Upon
a
Take Down, (i) the capital accounts of the partners in the applicable
Office/Hotel Component Owner shall be maintained in accordance with the Code
Section 704(b) and the regulations thereunder, and (ii) all allocations of
income, gain, loss and treasury deduction that are capable of having economic
effect for federal income tax purposes shall have substantial economic effect
within the meaning of Code Section 704(b), and the Treasury Regulations
promulgated thereunder and shall be “fractions rule” compliant within the
meaning of Section 514(c)(9) of the Code and the Treasury Regulations, unless
otherwise reasonably determined by MDLP in its sole discretion.
10.6.8 After
the
occurrence of the matters and execution of the documents set forth in Sections
10.5 through 10.6.7.6, then the closing of the Take Down shall occur on a date
not later than thirty (30) days after the date of such Take Down, as
follows:
10.6.8.1 MDLP
shall cause the Office/Hotel Component Owner to issue to (i) the Special General
Partner and/or its designated Affiliate a general partnership interest in the
Office/Hotel Component Owner and (ii) the MC Partners and/or their designated
Affiliate a limited partnership interest in the Office/Hotel Component Owner.
MDLP shall cause the Office/Hotel Component Owner to convert GP LLC’s managing
general partnership interest in the Office/Hotel Component Owner to a special
general partnership interest;
10.6.8.2 MDLP
shall, and it shall cause GP LLC and the Office/Hotel Component Owner to,
execute such documents as shall be reasonably necessary to issue the partners’
Partnership Interests in the Office/Hotel Component Owner;
10.6.8.3 The
applicable Office/Hotel Component Owner shall represent and warrant that the
Partnership Interests have not been sold,
48
assigned,
transferred, encumbered, pledged or hypothecated, and (iii) the interests
are free and clear of any lien, claim or encumbrance;
10.6.8.4 GP
LLC
and the MC Partners or their Affiliates will file and amendment to the
certificate of limited partnership of the Office/Hotel Component Owner
reflecting the admission of the MC Partners or their Affiliates, as the case
may
be, as a new general partner of the Office/Hotel Component Owner;
10.6.8.5 Intentionally
omitted;
10.6.8.6 The
NJSEA, MDLP and the Office/Hotel Component Owner shall enter into such
agreements as shall be necessary to:
(a) Intentionally
omitted;
(b) Intentionally
omitted;
(c) Result
in
MDLP and such Component being released from all responsibilities, duties and
obligations related to the Office/Hotel Component under the Redevelopment
Agreement, the Ground Lease and all related agreements including all
Infrastructure Improvements and Traffic and Infrastructure Improvements
associated with the Office/Hotel Component and the Office/Hotel Component,
or
phase thereof, is released from all responsibilities, duties and obligations
related to the Entertainment/Retail Component Ground Lease and all related
agreements including all Infrastructure Improvements and Traffic and
Infrastructure Improvements associated with the Entertainment/Retail
Component;
(d) Result
in
agreements between MDLP and the Office/Hotel Component Owner allocating and
assigning the entire obligation respecting the Office/Hotel Component due under
the NJSEA Profit Participation to the owner(s) of the Office/Hotel Component,
as
the case may be;
(e) Obtain
such consents and approvals from the NJSEA and other third parties as shall
be
required to effectuate such issuance and other matters required under this
Section 10.6.8 (including estoppel certificates);
(f) Create
such mutual reciprocal easements and covenants to permit the Office Component
and Hotel Component to operate within the Project as contemplated in the
Conceptual Site Plan if not already created; and
49
(g) Execute
an agreement providing for indemnification from the Office/Hotel Component
Owner
and the Entertainment/Retail Component, as the case may be, respecting any
matters for which a release or a consent or a separate, several allocation
of
obligations was not obtained as provided above and respecting a failure of
the
Office/Hotel Component (or phase or sub-Component thereof) or the
Entertainment/Retail Component to comply with its payment obligations as
provided above; and
(h) Execute
the Office/Hotel Component LP Agreement, requiring, among other things, the
capital contributions by the MC Partners, as more particularly described
herein.
10.7 Failure
of the MC Partners to Make Election.
If the
MC Partners fail to provide an Office/Hotel Development Election Notice on
or
before the Office/Hotel Election Notice Date, then (i) the MC Partners shall
be
deemed to have irrevocably waived all rights under Section 10.2.1 including
all
rights to be the managing general partner of the MC Component Entity or MC
Component Entities that develop Phase III and Phase IV, and (ii) thereafter,
MDLP shall have the sole discretion (consistent with the Redevelopment
Agreement) to determine whether any MC Component Entity should retain and
develop all or any sub-Component of the Office Component or the Hotel Component
or sell the Office Component or Hotel Component to a third party (which may
be a
Joint Venture (hereinafter defined)) and/or seek other development partners.
If
MDLP elects to retain and develop all or any sub-Component as aforesaid, the
applicable property may be developed by an entity owned by MDLP, JV GP and/or
one of their Affiliates (or MDLP and the MC Partners if the MC Partners make
a
Partnership Election as defined and described in Section 10.7.3 below) or by
a
partnership, or other joint venture entity between a third party and MDLP,
JV GP
and/or one of their Affiliates (or MDLP and the MC Partners if the MC Partners
and/or one of their Affiliates elect to be a partner as provided in Section
10.7.3 below) (a “Joint
Venture”)
to
develop all or a portion of the Hotel Component, the Office Component or any
sub-Component thereof, or any combination of the foregoing. If the MC Partners
do not make a Partnership Election pursuant to Section 10.7.3, then Special
General Partner’s non-economic partnership interest in the applicable MC
Component Entity shall automatically terminate, and Special General Partner
shall no longer be a general partner of such MC Component Entity.
10.7.1 Sale
of Hotel Component or Office Component.
If MDLP
shall elect to sell all or any sub-Component, as applicable, of the Office
Component or the Hotel Component, then MDLP shall have the right to determine
the terms and conditions upon which such purchase and sale transaction shall
be
consummated subject to Section 10.7.2.
50
10.7.2 Purchase
Price Floor.
The
purchase price (in the case of a sale) or the deemed value of the particular
portion of the Office/Hotel Land (in the case of the Joint Venture) conveyed
by
any MC Component in accordance with this Section 10.7 must be equal to or exceed
ninety-five percent (95%) of the Office/Hotel Value of the particular Component,
phase or sub-Component thereof, as applicable. If the purchase price is less
than ninety-five percent (95%) of the applicable Office/Hotel Value, then MDLP
shall provide written notice (a “Reoffer
Notice”)
to the
MC Partners. The MC Partners shall have the right, to be exercised by written
notice (a “Reoffer
Acceptance Notice”)
to
MDLP not later than thirty (30) days after the MC Partners’ receipt of the
Reoffer Notice, to Take Down the Office/Hotel Component utilizing an
Office/Hotel Value equal to the purchase price set forth in the Reoffer Notice.
If the MC Partners provide a Reoffer Acceptance Notice, then (i) the Applicable
Component, phase or sub-Component thereof shall be Taken Down within ten (10)
days of MDLP’s receipt of the Reoffer Acceptance Notice, and (ii) the
Office/Hotel Value to be used in connection with such issuance for purposes
of
determining the initial capital of MDLP and the MC Partners in accordance with
Section 10.6.7 shall be the purchase price set forth in the Reoffer Notice
and
all other provisions of this Section 10 applicable to a Take Down by the MC
Partners shall apply. If a Reoffer Acceptance is not provided within such thirty
(30) day period, MDLP may proceed with the transaction as set forth within
the
Reoffer Notice.
10.7.3 Formation
of Joint Venture to Develop Office/Hotel Component.
If MDLP
shall elect to develop all or any portion of the Office/Hotel Land as provided
in this Section 10.7, then the MC Partners shall have thirty (30) days after
receipt of written notice from MDLP of such election to either participate
in
such development with MDLP (a “Partnership
Election”)
or not
to participate in such development (an “Opt
Out Election”).
A
failure of the MC Partners to provide a Partnership Election prior to the
expiration of such thirty (30) day period shall be deemed to be an Opt Out
Election.
10.7.3.1 If
the MC
Partners make or are deemed to have made an Opt Out Election, then MDLP shall
be
permitted to proceed with the development of the applicable portion of the
Office/Hotel Land as hereinabove contemplated, subject to the provisions of
the
Redevelopment Agreement, Component Lease or Component Agreements, as the case
may be.
51
10.7.3.2 If
the MC
Partners shall make a Partnership Election, then MDLP and the MC Partners shall
execute a limited partnership agreement substantially in the form of the
Original Agreement to govern the applicable Office/Hotel Component Owner, except
that (1) the MC Partners shall be obligated to fund twenty-five percent (25%)
of
all Required Equity of such limited partnership (the “New
LP”)
and
shall have a twenty-five percent (25%) Partnership Interest, and MDLP shall
be
obligated to fund seventy-five (75%) percent of all Required Equity of New
LP
and shall have a seventy-five percent (75%) Partnership Interest, and (2) if
MDLP has elected that a Joint Venture be formed, then the Office/Hotel Component
Owner shall be such Joint Venture and the Required Equity set forth in subclause
(1) hereof shall refer to the applicable percentages of the total Required
Equity to be paid to such Joint Venture.
10.8 Failure
of the MC Partners to Commence Construction. If,
after
the MC Partners have provided an Office/Hotel Development Election Notice
prior to the Office/Hotel Election Notice Date, the Office/Hotel Component
Owner
fails to commence construction of the Applicable Component on or before the
date
set forth in Section 10.2, or if the MC Partners fail to provide a written
notice to proceed respecting a Loan Commitment Notice within the period for
provision of same pursuant to Section 10.3.1(b), then:
10.8.1 MDLP
may
elect, by written notice to the MC Partners, to become the managing general
partner of the Office/Hotel Component Owner for any Office/Hotel Component
not
yet Taken Down by the MC Partners;
10.8.2 MDLP
may
elect, by written notice to the MC Partners, to become the managing general
partner of the Office/Hotel Component Owner for the particular Office/Hotel
Component; or
10.8.3 As
to
those portions of the Office/Hotel Land not yet Taken Down for which
construction has not yet commenced, MDLP may elect either to continue to develop
the Office/Hotel Land as set forth in the office or hotel Plans and
Specifications (with the MC Partners continuing to have the obligations for
contribution of capital as provided above), or to exercise the rights set forth
in Section 10.7 and all subsections thereof respecting such undeveloped
portions as if the MC Partners shall have failed to provide an Office/Hotel
Development Election Notice respecting all Office/Hotel Components and
sub-Components for which construction has not yet commenced except that the
provisions of Section 10.7.2 shall not apply in such case.
10.9 Failure
of MDLP to Substantially Complete Infrastructure
Improvements.
52
10.9.1 If
the
Traffic and Infrastructure Improvements described in Sections 3.2(a)(i) through
(iv) of the Redevelopment Agreement have not been constructed by the earlier
of
(i) the date that is six (6) years after the Execution Date or (ii) the date
that the MC Partners are required to exercise an Office/Hotel Development
Option, then the MC Partners may provide written notice (an “Infrastructure
Improvement Notice”)
to
MDLP of its failure to timely complete such Traffic and Infrastructure
Improvements and the intent of the MC Partners to complete any such Traffic
and
Infrastructure Improvements. MDLP shall have twenty (20) days from the date
of
receipt of the Infrastructure Improvement Notice to establish in writing (an
“Infrastructure
Improvement Reply Notice”)
to the
satisfaction of the MC Partners, in their sole discretion, that the Traffic
and
Infrastructure Improvements described in Sections 3.2(a)(i) through (iv) of
the
Redevelopment Agreement will be completed within six (6) months of the date
of
the Infrastructure Improvement Notice. If MDLP (i) fails to deliver an
Infrastructure Improvement Reply Notice within such twenty (20) day period
or
(ii) fails to establish to the satisfaction of the MC Partners as provided
in
this Section 10.9.1 that such Traffic and Infrastructure Improvements will
be
completed within six (6) months of the date of the Infrastructure Improvement
Notice, then the MC Partners shall have the exclusive right to complete Traffic
and Infrastructure Improvements described in Sections 3.2(a)(i), which are
necessary for the applicable Office/Hotel Component or the Project by advancing
their own funds through an Office/Hotel Component Owner. The MC Partners shall
commence construction of such Traffic and Infrastructure Improvements as soon
as
reasonably practicable thereafter, but, in no event shall commencement of such
Traffic and Infrastructure Improvements begin more than twelve (12) months
after
the date of the Infrastructure Improvement Notice. MDLP and its Affiliates
shall
cooperate with the MC Partners in connection with the commencement and
completion of the Traffic and Infrastructure Improvements by the MC Partners,
including, without limitation, delivering plans and specifications, if any,
in
its possession relating to such Traffic and Infrastructure Improvements, and
the
MC Partners and/or Special General Partner shall have the right to act on behalf
of MDLP or its Affiliates pursuant to and in accordance with Section 6. Any
funds advanced by the MC Partners pursuant to this Section 10.9 shall first
be
applied to reduce the Unreturned MDLP Capital Contributions Account in the
applicable Office/Hotel Component Owner until such account is reduced to zero
and, thereafter, the MC Partners' shall receive capital account credit for
any
additional funds advanced hereunder (an “MC
Partners’ Account Credit”).
For
the avoidance of doubt, the MC Partners shall not receive MC Partners’ Account
Credit until the Unreturned MDLP Capital Contributions Account is reduced to
zero.
10.9.2 In
the
event that the MC Partners advance funds to an Office/Hotel Component Owner
pursuant to Section 10.9.1, MDLP shall thereafter be obligated to contribute
all
Required Equity (provided, that the Capital Ratio of the Unreturned MC General
Partner Capital Contributions Account to the Unreturned MDLP Capital
Contributions Account is greater than 75:25 (e.g., a Capital Ratio of 95:5)),
until such time as the Capital Ratio of the Unreturned MC General Partner
Capital Contributions Account to the Unreturned MDLP Capital Contributions
Account is 75:25, respectively.
53
10.9.3 In
the
event that the MC Partners advance funds to an Office/Hotel Component Owner
pursuant to Section 10.9.1, and if, as of the Capital Ratio Determination
Date, after capital accounts are established pursuant to Section 10.6.7 and
after taking into account all additional capital contributed by the MC Partners
and MDLP as Required Equity pursuant to Section 10.6 the
Capital Ratio of the Unreturned MC General Partner Capital Contributions Account
to the Unreturned MDLP Capital Contributions Account is greater than 75:25
(e.g., a Capital Ratio of 95:5),
then
the following shall occur:
(a) MDLP
shall contribute capital to the Office/Hotel Component Owner within thirty
(30)
days of the Capital Ratio Determination Date in an amount such that, after
such
contribution and the distribution described in this Section 10.9.3(a), the
Capital Ratio shall be at least 85:15 but not more than 75:25 and, in such
event, the Office/Hotel Component Owner shall make a distribution to the
MC Partners as a return of the MC Partners’ capital in an amount
equivalent to MDLP’s capital contributions;
(b) If,
after
the contribution of capital as described in Section 10.9.3(a), the Capital
Ratio is greater than 75:25 (but at least 85:15), then the MC Partners may
elect
that either the action described in Section 10.9.3(b)(i) occur or the action
described in Section 10.9.3(b)(ii) occur;
(i) the
MC Partners’ Partnership Interest shall be increased, and MDLP’s
Partnership Interest shall be decreased, so that their Partnership Interests
are
in proportion to the Capital Ratio, or
(ii) the
MC Partners’ Partnership Interest and MDLP’s Partnership Interest shall not
be adjusted and all SGP Super-Priority Capital shall receive a preferred return
equal to nine percent (9%) per annum, compounded quarterly, on, and a return
of,
such capital, prior to the return on or of any other capital under the
Office/Hotel Component LP Agreement. In the alternative to receiving such a
return on the SGP Super-Priority Capital, the MC Partners may elect that a
portion of the MC Partners’ capital equal to the SGP Super-Priority Capital
be converted into a loan in the amount of the SGP Super-Priority Capital, with
interest thereon at nine percent (9%) per annum, compounded quarterly, which
loan shall be repaid prior to any Partner Loans and any return of or on capital.
As used herein the “SGP
Super-Priority Capital”
shall
mean the portion of the MC Partners’ capital that is in excess of the
amount of capital necessary to result in the Capital Ratio being
75:25;
54
(c) Thereafter,
the MC Partners and MDLP shall be obligated to contribute any additional
Required Equity in the ratio of their respective Partnership Interests, as
such
Partnership Interests were adjusted as provided in Section
10.9.3(b)(i);
(d) Thereafter,
each future Office/Hotel Component LP Agreement:
(i) shall
provide for the Partnership Interests of the MC Partners and MDLP to be
75:25 as provided in Section 10.6.3; and
(ii) shall
provide that if, after the occurrence of the Capital Ratio Determination Date
applicable to the Component or phases thereof, the ratio of MC Unreturned
Capital Contributions Account to MDLP Unreturned Capital Contributions Account
is greater than the ratio of the partner’s Partnership Interests, then MDLP
shall be obligated to contribute capital to the Component Owner, and the
adjustment of Partnership Interests or allocation of a portion of the
MC Partners’ capital to Super-Priority Capital shall occur in a
substantially similar manner as described in Section 10.9.3(b); and
(e) After
the
Capital Ratio becomes 75:25 as aforesaid, then each of the MC Partners and
MDLP shall be obligated to contribute Required Equity, pari passu, based on
the
ratio of their respective Partnership Interests.
11. No
Contracts with Affiliates.
Upon a Take Down of an Office/Hotel Component or the exercise of a ROFR, the
limited partnership agreement of the applicable Office/Hotel Component Owner
or
of the ROFR Component Entity shall provide that such Office/Hotel Component
Owner and its partners or such ROFR Component Entity and its partners shall
not
enter into any agreement or other arrangement for the furnishing to or by such
Office/Hotel Component Owner or such ROFR Component Entity of goods or services
or leases, subleases, licenses, concessions or other agreements with any Person
who is an Affiliate of the Partners of such Office/Hotel Component Owner or
such
ROFR Component Entity unless goods or services are provided to such Office/Hotel
Component Owner or such Component Entity or such lease or other payments are
at
market rates of compensation and the terms and conditions thereof are approved
by then managing general partner of such Office/Hotel Component Owner or such
ROFR Component Entity.
55
12. Use
of the
Marks.
In
connection with the Restructuring, MDLP, certain of the Component Entities
and
other signatories thereto entered into the License Agreement to provide for
the
use of the Marks, without a fee, by each of the signatories to the License
Agreement. As soon as practicable after the formation of each ROFR Component
Entity, MDLP shall enter into a license agreement on substantially the same
terms as the License Agreement.
12.1 No
Use of Related Xxxx.
Neither
the MC Partners, their Affiliates nor any owner or user of the Project
shall be permitted to use the word “Xanadu” in any manner except as provided in
the License Agreement.
12.2 Use
of MC Partners’ Name.
The
MC Partners and their Affiliates shall in their sole discretion determine
whether to permit the use of their names in connection with the Project or
MDLP.
The JV GP and its Affiliates acknowledge and agree that the name of the MC
Partners and any of their Affiliates may not be used by the JV GP, any of its
Affiliates or MDLP in connection with the Project or MDLP without the prior
written consent of the MC Partners; provided, that GP LLC and each of the
Component Entities shall be permitted to use the word “Xxxx-Xxxx” in their name.
Notwithstanding the foregoing, certain Affiliates of Kan Am US, Inc. and Colony
Investors VII, L.P. may use the names of the MC Partners or their Affiliates
in
connection with offering materials related to project reports to Kan Am US,
Inc.
investors and to Colony investors and certain other communications. The MC
Partners agrees to such use, subject to the MC Partners being offered a
reasonable opportunity to approve the proposed uses.
56
13. MC
Partners’ Consent Rights.
MDLP, the JV GP and GP LLC shall not take the following decisions (each a
“Major
Decision”)
without the prior written approvals as specified below. In the event of a
failure to agree on a matter set forth in this Section 13, the matter shall
be
submitted to mediation and/or arbitration in accordance with Section 15 of
this
Agreement. Immediately following the exercise by MDLP of a ROFR, pursuant to,
and in accordance with, Section 6 hereof, each of the following Major Decisions
shall apply to the applicable ROFR Component Entity, with equal force and
effect, as if such ROFR Component Entity were, itself, an MC Component Entity.
13.1 The
following decisions or acts with respect to, or on the part of, MDLP, the JV
GP
or GP LLC shall require the prior written Approval of the Parties, which
Approval may not be unreasonably withheld, delayed or conditioned by a party.
If
MDLP, the JV GP or GP LLC (directly or through its authorized representative
in
accordance with Section 8.1.1) shall request that the MC Partners provide such
written approval, the MC Partners (directly or through its authorized
representatives in accordance with Section 8.1.1) shall have ten (10) Business
Days after receipt of a written request from the JV GP or MDLP to grant or
deny
such approval provided that the MC Partners shall have received information
as
reasonably required to render such decision. A failure of the MC Partners to
provide such written approval or denial within such ten (10) business day period
shall be deemed to mean that the MC Partners shall have granted such written
approval):
57
13.1.1 Any
amendment to the Office/Hotel Component LP Agreement or, as applicable, any
ROFR
Component Entity Agreement or other organizational documents of any MC Component
or, as applicable, ROFR Component;
13.1.2 Except
for the transfers or issuances of partnership interests in connection with
the
Hotel Component, Office Component or, as applicable, a ROFR Component
contemplated by and in accordance with this Agreement and/or the Redevelopment
Agreement, any sale, transfer or disposition of any MC Component Entity or,
as
applicable, ROFR Component when formed;
13.1.3 Entering
into, or undertaking of, any agreement, transaction or action relating to the
Project that (a) is not within the scope of this Agreement or the Original
Agreement (including the purposes set forth in Section 3.1 of the Original
Agreement), or (b) is not contemplated by or within the scope of the Transaction
Documents, or (c) is not related to the ownership, operation or management
of
any portion of the Project as contemplated by this Agreement and the Transaction
Documents, in each case, if such action or undertaking would have an adverse
effect on the Office/Hotel Component;
13.1.4 Adjusting,
settling or compromising any claim, obligation, debt, demand, suit or judgment
against or on behalf of MDLP, any Component Entity or, as applicable, any ROFR
Component Entity, but only if and to the extent such adjustment, settlement
or
compromise would have an adverse effect on the Office/Hotel Component or, as
applicable, a ROFR Component;
13.1.5 Establishing
or adjusting the gross asset value for any contributed or distributed asset
(other than cash) to or from the MC Component Entities or, as applicable, the
ROFR Component Entities other than the Office/Hotel Land when formed, except
as
provided herein;
13.1.6 Entering
into any amendment to, or modification of, the Redevelopment Agreement, the
Project Operating Agreement, the Construction Management Agreement, the
Declaration, the Project Labor Agreement, the Ground Leases, the Right of Entry
Agreement, the Access and Indemnity Agreement, the Master Plan, and any other
agreement to be entered into with the NJSEA (any of which, an “Authority
Agreement”
and,
together, the “Authority
Agreements”)
which
is inconsistent with any of the foregoing enumerated instruments but only if
and
to the extent adversely affecting the Office/Hotel Component;
13.1.7 Entering
into any agreement with the Giants or The New York Football Jets that adversely
affects the Office/Hotel Component;
58
13.1.8 Any
transfer, assignment or pledge of the Right of First Refusal pursuant to the
Redevelopment Agreement;
13.1.9 Any
voluntary action or decision which, if undertaken or made, would violate Section
7 hereof;
13.1.10 Preparation
or identification of (and any amendment, modification or revision to), for
submission to the NJSEA, the Final Project Sequencing Plan, Final Traffic and
Infrastructure Sequencing Plan, the Preliminary Traffic and Infrastructure
Improvements (including preparation of the estimated budget to permit, design
and construct the Final Traffic and Infrastructure Improvements), marketing
and
publicity program referred to in Section 3.4(b) of the Redevelopment Agreement
(regarding encouraging the use of the rail system by Project visitors), the
written plan for the Job Skills Training referred to in Section 3.6(a) of the
Redevelopment Agreement, the Small Business Marketing Plan referred to in
Section 3.6(b) of the Redevelopment Agreement, or any other report, document
or
schedule pursuant to any Authority Agreement or the Cooperation Agreement but
only if and to the extent that any of the foregoing actions or documents are
inconsistent with the Authority Agreements or the Cooperation Agreement or
adversely affect the Office/Hotel Component;
13.1.12 Designation
or selection of the Stakeholders Liaison;
13.1.13 Enforcement
or written waiver of any claim or determination related to the assertion of
an
Authority Interference which Authority Interference has an adverse impact on
the
Office/Hotel Component and which assertion occurs prior to four (4) years after
the Grand Opening Date;
13.1.14 Making
any distribution or payment by any MC Component or, as applicable, any ROFR
Component to any Person (including any party hereto or any Affiliate of any
party hereto) that is not expressly contemplated by the Office/Hotel Component
LP Agreement or, as applicable, any ROFR Component Entity
Agreement;
13.1.15 Causing
or permitting MDLP, any MC Component or, as applicable any ROFR Component to
be
in Bankruptcy;
13.1.16 Causing
MDLP or any Component Entity to incur or obtain bond debt or other public
financing vehicle(s) other than bond debt or other public financing vehicle(s)
that is not secured by a mortgage, deed of trust or other security instrument
encumbering the Office/Hotel Land intended to fund land infrastructure costs
and
expenses including, without limitation, onsite and offsite Traffic and
Infrastructure Improvements, parking facilities, as well as a debt service
reserve fund for such loan, capitalized interest and other issuance costs
related to the loan, as described in the Authority Agreements, and having
commercially reasonable terms and conditions at least as favorable as
follows:
59
|
a.
|
Loan
Term:
|
not
less than 10 years;
|
|
|
b.
|
Amortization
Period:
|
not
less than 20 years;
|
|
|
c.
|
Interest
Rate:
|
fixed
rate of not greater than 8.5% per annum or variable rate of LIBOR
plus 300
basis points;
|
|
|
d.
|
Maximum
Net Proceeds:
|
$160,000,000;
|
|
| e. | Office/Hotel Component shall only be responsible on a nonrecourse basis for its proportionate share of the proceeds and such obligations are several; and | ||
| f. |
No
guaranty by the MC Partners or their Affiliates and no substitute
or
additional collateral (for example, a letter of credit) to be provided
by
the MC Partners or their Affiliates.
|
13.1.17 The
granting of any mortgage, deed of trust or other security instrument encumbering
the Office/Hotel Land other than to secure a loan from a third party that
provides for the release of the Office/Hotel Land from the lien of the mortgage,
deed of trust or other security instrument in connection with the Take Down
of
the Office/Hotel Component as contemplated in Section 10 of this Agreement
provided that such release does not require any additional payment of principal
and interest or any payments, including fees or points, other than reimbursement
of reasonable legal fees to effectuate the same.
60
13.1.18 Obtaining
the Approval of the Parties as required by the following provisions of this
Agreement:
|
(i)
|
Definition
of “Consumer Price Index”;
|
|
|
(ii)
|
Section
6.1.2;
|
|
|
(iii)
|
Section
6.1.2.1;
|
|
|
(iv)
|
Section
6.1.3;
|
|
|
(v)
|
Section
6.1.4
|
|
|
(vi)
|
Section
6.1.4.1;
|
|
|
(vii)
|
Section
13.1; and
|
|
|
(viii)
|
Section
13.2.
|
13.2 The
following decisions and acts with respect to, or on the part of, MDLP, any
MC
Component or, as applicable, any ROFR Component shall require the prior written
Approval of the Parties, which approval may be granted or withheld in the JV
GP
or the MC Partners’ sole and absolute discretion. If the JV GP (directly or
through its authorized representative in accordance with Section 8.1.1) shall
request that the MC Partners provide such written approval, the MC Partners
(directly or through its authorized
representatives in accordance with Section 8.1.1) shall have ten (10) Business
Days after receipt of a written request from the JV GP to grant or deny such
approval provided that the MC Partners shall have received information as
reasonably required to render such decision. A failure of the MC Partners to
provide such written approval or denial within such ten (10) Business Day period
shall be deemed to mean that the MC Partners shall have granted such written
approval):
13.2.1 The
undertaking of any of the following acts if and to the extent inconsistent
with
this Agreement, MDLP’s, any MC Component Entity’s or, as applicable, any ROFR
Component Entity’s organizational documents or any of the Authority Agreements
that would: (a) cause any MC Component Entity’s or, as applicable, any ROFR
Component Entity’s dissolution or termination other than contemporaneous with or
subsequent to the sale or other disposition of all or substantially all of
any
MC Component Entity’s or, as applicable, any ROFR Component Entity’s assets, or
(b) cause any MC Component Entity or, as applicable, any ROFR Component Entity
to become an entity other than a “limited partnership” organized under the
Delaware LP Act (including, without limitation, under any conversion
statute);
61
13.2.2 Possessing
any MDLP, MC Component Entity or, as applicable, any ROFR Component Entity
property, or assigning any rights in specific property for other than an entity
purpose;
13.2.3 Except
as
otherwise permitted by any MC Component LP Agreement or, as applicable, ROFR
Component Entity Agreement, admitting or permitting or causing any MC Component
or, as applicable, any ROFR Component Entity to admit new or substitute
partners, causing any MC Component or, as applicable, any ROFR Component Entity
to redeem or repurchase all or any of a partner’s interest, agreeing to issue,
directly or indirectly, any interests in any MC Component or, as applicable,
any
ROFR Component Entity, or granting, issuing or agreeing to grant or issue,
directly or indirectly, any right, option or warrant to subscribe for, purchase,
or otherwise acquire Partnership Interests in any MC Component or, as
applicable, any ROFR Component Entity;
13.2.4 Changing
the name of any MC Component Entity or, as applicable, any ROFR Component Entity
or the name under which any such entity does business from the name(s) set
forth
in such entity’s organizational documents;
13.2.5 Authorizing
or effectuating a merger or consolidation of any of the MC Component Entities
with or into one or more other entities;
13.2.6 Authorizing
or effectuating a dissolution, liquidation, termination or winding up of any
MC
Component Entity or, as applicable, any ROFR Component Entity other than
contemporaneous with or subsequent to a sale or other disposition of all or
substantially all of any such entity’s assets;
62
13.2.7 Making
the election (or otherwise doing anything else) which would result in any MC
Component Entity or, as applicable, any ROFR Component Entity being treated
as
anything other than a “partnership” for federal, state, local and, as
applicable, foreign tax purposes;
13.2.8 Taking
any affirmative action not contemplated in this Agreement with the intent that
the MC Partners shall have personal liability for any of the expenses, debts,
obligations, liabilities, contracts, judgments or other obligations of MDLP,
any
Component Entity or, as applicable, any ROFR Component Entity; and
13.2.9 Development
or construction of any office or hotel within Meadowlands Xanadu.
13.3 The
form
of Office/Hotel Component LP Agreement or, as applicable, any ROFR Component
Entity Agreement to be executed as contemplated in Section 10 of this Agreement
will have separate Major Decisions, which shall include the following and will
conform the MC Partners’ consent rights set forth in Sections 13.1 and 13.2 so
as to apply to the Office/Hotel Component or, as applicable, any ROFR
Component:
13.3.1 Approval
of the operator of the Hotel Component;
13.3.2 Approval
of the management agreement or operating lease with the operator respecting
the
operation of the Hotel Component; and
13.3.3 Adjusting,
settling or compromising any claim, obligation, debt, demand, suit or judgment
against or on behalf of the Office/Hotel Component Owner or, as applicable,
any
ROFR Component Entity in any one Fiscal Year in excess of the greater of (a)
$1,000,000 in the aggregate, or (b) five percent (5%) of stabilized net
operating income of the Office/Hotel Component or, as applicable, ROFR Component
(with such stabilized net operating income being defined to mean the net
operating income for the third full Fiscal Year after Completion shall have
occurred with respect to the entire Office/Hotel Component or, as applicable,
ROFR Component).
14. Allocation
of Administrative Fee Payable to AMX Project Operator Under the AMX Site
Declaration.
Pursuant to Section 2.4.8(x) of the AMX Site Declaration an administrative
fee in the amount of ten percent (10%) of the total of certain items within
an
applicable AMX CAM Budget (as defined in the AMX Site Declaration) shall be
payable to the “AMX Project
Operator”
(as
defined in the AMX Site Declaration). The JV GP and the MC Partners acknowledge
and agree that ERC LP shall act as the AMX Project Operator under the AMX Site
Declaration and that the JV GP shall be permitted, on behalf of the ERC LP,
to
delegate or assign all or a portion of the obligations (and rights) of the
AMX
Project Operator to the Meadowlands Management, LLC or another
Affiliate.
15.
Mediation and Arbitration.
15.1
Unless
otherwise expressly provided herein (including as provided in Section 6.1.2),
it
is understood and agreed by MDLP and the MC Partners that, in the event any
dispute, disagreement, claim or controversy arises between MDLP and the MC
Partners or any of the other parties hereto, arising under or related to this
Agreement or relating to any approvals or agreements required to be given or
made by the parties hereto under this Agreement, including a dispute,
disagreement, claim or controversy in connection with a Major Decision (the
“Disputes”),
then,
at the request of either MDLP or the MC Partners, the disputing parties shall
resolve the Dispute promptly through confidential mediation with a mediator
jointly selected by MDLP and the MC Partners. If MDLP and the MC Partners are
unable to agree on the mediator within two (2) days after written notice from
one disputing party to the other demanding mediation, MDLP and the MC Partners
shall each select one (1) mediator and those two (2) mediators shall jointly
select a third mediator as soon as practicable and such third mediator shall
act
as mediator hereunder. All mediators selected shall be licensed attorneys
experienced in complex real estate and partnership transactions and the tax
consequences thereof. Each party shall bear its own fees and expenses
attributable to the mediation, provided,
however,
that
the costs, fees and expenses attributable to the independent mediator shall
be
borne equally (50/50) between MDLP and the MC Partners.
63
15.2
In
the
event that MDLP and the MC Partners are unable to settle their Dispute through
mediation within ten (10) Business Days after the mediator has been selected
as
provided above, any unresolved Dispute shall be submitted to binding arbitration
in the State of New York, within five (5) Business Days from the date MDLP
and
the MC Partners were unable to settle their dispute through mediation, with
each
party to bear its own fees and expenses attributable thereto, before a panel
of
three (3) neutral arbitrators from the Large Complex Case Panel of the American
Arbitration Association (the “Arbitrators”),
said
Arbitrators to be attorneys with at least ten (10) years experience in complex
real estate and partnership transactions and the tax consequences thereof.
The
arbitration shall be conducted in accordance with the then-current commercial
Arbitration Rules of the American Arbitration Association. The Arbitrators
shall
render their decision within ten (10) Business Days after the Dispute is
submitted to the arbitration panel. In furtherance of the foregoing, it is
understood and agreed that the decision rendered by the Arbitrators hereunder
shall be binding and absolutely conclusive upon the parties hereto and may
be
enforced by entry of a judgment in any court having jurisdiction. The fees
and
expenses of Arbitrators shall be borne equally among the disputing parties.
To
the extent, if any, that the party or parties prevailing in any such arbitration
proceedings are required to seek judicial confirmation or enforcement of the
Arbitrators’ award, the non-prevailing party or parties shall be obligated to
pay for such prevailing party’s or parties’ reasonable and actual fees, costs,
expenses and disbursements. incurred in connection with such judicial
confirmation and/or enforcement. Notwithstanding the foregoing, a party may
seek
a preliminary injunction or other preliminary judicial relief if in its judgment
such action is necessary to avoid irreparable damage. Despite such action,
the
parties hereto will continue to participate in good faith in the procedures
specified in this Section 15. All applicable statutes of limitation shall
be tolled while the procedures specified in this Section 15 are pending.
The parties hereto will take such action, if any, required to effectuate such
tolling.
16.
Brownfields
Remediation Agreement.
The JV GP and the MC Partners anticipate that on or about the First Amendment
Effective Date, MDLP shall enter into that certain Agreement to Reimburse for
Remediation Costs (as amended from time to time, the “Brownfields
Agreement”)
by and
among MDLP, the NJSEA, the Chief Executive Office/Secretary of the New Jersey
Commerce and Economic Growth Commission and the Treasurer of the State of New
Jersey. MDLP and each Component Entity shall be entitled to reimbursement under
the Brownfields Agreement for eligible remediation costs paid in connection
with
the development of the Applicable Component (such reimbursement to be paid
to
the applicable tenant or MDLP as to costs paid by the applicable tenant or
MDLP). MDLP shall provide its reasonable cooperation to obtain such
reimbursement pursuant to the Brownfields Agreement, provided that the
applicable tenant submits necessary documentation as required by the Brownfields
Agreement and reimburses MDLP for any reasonable costs and expenses that MDLP
may incur in connection with providing such cooperation. In furtherance of
the
aforesaid, MDLP shall promptly execute such documents as shall be necessary
in
order that the eligible remediation costs shall be transferred and/or assigned
to the Applicable Component tenant under the Brownfields Agreement.
64
17. WMB
Annual Payment.
MDLP shall pay the WMB Annual Payment to the Conservation Trust for a maximum
time period of seventy-five (75) years, as more particularly provided in the
Conservancy Trust Agreement. Therefore, until no longer payable pursuant to
the
Conservancy Trust Agreement, the WMB Annual Payments shall be included
automatically in the development budget and all subsequent budgets of the JV
GP.
18. Cooperation;
Savings Language.
After the Execution Date, each party hereto shall, from time to time, execute,
acknowledge and deliver such further instruments, in recordable form, if
necessary, and perform such additional acts, as any other party hereto may
reasonably request in writing in order to effectuate the intent of this
Agreement, within thirty (30) days of the request. It is the intent of the
parties hereto that all the rights and benefits appurtenant to, associated
with
and/or otherwise in respect of the A-B Office Site, the C-D Office Site, the
Hotel Site, the ERC Site and the Baseball Site (each for purposes hereof a
“Component
Site”),
respectively, whether inchoate, existing or arising in the future, hereby are
distributed and assigned to the Applicable Component Entity and its successors
and assigns as Ground Tenant pursuant to the applicable Ground Lease. Nothing
herein, however, shall be deemed or construed as requiring any party hereto
to
assist, consult with, coordinate with or otherwise cooperate with any other
party hereto to the extent that such assistance, consultation, coordination
or
other cooperation would reasonably be expected to have a Material Adverse Effect
(as defined in the AMX Site Declaration) on such party hereto or, in the case
of
a Component Entity hereunder, its Component Site.
19. Intentionally
Omitted.
20.
Construction.
In
this Agreement and all other attached Schedules or Exhibits to this Agreement,
unless otherwise expressly indicated or required by the context:
(a)
this
“Agreement” or any other agreement or document shall be construed as a reference
to this Agreement or, as the case may be, such other agreement or document
as
the same may have been, or may from time to time be, amended, varied, notated
or
supplemented;
(b)
references
in this Agreement to any Law shall be construed as a reference to such Law
as
re-enacted, redesigned, amended or extended from time to time prior to the
date
hereof and, unless otherwise specified, references herein or in this Agreement
to any document or agreement shall be deemed to include references to such
document or agreement as amended, varied, supplemented or replaced from time
to
time in accordance with such document’s or agreement’s terms;
(c)
defined
terms in the singular shall include the plural and vice versa, and the
masculine, feminine or neuter gender shall include all genders;
(d)
the
words
“including” or “includes” shall be deemed to mean “including without limitation”
and “including but not limited to” (or “includes without limitation” and
“includes but is not limited to”) regardless of whether the words “without
limitation” or “but not limited to” actually follow the term;
65
(e)
the
words
“hereof,” “herein” and “hereunder” and words of similar import when used in this
Agreement or its Schedules and Exhibits shall refer to this Agreement and its
Schedules and Exhibits as a whole and not to any particular provision hereof
or
thereof, as the case may be;
(f)
any
reference herein to a time of day means the time of day in New York, New York;
and
(g)
reference
to “day” or “days” are to calendar days.
21. No
Broker.
Each party hereto represents that it has not dealt with any agent, broker,
investment banker, finder or other Person acting in a similar capacity in
connection with the transactions contemplated hereby.
22. Survival.
This Agreement shall remain in full force and effect with respect to a
particular MC Component Entity or ROFR Component Entity until such time as
the
Office/Hotel Development Option or ROFR with respect to such entity shall have
expired; provided,
however,
that
this Agreement shall not terminate with respect to any MC Component Entity
for
which a Take Down has been exercised or a ROFR Component Entity for which a
ROFR
has been exercised.
23.
No Sale.
Nothing contained in this paragraph or elsewhere in this Agreement or any
related document is intended to cause any in-kind or other distributions to
be
treated as sales for value.
24. Governing
Law.
Any controversy or claim arising out of or relating to this Agreement shall
be
governed by and construed in accordance with the Laws of the State of New York,
and the parties hereto consent to (i) the jurisdiction of the courts of the
State of New York and the U.S. District Court for the Southern District of
New
York and (ii) service of process and/or summons by certified mail, postage
prepaid, return receipt requested, to such party at the address set forth for
such party in Section 24 below.
25. Notices.
Any notice, consent, approval, or other communication which is provided for
or
required by this Agreement must be in writing and may be delivered in person
to
any party or may be sent by a facsimile transmission, telegram, expedited
courier or registered or certified U.S. mail, with postage prepaid, return
receipt requested. Any such notice or other written communications shall be
deemed received by the party to whom it is sent (i) in the case of personal
delivery, on the date of delivery to the party to whom such notice is addressed
as evidenced by a written receipt signed on behalf of such party, (ii) in the
case of facsimile transmission or telegram, the next Business Day after receipt
of confirmation of such transmission, (iii) in the case of courier delivery,
the
date receipt is acknowledged or rejected by the party to whom such notice is
addressed as evidenced by a written receipt signed on behalf of such party,
and
(iv) in the case of registered or certified mail, the date receipt is
acknowledged or rejected on the return receipt for such notice. For purposes
of
notices, the addresses of the parties hereto shall be as follows, which
addresses may be changed at any time by written notice given in accordance
with
this provision:
66
|
If
to MDLP, the JV GP, JV Holding, GP LLC or a Component
Entity:
|
|
|
x/x
Xxxxxx Xxxxxx, LLC
000
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxx, XX 00000
Attn:
Xxxxxxx Xxxxxxxx
Telephone:
000-000-0000
Facsimile
No.: 000-000-0000
|
|
|
And:
|
x/x
Xxxxxx Xxxxxx, LLC
0000
Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx
Xxxxxxx, XX 00000
Attn:
Xxx Xxxxxxx
Telephone:
000-000-0000
Facsimile
No.: 000-000-0000
|
|
With
a copy to:
(which
shall not constitute notice)
|
|
|
White
& Case LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx, XX 00000-0000
Attn:
Xxxx Xxxxx, Esq.
Attn:
Xxxxx Xxxxxxxx, Esq.
Facsimile
No.: 000- 000-0000
|
|
|
If
to the MC Partners, A-B Office LP, C-D Office LP or Hotel
LP:
|
|
|
c/o
Xxxx-Xxxx Realty Corporation
Xxxx-Xxxx
Realty Corporation
X.X.
Xxx 0000
Xxxxxx,
Xxx Xxxxxx 00000-0000
Attn: Xxxxxxxx
X. Xxxxx, President and
Chief
Executive Officer
Facsimile
No.: 000-000-0000
|
|
|
And:
|
|
|
c/o
Xxxx-Xxxx Realty Corporation
X.X.
Xxx 0000
Xxxxxx,
XX 00000-0000
Attn: Xxxxx
X. Xxxxxx, Executive Vice President and General Counsel
Facsimile
No.: 000-000-0000
|
|
|
For
courier delivery to the
above
notice parties:
|
c/o
Xxxx-Xxxx Realty Corporation
000
Xxxxxxxx Xxxxxx
Xxxxxx,
XX 00000-0000
|
|
With
a copy to:
(which
shall not constitute notice)
|
|
|
Seyfarth
Xxxx LLP
1270
Avenue of the Xxxxxxxx
00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxx X. Xxxxxx, Esq.
Attn:
Xxxxxxx X. Xxxxxxx, Esq.
Facsimile
No.: 000-000-0000
|
67
Failure
of, or delay in delivery of any copy of a notice or other written communication
shall not impair the effectiveness of such notice or written communication
given
to any party to this Agreement as specified herein.
26. Successors
and Assigns.
Subject to the restrictions on transfer in the MC Component LP Agreements,
this
Agreement shall inure to the benefit of and be binding upon (i) the successors
and assigns of the parties hereto and (ii) the successors and assigns of the
parties to any Ground Lease.
27. Amendment;
Waiver.
This Agreement may not be amended, altered, modified or terminated (whether,
in
each case, orally or in writing), unless by an agreement in writing signed
by
all of the parties hereto and no provision of this Agreement may be waived
unless by an agreement in writing signed by the party against whom the waiver
is
sought.
28. Binding
Effect.
This Agreement shall apply to, bind and benefit the personal representatives,
heirs, successors and assigns of the respective parties. This Agreement shall
not benefit or be enforceable by any Person who or which is not a party
hereto.
29. No
Joint Venture.
This Agreement is not intended to and shall not be deemed to create a
partnership, joint venture or any other entity or other relationship whatsoever
between or among any of the parties hereto other than contractual.
30. Inapplicable
Provisions.
In
case any provision of this Agreement shall be invalid, illegal or unenforceable,
then such provision shall be severed from this Agreement and shall be
inoperative, and the parties hereto promptly shall negotiate in good faith
a
lawful, valid and enforceable provision that is as similar to the invalid
provision as may be possible and that preserves the original intentions and
economic positions of the parties hereto as set forth herein to the maximum
extent feasible, while the remaining provisions of this Agreement shall remain
binding on the parties hereto. Without limiting the generality of the foregoing
sentence, in the event a change in any applicable Law makes it unlawful for
a
party hereto to comply with any of its obligations hereunder, the parties hereto
shall negotiate in good faith a modification to such obligation to the extent
necessary to comply with such Law that is as similar in terms to the original
obligation as may be possible while preserving the original intentions and
economic positions of the parties hereto as set forth herein to the maximum
extent feasible.
68
31. Representation
by Counsel; Interpretation.
Each party hereto acknowledges and agrees that: (i) by entering into this
Agreement and agreeing to be bound by the terms and conditions set forth herein,
such party represents and warrants that such party has obtained independent
legal counsel to review this Agreement and all legal documents executed by
such
party in connection herewith, or has knowingly waived such representation;
(ii)
such party and its counsel, as applicable, reviewed and negotiated the terms
and
provisions hereof and have contributed to its revision; (iii) the rule of
construction to the effect that any ambiguities are resolved against the
drafting party shall not be employed in the interpretation hereof; and (iv)
the
terms and provisions hereof shall be construed fairly as to all parties hereto
and not in favor of or against any party, regardless of which party was
generally responsible for the preparation hereof.
32. Headings.
The headings and captions of the various sections and/or paragraphs of this
Agreement are for convenience of reference only and are not to be construed
as
defining or limiting, in any way, the scope or intent of the provisions
hereof.
33. Memorandum
for Recordation.
(a)
A
memorandum of this Agreement (“Memorandum”)
in the
form annexed hereto as Exhibit
H
shall be
recorded in the public records of the County of Bergen, State of New Jersey;
provided,
however,
in no
event shall the Memorandum be recorded against the ERC Site. In the event that
this Agreement is terminated pursuant to the terms hereof, the MC Partners
covenant and agree to promptly take any and all actions reasonably necessary
to
cause the Memorandum to be removed from the public records of the County of
Bergen, State of New Jersey, at their sole cost and expense. The preceding
covenant shall be applicable whether or not the MC Partners have received a
written request regarding the taking of any such action. Each of the MC Partners
hereby designates MDLP and its managing general with full power of substitution,
as each party’s true and lawful attorney to act, and in such party’s name, place
and stead, to make, execute, sign and acknowledge all documents, instruments
to
accomplish the intention of this Section 33(a) at the sole cost and expense
of
the MC Partners as provided in the second sentence hereof.
(b)
Neither the MC Partners nor their Affiliates shall record, or cause to be
recorded, this Agreement, the Memorandum and/or any similar instruments against
all or any portion of the Project Site or with any Governmental Authority,
except to the extent expressly provided in Section 33(a).
34. Counterparts;
Facsimile Signatures.
This Agreement may be executed in two or more counterparts, each of which shall
be deemed to be an original and all of which taken together shall constitute
one
and the same instrument. Furthermore, this Agreement transmitted by facsimile
or
.pdf shall be treated in all manners and respects as an original document and
any signature thereon shall be considered an original signature and shall have
the same binding legal effect as the original document.
69
35. Delays
or Omissions.
No delay or omission to exercise any right, power or remedy accruing to any
party hereto, upon any breach, default or noncompliance by another party hereto
under the this Agreement shall impair any such right, power or remedy, nor
shall
it be construed to be a waiver of any such breach, default or noncompliance,
or
any acquiescence therein, or of or in any similar breach, default or
noncompliance thereafter occurring. Any waiver, permit, consent or approval
of
any kind or character on any party hereto’s part of any breach, default or
noncompliance under this Agreement or any waiver on such party hereto’s part of
any provisions or conditions of this Agreement must be in writing and shall
be
effective only to the extent specifically set forth in such
writing.
36. Expenses.
Except as may otherwise be provided herein, all fees and expenses (including
legal fees, fees and commissions owed to financial advisors and lending sources,
and consulting and accounting fees) incurred by the parties hereto in connection
with this Agreement and the transactions contemplated hereby shall be paid
by
the party hereto incurring such costs and expenses (including legal fees, fees
and commissions owed to financial advisors and lending sources, and consulting
and accounting fees).
37. Entire
Agreement.
This Agreement, the Schedules and Exhibits hereto, and the Redemption Agreement
and the MC Note and any other documents delivered pursuant hereto constitute
the
full and entire understanding and agreement between the parties hereto with
regard to the subject matter hereof and thereof and supersede any and all prior
and contemporaneous agreements or understandings concerning such matters,
whether expressed or implied, written or oral, between the parties hereto with
respect hereto and thereto. No party hereto shall be liable or bound to any
other in any manner by any representations, warranties, covenants and agreements
except as specifically set forth herein or in the Redemption Agreement, the
MC
Note, the MC Component Entity Agreements and the ROFR Component Entity
Agreements.
38. Limitation
on Liability.
No (a) direct or indirect holder of any equity interests or securities of any
party hereto (whether such holder is a limited partner, member, stockholder
or
otherwise) other than any general partner, (b) Affiliate of any party hereto,
or
(c) director, officer, employee, representative or agent of any party hereto,
any of such party hereto’s respective Affiliates or any such direct or indirect
holder of any equity interests or securities of any such party hereto
(collectively, the “party
hereto Affiliates”)
shall
have any liability or obligation of any nature whatsoever in connection with
or
under this Agreement or the transactions contemplated hereby, in each case,
other than as a result of fraud or as may otherwise be contemplated herein,
and
each party hereby waives and releases all claims against such party hereto
Affiliates related to such for any such liability or obligation.
70
39. Specific
Performance.
The parties hereto agree that the remedy at law for any breach of this Agreement
may be inadequate, and that, as among the parties hereto, any party hereto
by
whom this Agreement is enforceable shall be entitled to specific performance
in
addition to any other appropriate relief or remedy. Such party hereto may,
in
its sole discretion, apply to a court of competent jurisdiction for specific
performance or injunctive or such other relief as such court may deem just
and
proper in order to enforce this Agreement as among the parties hereto, or
prevent any violation hereof, and, to the extent permitted by applicable Law,
as
among the parties hereto, each party hereto waives any objection to the
imposition of such relief.
[Remainder
of page intentionally blank; signature page follows.]
71
[signature
page attached to Xxxx-Xxxx Rights, Obligations and Option
Agreement]
IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be executed as of the date set
forth above.
|
MDLP:
|
|
|
MEADOWLANDS
DEVELOPER LIMITED
PARTNERSHIP,
a Delaware limited partnership
|
|
|
By:
Meadowlands Limited Partnership, its general
partner
|
|
|
By:
Colony Xanadu, LLC, its managing
general partner
|
|
|
By: /s/ Xxxx X.
Xxxxx
|
|
|
Name: Xxxx X. Xxxxx
|
|
|
Title:
|
[signature
page continued on next page]
[signature
page attached to Xxxx-Xxxx Rights, Obligations and Option
Agreement]
|
THE
JV GP:
|
|
|
MEADOWLANDS
LIMITED PARTNERSHIP, a
Delaware
limited partnership
|
|
|
By:
Colony
Xanadu, LLC, its managing general
partner
|
|
|
By: /s/
Xxxx X.
Xxxxx
|
|
|
Name: Xxxx
X. Xxxxx
|
|
|
Title:
|
[signature
page continued on next page]
2
[signature
page attached to Xxxx-Xxxx Rights, Obligations and Option
Agreement]
|
JV
HOLDING:
|
|
|
MEADOWLANDS
DEVELOPER HOLDING
CORP.,
a Delaware corporation
|
|
|
By: /s/
Xxxx X.
Xxxxx
|
|
|
Name: Xxxx
X. Xxxxx
|
|
|
Title:
|
[signature
page continued on next page]
3
[signature
page attached to Xxxx-Xxxx Rights, Obligations and Option
Agreement]
|
GP
LLC:
|
|
|
MEADOWLANDS
XXXX-XXXX GP, L.L.C., a
Delaware
limited liability company
|
|
|
By:
Meadowlands
Developer Limited
Partnership, its sole member
|
|
|
By: Meadowlands
Limited
Partnership, its
general partner
|
|
|
By: Colony
Xanadu, LLC, its
managing general partner
|
|
|
By: /s/ Xxxx X.
Xxxxx
|
|
|
Name: Xxxx X.
Xxxxx
|
|
|
Title:
|
[signature
page continued on next page]
4
[signature
page attached to Xxxx-Xxxx Rights, Obligations and Option
Agreement]
|
XXXX-XXXX
SPECIAL:
|
|
|
XXXX-XXXX
MEADOWLANDS SPECIAL L.L.C.,
a
New Jersey limited liability company
|
|
|
By:
Xxxx-Xxxx
Realty, L.P., its sole member
|
|
|
By:
Xxxx-Xxxx
Realty Corporation,
its general partner
|
|
|
By: /s/ Xxxxxxxx X.
Xxxxx
|
|
|
Name: Xxxxxxxx X.
Xxxxx
|
|
|
Title: President and Chief Executive
Officer
|
[signature
page continued on next page]
[signature
page attached to Xxxx-Xxxx Rights, Obligations and Option
Agreement]
|
MC
ENTERTAINMENT:
|
|
|
XXXX-XXXX
MEADOWLANDS ENTERTAINMENT L.L.C., a New Jersey limited
liability
company
|
|
|
By: Xxxx-Xxxx
Realty, L.P., its sole member
|
|
|
By: Xxxx-Xxxx
Realty Corporation,
its general partner
|
|
|
By: /s/ Xxxxxxxx X.
Xxxxx
|
|
|
Name: Xxxxxxxx X.
Xxxxx
|
|
|
Title: President and Chief
Executive Officer
|
[signature
page continued on next page]
2
[signature
page attached to Xxxx-Xxxx Rights, Obligations and Option
Agreement]
|
BASEBALL
LP:
|
|
|
BASEBALL
MEADOWLANDS XXXXX/XXXX-
XXXX LIMITED
PARTNERSHIP, a Delaware
limited
partnership
|
|
|
By:
Meadowlands
Xxxx-Xxxx GP, L.L.C., its general
partner
|
|
|
By: Meadowlands
Developer Limited
Partnership, its sole member
|
|
|
By:
Meadowlands
Limited
Partnership,
its general partner
|
|
|
By: Colony
Xanadu, LLC, its
managing general partner
|
|
|
By: /s/ Xxxx X.
Xxxxx
|
|
|
Name: Xxxx X.
Xxxxx
|
|
|
Title:
|
[signature
page continued on next page]
3
[signature
page attached to Xxxx-Xxxx Rights, Obligations and Option
Agreement]
|
A-B
OFFICE LP:
|
|
|
A-B
OFFICE MEADOWLANDS XXXX-XXXX
LIMITED
PARTNERSHIP, a Delaware limited
partnership
|
|
|
By:
Meadowlands
Xxxx-Xxxx GP, L.L.C., its general
partner
|
|
|
By: Meadowlands
Developer Limited
Partnership, its sole member
|
|
|
By:
Meadowlands
Limited
Partnership,
its general partner
|
|
|
By: Colony
Xanadu, LLC, its
managing general partner
|
|
|
By: /s/ Xxxx X.
Xxxxx
|
|
|
Name: Xxxx X.
Xxxxx
|
|
|
Title:
|
[signature
page continued on next page]
4
[signature
page attached to Xxxx-Xxxx Rights, Obligations and Option
Agreement]
|
C-D
OFFICE LP:
|
|
|
C-D
OFFICE MEADOWLANDS XXXX-XXXX
LIMITED
PARTNERSHIP, a Delaware limited
partnership
|
|
|
By:
Meadowlands
Xxxx-Xxxx GP, L.L.C., its general
partner
|
|
|
By: Meadowlands
Developer Limited
Partnership, its sole member
|
|
|
By:
Meadowlands
Limited
Partnership,
its general partner
|
|
|
By: Colony
Xanadu, LLC, its
managing general partner
|
|
|
By: /s/ Xxxx X.
Xxxxx
|
|
|
Name: Xxxx X.
Xxxxx
|
|
|
Title:
|
[signature
page continued on next page]
5
[signature
page attached to Xxxx-Xxxx Rights, Obligations and Option
Agreement]
|
HOTEL
LP:
|
|
|
HOTEL
MEADOWLANDS XXXX-XXXX
LIMITED
PARTNERSHIP, a Delaware limited
partnership
|
|
|
By:
Meadowlands
Xxxx-Xxxx GP, L.L.C., its general
partner
|
|
|
By: Meadowlands
Developer Limited
Partnership, its sole member
|
|
|
By:
Meadowlands
Limited
Partnership,
its general partner
|
|
|
By: Colony
Xanadu, LLC, its
managing general partner
|
|
|
By: /s/ Xxxx X.
Xxxxx
|
|
|
Name: Xxxx X.
Xxxxx
|
|
|
Title:
|
[signature
page continued on next page]
6
[signature
page attached to Xxxx-Xxxx Rights, Obligations and Option
Agreement]
|
ERC
LP:
|
|
|
ERC
MEADOWLANDS XXXXX/XXXX-XXXX
LIMITED
PARTNERSHIP, a Delaware limited
partnership
|
|
|
By:
Meadowlands
Xxxx-Xxxx GP, L.L.C., its general
partner
|
|
|
By: Meadowlands
Developer Limited
Partnership, its sole member
|
|
|
By:
Meadowlands
Limited
Partnership,
its general partner
|
|
|
By: Colony
Xanadu, LLC, its
managing general partner
|
|
|
By: /s/ Xxxx X.
Xxxxx
|
|
|
Name: Xxxx X.
Xxxxx
|
|
|
Title:
|
7
EXHIBIT
B
PREPAID
RENT ALLOCATION
|
Ground
Lease
|
Allocation
of Development Rights Fee
to
Prepaid Rent under Ground
Lease
|
|
ERC
Ground Lease
|
$101,200,000
|
|
Baseball
Ground Lease
|
$7,600,000
|
|
Hotel
Ground Lease
|
$8,480,000
|
|
A-B
Ground Lease
|
$21,360,000
|
|
C-D
Ground Lease
|
$21,360,000
|
8
EXHIBIT
D
EXISTING
LITIGATION
The
following are cases that are consolidated for resolution in the Appellate
Division of the Superior Court of New Jersey:
| 1. |
Xxxxx
Mountain Industries v. N.J. Sports and Exposition Authority, The
Xxxxx
Corporation, and Xxxx-Xxxx Realty Corporation,
Docket No. A-5255-02T3.
|
| 2. |
In
the Matter of the Protest of Xxxxx Mountain Industries, Inc. and
Expo
Park, to the Proposal and Award of Development Rights for the Continental
Airlines Arena Site at the Xxxxxxxxxxx Xxxxxxx,
Xxxxxx Xx. X-0000-00X0.
|
| 3. |
In
Re Protest of Westfield America, Inc. to the New Jersey Sports &
Exposition Authority’s Resolution - 2003 26 Adopting the Hearing Officer’s
Report and Recommendation,
Docket No. A-1243-03T5.
|
| 4. |
Xxxxxx
Xxxxx v. N.J. Sports & Exposition Authority, The Xxxxx Corporation,
and Xxxx-Xxxx Realty Corporation,
Docket No. A-0708-03T3.
|
| 5. |
Xxxxxx
Xxxxx, Xxxxxxx Xxxxxxx, Xxxxxx Xxxxx and Xxxxx Xxxxxxxx v. N.J. Sports
& Exposition Authority, The Xxxxx Corporation, and Xxxx-Xxxx
Corporation,
Docket No. A-1218-03T3.
|
9
EXHIBIT
E
PARTY
REPRESENTATIVES
MC
PARTNERS
MC
Representative: Xxxxxxxx
X. Xxxxx
Alternate
MC
Representatives:
Xxxxx
Xxxxxxxxx;
Xxxxx
X.
Xxxxxx; or
Xxxxxxx
X. Xxxxxxxx
MDLP
MDLP
Representative:
Alternate
MDLP Representatives:
10
EXHIBIT
F
Office/Hotel
Venture
Timetable
for Assumption of Allocated
Ground
Rent, Pilot and Bond Debt Service Payments
|
Date
|
Component
|
Percentage
of Allocated
Payments
|
|
The
earlier of the Grand Opening Date or six (6) years from the Development
Rights Fee Funding Date
|
1
Office
|
6.675%
|
|
1
Office & Hotel
|
11.975%
|
|
|
1
Office
|
6.675%
|
|
|
1
Office
|
6.675%
|
|
|
32.000%
|
11
EXHIBIT
G
OFFICE
AND HOTEL MANAGEMENT FEES
Fees
relating to the Office Component consistent with fees payable in the New York
City metropolitan area.
Market-based
asset management fees relating to the Hotel Component.
Development
management fees for the Hotel Component consistent with fees payable in the
New
York City metropolitan area.
12
