**EXHIBIT4.5(b)**

 

EXECUTION COPY

 

2ND AMENDMENT TOSECOND AMENDED & RESTATEDDEVELOPMENT SERVICES AGREEMENT

 

THIS 2ND AMENDMENT TO SECOND AMENDED &RESTATED DEVELOPMENT SERVICES AGREEMENT (the “Agreement”) is made as of the21st day of December, 2004, by and among the Stockbridge-Munsee Band of MohicanIndians of Wisconsin, a federally recognized Indian tribe (hereafter referredto as the “Tribe”), the Stockbridge-Munsee Tribal Gaming Authority, aninstrumentality of the Tribe, (hereinafter referred to as the “Authority”),Trading Cove New York, LLC, a Delaware limited liability company (hereinafterreferred 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 Delawarelimited liability company (hereinafter referred to as “Waterford”).  KINA and Waterford are hereinaftercollectively referred to as the “Developer Guarantors.”

 

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

 

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

 

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

 

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WHEREAS, Section II (A)(3)(j) of theSettlement Agreement provides, inter alia, that the Federal SettlementLegislation to be enacted to implement its terms shall provide that the Tribeand the Oneida Indian Tribe of Wisconsin will be substituted as defendants inplace of the United States in any action by another Indian tribe claiming thatthe Federal Settlement Legislation resulted in a taking of its property rightsunder the Fifth Amendment, United States Constitution, to the land or naturalresources, or claims thereto, that are the subject of the claims asserted inthe action now pending in the United States District Court for the NorthernDistrict of New York entitled Oneida Nation of New York, et al., v. State ofNew York, et al. (Civil Action No. 74-CV-187); and that, under the terms ofthe Settlement Agreement, the Federal Settlement Legislation must provide thatany 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 LandClaim 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 populationto the total population of plaintiff Oneida Tribes in the United States, orapproximately seven percent (7%)); and that any recovery by the Oneida IndianNation of New York (the “Nation”) be offset by the value of benefits receivedby the Nation pursuant to the Federal Settlement Legislation; and that theTribe and the Oneida Indian Tribe of Wisconsin shall share any liability to allclaimant Indian tribes that are found eligible to recover according to thefollowing 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 toexceed ten (10) years.

 

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

 

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

 

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

 

1.             Section6.4 is amended by adding the following new subsection (c):

 

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

 

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

 

2.             Allother terms and conditions of the Second Amended Agreement shall remain in fullforce 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 andas 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) |
|        |                                     |  |  |  |

 

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|   | 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 |
|        |                             |  |  |  |  |  |

 

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