EXHIBIT
4.5(b)


 


EXECUTION COPY


 


2ND AMENDMENT TO

SECOND AMENDED & RESTATED

DEVELOPMENT SERVICES AGREEMENT


 


THIS 2ND AMENDMENT TO SECOND AMENDED &
RESTATED DEVELOPMENT SERVICES AGREEMENT (the “Agreement”) is made as of the
21st day of December, 2004, by and among the Stockbridge-Munsee Band of Mohican
Indians of Wisconsin, a federally recognized Indian tribe (hereafter referred
to as the “Tribe”), the Stockbridge-Munsee Tribal Gaming Authority, an
instrumentality of the Tribe, (hereinafter referred to as the “Authority”),
Trading Cove New York, LLC, a Delaware limited liability company (hereinafter
referred to as the “Developer”), Kerzner International North America, Inc.,
(formerly Sun International North America, Inc.) a Delaware corporation
(hereinafter referred to as “KINA”) and Waterford Gaming Group, LLC, a Delaware
limited liability company (hereinafter referred to as “Waterford”).  KINA and Waterford are hereinafter
collectively referred to as the “Developer Guarantors.”


 


WHEREAS, the Tribe, the Authority, the
Developer and the Developer Guarantors entered into a Second Amended &
Restated Development Services Agreement dated February 6, 2002, which agreement
was amended pursuant to an Amendment to Second Amended & Restated
Development Services Agreement dated October 19, 2004 (collectively, the “Second
Amended Agreement”); and


 


WHEREAS, on December 7, 2004 the Tribe and
the State of New York (“New York”) have entered into a settlement agreement, a
copy of which is attached hereto and made a part hereof as Exhibit “A” (the “Settlement
Agreement”), pursuant to which the Tribe has agreed to settle the Land Claim in
accordance with the terms and conditions set forth in the Settlement Agreement;
and


 


WHEREAS, Section II (A)(3)(k) of the
Settlement Agreement provides, inter alia, that the Federal Settlement
Legislation to be enacted to implement its terms shall provide that the Tribe
will be substituted as a defendant in place of the United States in any action
by another Indian tribe claiming that the Federal Settlement Legislation
resulted in a taking of its property rights under the Fifth Amendment, United
States Constitution, to land or natural resources or claims thereto, that are
the subject of the claims asserted in the action now pending in the Untied States
District Court for the Northern District of New York entitled Stockbridge-Munsee
Community vs. The State of New York, (Civil Action 86-CV-1140); and that,
under the terms of the Settlement Agreement, the Federal Settlement Legislation
must provide that the aggregate of damages awarded in such actions, if any, not
exceed the sum of Thirty Five Million ($35,000,000) dollars, and that any
recovery by the Oneida Indian Nation of New York (the “Nation”) be offset by
the value of benefits received by the Nation pursuant to the Federal Settlement
Legislation; and further that any such damages award may be paid out over a
period not to exceed ten (10) years.


 





















 


WHEREAS, Section II (A)(3)(j) of the
Settlement Agreement provides, inter alia, that the Federal Settlement
Legislation to be enacted to implement its terms shall provide that the Tribe
and the Oneida Indian Tribe of Wisconsin will be substituted as defendants in
place of the United States in any action by another Indian tribe claiming that
the Federal Settlement Legislation resulted in a taking of its property rights
under the Fifth Amendment, United States Constitution, to the land or natural
resources, or claims thereto, that are the subject of the claims asserted in
the action now pending in the United States District Court for the Northern
District of New York entitled Oneida Nation of New York, et al., v. State of
New York, et al. (Civil Action No. 74-CV-187); and that, under the terms of
the Settlement Agreement, the Federal Settlement Legislation must provide that
any damages awarded in any such action by the Oneida Indian Nation of New York
(the “Nation”) not exceed the sum of approximately Eighty-Four Million
($84,000,000) dollars (based on a projected total value of the Oneida Land
Claim of $1.2 billion, which value will be finally determined by Congress,
where the Nation shares in the total award based on the ratio of its population
to the total population of plaintiff Oneida Tribes in the United States, or
approximately seven percent (7%)); and that any recovery by the Oneida Indian
Nation of New York (the “Nation”) be offset by the value of benefits received
by the Nation pursuant to the Federal Settlement Legislation; and that the
Tribe and the Oneida Indian Tribe of Wisconsin shall share any liability to all
claimant Indian tribes that are found eligible to recover according to the
following formula:  seventy percent (70%)
by the Tribe and thirty percent (30%) by the Oneida Indian Tribe of Wisconsin;
and further that any such damages award(s) may be paid out over a period not to
exceed ten (10) years.


 


WHEREAS, pursuant to Article IX, Section C of
the Settlement Agreement, the Tribe’s obligation to pay any NY Litigation
Liability shall be solely satisfied from revenues generated in New York; and


 


WHEREAS, the parties desire to enter into
this Agreement in order for Developer to assist the Tribe with payment of the
NY Litigation Liability, if any, as set forth herein.


 


NOW, THEREFORE, in consideration of the
mutual covenants, conditions and promises herein contained, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:


 


1.             Section
6.4 is amended by adding the following new subsection (c):


 


“(c) In the event the Tribe incurs a
liability pursuant to and in accordance with the terms and conditions of
Article II, Section (A)(3)(j) and (k) of the Settlement Agreement entered into
between the Tribe and the State of New York dated December 7, 2004 (the “Settlement
Agreement”), and the Tribe makes a payment to satisfy the liability in
accordance with the provisions of those sections and Article IX, Section (C) of
said Settlement Agreement, Developer agrees to reimburse the Tribe in an amount
equal to twenty percent (20%) of the payments actually made by the Tribe.  Amounts payable by Developer to the Tribe
under this Section 6.4(c) shall only be made through a deduction by the Tribe
from Developer Fees due and owing Developer, shall be paid over a period


 





















 


not to exceed 10 years consistent with the payment schedule established
by the Tribe to satisfy the Settlement Agreement liabilities, if any, and shall
not be reimbursable to Developer from the proceeds of financing or otherwise.”


 


2.             All
other terms and conditions of the Second Amended Agreement shall remain in full
force and effect and are hereby ratified by the parties.


 


IN WITNESS WHEREOF, the Tribe, the Authority,
the Developer and the Developer Guarantors have executed this Agreement on and
as of the date first written above.


 


 


 


 


	
   

  	
  THE TRIBE

  
	
   

  	
   

  
	
   

  	
  STOCKBRIDGE-MUNSEE BAND

  
	
   

  	
  OF MOHICAN INDIANS

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/Robert
  Chicks

  	
   

  
	
   

  	
   

  	
  Name:  Robert Chicks

  
	
   

  	
   

  	
  Its:  Tribal Council President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE AUTHORITY

  
	
   

  	
   

  
	
   

  	
  STOCKBRIDGE-MUNSEE TRIBAL

  
	
   

  	
  GAMING AUTHORITY

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/Robert
  Chicks

  	
   

  
	
   

  	
   

  	
  Name:  Robert Chicks

  
	
   

  	
   

  	
  Its:  Chairperson

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Signatures continued on next page)

  
					



 





















 


	
   

  	
  DEVELOPER:

  
	
   

  	
   

  
	
   

  	
  TRADING COVE NEW YORK, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Waterford Development New York, LLC

  Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/Len
  Wolman

  	
   

  
	
   

  	
   

  	
  Name:  Len Wolman

  
	
   

  	
   

  	
  Its:  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Kerzner New York,

  
	
   

  	
   

  	
  Inc. (formerly Sun

  
	
   

  	
   

  	
  Cove New York, Inc.)

  
	
   

  	
   

  	
  Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/William
  C. Murtha

  	
   

  
	
   

  	
   

  	
  Name:  William C. Murtha

  
	
   

  	
   

  	
  Its:  Senior Vice President &
  Secretary

  
	
   

  	
   

  
	
   

  	
  DEVELOPER GUARANTORS:

  
	
   

  	
   

  
	
   

  	
  KERZNER INTERNATIONAL NORTH

  
	
   

  	
  AMERICA, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/William
  C. Murtha

  	
   

  
	
   

  	
   

  	
  Name: William C. Murtha

  
	
   

  	
   

  	
  Its: Senior Vice President

  
	
   

  	
   

  	
  & Corporate Counsel

  
	
   

  	
   

  
	
   

  	
  WATERFORD GAMING GROUP, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/Len
  Wolman

  	
   

  
	
   

  	
   

  	
  Name:  Len Wolman

  
	
   

  	
   

  	
  Its:  Chief Executive Officer