Exhibit
10.1


 




 


 





REDEVELOPMENT AGREEMENT


 


 


by and between


 


NEW JERSEY SPORTS AND EXPOSITION AUTHORITY


 


and


 


MEADOWLANDS MILLS/MACK-CALI LIMITED
PARTNERSHIP


 


 












 


DEVELOPMENT AND CONSTRUCTION OF

A MIXED-USE REDEVELOPMENT PROJECT


 


at


 


THE MEADOWLANDS SPORTS COMPLEX


 












 


 


December 3, 2003.




 


 





 


THIS DRAFT AGREEMENT, THE EXHIBITS AND SCHEDULES HERETO ARE STRICTLY
CONFIDENTIAL AND ARE FOR THE USE OF THE INTENDED RECIPIENTS ONLY.  THIS AGREEMENT AND THE EXHIBITS AND
SCHEDULES APPENDED HERETO SHOULD NOT BE FURTHER REPRODUCED, DUPLICATED OR
DISSEMINATED BY ANY MEANS WHATSOEVER.


 

















 


TABLE OF CONTENTS


 


	
  Recitals

  	
   

  	
   

  
	
   

  	
   

  
	
  Article 1

  Definitions and Interpretations

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.1

  	
  Definitions and Recitals

  	
   

  
	
  Section 1.2

  	
  Conflict with Project Agreements

  	
   

  
	
  Section 1.3

  	
  Drafting Ambiguities; Interpretation

  	
   

  
	
   

  	
   

  	
   

  
	
  Article 2

  Appointment of Developer

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.1

  	
  Appointment of Developer; No Warranty

  	
   

  
	
   

  	
   

  	
   

  
	
  Article 3

  Project

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.1

  	
  Project Development

  	
   

  
	
  Section 3.2

  	
  Project Phasing

  	
   

  
	
  Section 3.3

  	
  Traffic and Infrastructure Improvements

  	
   

  
	
  Section 3.4

  	
  Rail Access

  	
   

  
	
  Section 3.5

  	
  Wetlands

  	
   

  
	
  Section 3.6

  	
  Additional Developer Commitments

  	
   

  
	
  Section 3.7

  	
  Developer Interference; Authority
  Interference; Compliance with Existing Sports Complex Agreements

  	
   

  
	
   

  	
   

  	
   

  
	
  Article 4

  The Project Site

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.1

  	
  Project Site

  	
   

  
	
  Section 4.2

  	
  Title Review; Permitted Exceptions

  	
   

  
	
  Section 4.3

  	
  Title Insurance

  	
   

  
	
   

  	
   

  	
   

  
	
  Article 5

  Payments and Financial Obligations

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.1

  	
  Developer’s Financial Obligations

  	
   

  
	
  Section 5.2

  	
  Development Rights Fee; Refundable Security
  Deposit; Ground Rent

  	
   

  
	
  Section 5.3

  	
  PILOT Payments

  	
   

  
	
  Section 5.4

  	
  Authority’s Profit Participation

  	
   

  



 

















 


	
  Article 6

  Pre-Development Activities; Master Plan

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.1

  	
  Surveys

  	
   

  
	
  Section 6.2

  	
  Procedures Governing Review and Approval of
  Master Plan

  	
   

  
	
  Section 6.3

  	
  Effect of Authority Approval

  	
   

  
	
  Section 6.4

  	
  Developer Due Diligence

  	
   

  
	
  Section 6.5

  	
  No Liens

  	
   

  
	
   

  	
   

  	
   

  
	
  Article 7

  Project Approvals

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.1

  	
  Development Approvals

  	
   

  
	
  Section 7.2

  	
  NJDEP/NJMC Consultation

  	
   

  
	
   

  	
   

  	
   

  
	
  Article 8

  Ground Lease Closing; Material Conditions

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.1

  	
  Development Covenant

  	
   

  
	
  Section 8.2

  	
  Satisfaction of Material Conditions;
  Termination

  	
   

  
	
  Section 8.3

  	
  Limited Extension of Material Conditions
  Termination Date

  	
   

  
	
  Section 8.4

  	
  Limited Waiver of Material Conditions

  	
   

  
	
  Section 8.5

  	
  Access to the Project Site

  	
   

  
	
   

  	
   

  	
   

  
	
  Article 9

  Ground Lease; Component Leases

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.1

  	
  Execution of Ground Lease

  	
   

  
	
  Section 9.2

  	
  Conditions Precedent to Ground Lease
  Closing

  	
   

  
	
  Section 9.3

  	
  Ground Lease Closing

  	
   

  
	
  Section 9.4

  	
  Component Parts; Component Entities;
  Component Leases; Component Agreements

  	
   

  
	
  Section 9.5

  	
  Certificate of Completion

  	
   

  
	
   

  	
   

  	
   

  
	
  Article 10

  Continental Airlines Arena; Meadowlands Racetrack

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.1

  	
  Use of Arena; Use of Meadowlands Racetrack

  	
   

  
	
  Section 10.2

  	
  Right of First Refusal

  	
   

  
	
  Section 10.3

  	
  Interference

  	
   

  



 

















 


	
  Article 11

  Construction of Project

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.1

  	
  Construction Management Agreement

  	
   

  
	
  Section 11.2

  	
  Project Professionals; Plans and
  Specifications

  	
   

  
	
  Section 11.3

  	
  Authority’s Construction Representative

  	
   

  
	
  Section 11.4

  	
  Designated Representatives; Communication

  	
   

  
	
  Section 11.5

  	
  Review of Plans and Specifications

  	
   

  
	
  Section 11.6

  	
  Timing of Review

  	
   

  
	
  Section 11.7

  	
  Notice of Commencement of Construction

  	
   

  
	
  Section 11.8

  	
  Compliance with Master Plan and Development
  Approvals

  	
   

  
	
  Section 11.9

  	
  Shared Utilities; Stormwater Management

  	
   

  
	
  Section 11.10

  	
  Construction Interference

  	
   

  
	
  Section 11.11

  	
  Compliance with Sports Complex Commitments

  	
   

  
	
  Section 11.12

  	
  Office

  	
   

  
	
   

  	
   

  	
   

  
	
  Article 12

  Project Oversight

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.1

  	
  Project Oversight Prior to Completion

  	
   

  
	
  Section 12.2

  	
  Construction Approval

  	
   

  
	
  Section 12.3

  	
  Progress Meetings

  	
   

  
	
  Section 12.4

  	
  Progress Reports

  	
   

  
	
  Section 12.5

  	
  Access to Project Site

  	
   

  
	
  Section 12.6

  	
  Community Relations; Stakeholders Advisory
  Group

  	
   

  
	
  Section 12.7

  	
  Agreement to Cooperate; Authority’s Event
  Rights; Operating Plan; Security

  	
   

  
	
   

  	
   

  	
   

  
	
  Article 13

  Uses, Use Restrictions; Tenancy and Operator Requirements

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 13.1

  	
  Permitted Uses; General Covenants

  	
   

  
	
  Section 13.2

  	
  Tenants and Operators

  	
   

  
	
  Section 13.3

  	
  Litigation

  	
   

  
	
  Section 13.4

  	
  Sunday Closing Law Compliance

  	
   

  
	
  Section 13.5

  	
  Declaration of Covenants and Restrictions

  	
   

  
	
  Section 13.6

  	
  Mutual Use Recognition

  	
   

  
	
   

  	
   

  	
   

  
	
  Article 14

  Transfer Restrictions

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 14.1

  	
  Transfers Prohibited

  	
   

  
	
  Section 14.2

  	
  Permitted Transfers

  	
   

  
	
  Section 14.3

  	
  Involuntary Transfers; Bankruptcy

  	
   

  
	
  Section 14.4

  	
  Transfers for Which Authority Approval
  Required

  	
   

  



 

















 


	
  Article 15

  Environmental Matters

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 15.1

  	
  Acknowledgements; Allocation of
  Responsibility; Waiver

  	
   

  
	
  Section 15.2

  	
  Developer Initiated Data

  	
   

  
	
  Section 15.3

  	
  Developer’s Remediation

  	
   

  
	
  Section 15.4

  	
  Historic Fill Material

  	
   

  
	
  Section 15.5

  	
  Environmental Insurance

  	
   

  
	
  Section 15.6

  	
  No Third Party Rights

  	
   

  
	
  Section 15.7

  	
  Effect on Indemnities

  	
   

  
	
  Section 15.8

  	
  Survival

  	
   

  
	
  Section 15.9

  	
  Environmental Representations and
  Warranties by the Authority

  	
   

  
	
   

  	
   

  	
   

  
	
  Article 16

  Representations and Warranties

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 16.1

  	
  Representations and Warranties by Developer

  	
   

  
	
  Section 16.2

  	
  Representations and Warranties by Authority

  	
   

  
	
  Section 16.3

  	
  Indemnification

  	
   

  
	
  Section 16.4

  	
  Incorporation into Agreements

  	
   

  
	
   

  	
   

  	
   

  
	
  Article 17

  Insurance; Indemnification

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 17.1

  	
  Developer Insurance

  	
   

  
	
  Section 17.2

  	
  Developer Insurance Obligations During the
  Pre-Construction Period

  	
   

  
	
  Section 17.3

  	
  Developer’s Insurance Obligations During
  the Construction Period

  	
   

  
	
  Section 17.4

  	
  Developer’s Insurance Obligations During
  Post-Construction Period

  	
   

  
	
  Section 17.5

  	
  Authority Insurance

  	
   

  
	
  Section 17.6

  	
  Developer Indemnification

  	
   

  
	
  Section 17.7

  	
  Authority Indemnification

  	
   

  
	
   

  	
   

  	
   

  
	
  Article 18

  Events of Default and Remedies

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 18.1

  	
  Events of Default by Developer

  	
   

  
	
  Section 18.2

  	
  Events of Default by Authority

  	
   

  
	
  Section 18.3

  	
  Force Majeure Events

  	
   

  
	
  Section 18.4

  	
  Limited Remedies of Authority Upon
  Developer Event of Default

  	
   

  
	
  Section 18.5

  	
  Limited Remedies of Developer Upon
  Authority Event of Default

  	
   

  
	
  Section 18.6

  	
  Limitation on Damages

  	
   

  
	
  Section 18.7

  	
  Failure or Delay

  	
   

  
	
  Section 18.8

  	
  Remedies Cumulative

  	
   

  



 

















 


	
  Article 19

  Minority Participation; Non-Discrimination; Disclosures

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 19.1

  	
  Developer Affirmative Action Obligations

  	
   

  
	
  Section 19.2

  	
  Non-Discrimination

  	
   

  
	
  Section 19.3

  	
  Prevailing Wages

  	
   

  
	
  Section 19.4

  	
  Additional Disclosures

  	
   

  
	
   

  	
   

  	
   

  
	
  Article 20

  Publicity; Promotional Materials;

  Project Marketing Plans; Signage

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 20.1

  	
  Publicity; Promotional Materials

  	
   

  
	
  Section 20.2

  	
  Signage, Advertising and Marketing Rights

  	
   

  
	
  Section 20.3

  	
  Intellectual Property

  	
   

  
	
   

  	
   

  	
   

  
	
  Article 21

  Arbitration

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 21.1

  	
  Scope

  	
   

  
	
  Section 21.2

  	
  Arbitration Procedures

  	
   

  
	
  Section 21.3

  	
  Fees and Costs

  	
   

  
	
  Section 21.4

  	
  Confidentiality

  	
   

  
	
   

  	
   

  	
   

  
	
  Article 22

  Miscellaneous

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 22.1

  	
  Cooperation, Assurance, Estoppel
  Agreements, etc.

  	
   

  
	
  Section 22.2

  	
  Invalidity

  	
   

  
	
  Section 22.3

  	
  Legal Requirements; Venue

  	
   

  
	
  Section 22.4

  	
  Notices

  	
   

  
	
  Section 22.5

  	
  Notice Address

  	
   

  
	
  Section 22.6

  	
  Calculation of Time

  	
   

  
	
  Section 22.7

  	
  Expenses

  	
   

  
	
  Section 22.8

  	
  Waivers; Extensions

  	
   

  
	
  Section 22.9

  	
  Counterparts; Captions; Context

  	
   

  
	
  Section 22.10

  	
  Entire Agreement, Modifications

  	
   

  
	
  Section 22.11

  	
  Binding Effect

  	
   

  
	
  Section 22.12

  	
  No Joint Venture

  	
   

  
	
  Section 22.13

  	
  Time of the Essence

  	
   

  
	
  Section 22.14

  	
  Negation of Third-Party Beneficiaries

  	
   

  



 

















 


REDEVELOPMENT AGREEMENT


 


THIS
REDEVELOPMENT AGREEMENT is made as of the 3rd day of
December, 2003 (this “Agreement”), by and between the NEW JERSEY
SPORTS AND EXPOSITION AUTHORITY, a public body corporate and politic
with corporate succession and having an address at Meadowlands Sports Complex,
50 State Route 120, East Rutherford, New Jersey 07073 (the “Authority”),
and MEADOWLANDS MILLS/MACK-CALI LIMITED
PARTNERSHIP, a Delaware limited partnership, having an address at
c/o The Mills Corporation, 1300 Wilson Boulevard, Suite 400, Arlington,
Virginia 22209, and its permitted successors and assigns (the “Developer”).  The Developer and the Authority are referred
to herein individually as a “Party” and collectively as the “Parties”.


 


W I T N E S S E T H:


 


WHEREAS,
the Legislature of the State of New Jersey has found that the holding of
athletic contests, horse racing, spectator sporting events, trade shows,
entertainment events and other expositions and forums will promote the general
health and welfare of the people of New Jersey; and


 


WHEREAS,
pursuant to Public Law 1971, Chapter 137 (codified at N.J.S.A. 5:10-1 et
seq., and as thereafter amended and modified, the “Enabling
Legislation”) the Legislature of the State of New Jersey established the
Authority to, inter  alia, promote athletic contests, spectator
sporting events, trade shows and other expositions and to carry out projects as
set forth in the Enabling Legislation; and


 


WHEREAS,
the Authority owns certain real property consisting of approximately 750 acres
in the Borough of East Rutherford, New Jersey, commonly known as “The
Meadowlands Sports Complex” or “The Meadowlands” (as more
particularly described in Exhibit A-1 attached hereto) on which the
Authority has constructed, inter  alia, an enclosed sports arena
and associated surface parking lots, walks and driveways (currently known as
the Continental Airlines Arena and formerly known as the Brendan Byrne Arena,
and hereinafter referred to as the “Arena”), Giants Stadium, and the
Meadowlands Racetrack, such real property and improvements being collectively
referred to herein as the “Meadowlands Complex” or the “Sports
Complex”); and


 


WHEREAS,
in furtherance of its mission under Section 5:10-6 of the Enabling
Legislation, and in the exercise of its statutory powers, the Authority has
determined that it is necessary to improve the Meadowlands Complex with a
project including, but not limited to, an entertainment complex, retail and
other vending facilities, restaurants, recreation areas, hotel, offices and
other buildings, structures, facilities, properties and appurtenances that are
related to, incidental to, necessary for or complementary to the purposes of
such project and overall to the Meadowlands Complex, as hereinabove defined;
and


 


1

















 


WHEREAS,
pursuant to that goal, in June 2002, the Authority publicly circulated a
request for proposals (the “RFP”) seeking a developer to construct,
manage and otherwise effectuate, in conjunction with the Authority, the
foregoing facilities subject to the provisions of the Enabling Legislation,
other applicable laws and regulations and a redevelopment agreement to be
entered into between the Authority and the selected developer; and


 


WHEREAS,
several entities and interested parties submitted development proposals in
response to the RFP (each, a “Response”); and


 


WHEREAS,
all Responses and supplements thereto were thoroughly reviewed by the Authority
and, on the basis of the Developer’s Response, the Authority’s evaluation
thereof and additional public query and comment, the Authority’s Board of
Commissioners, by resolution duly adopted February 12, 2003, has
determined that the Authority should enter into exclusive negotiations with the
Developer for development of the real property located within the Meadowlands
Complex (adjacent to but excluding the Arena and the Arena Site, as such terms
are defined in Schedule 1.1 hereto), consisting of approximately
100 acres and as more particularly described in Exhibit “A” attached
hereto (the “Project Site”); and


 


WHEREAS,
the Authority has concluded the above-referenced negotiations and is entering
into this Agreement with the Developer as the master developer for a mixed-use
project consisting of buildings and structures comprising a total of
approximately 5,000,000 square feet of gross leaseable area (“GLA”)
which project includes the following components, entitlements and rights (each
a “Component” or “Project Component” and collectively, the “Project”):
(a) approximately 12,500 parking spaces located on the Project Site or within
the Project buildings or Components (as further defined on Schedule 1.1
hereof, the “Parking Component”); (b) approximately 2,200,000 square
feet of GLA of entertainment, recreation, retail and other vending facilities,
dining facilities and other facilities vending food or beverage, together with
such other facilities, whether vending or otherwise, related to, necessary for,
incidental to and/or complementary to the activities and purposes of the
Project and overall to the Meadowlands Complex and activities carried out by
the Authority and/or by the Sports Complex Users on the Meadowlands Complex
together with a fashion area of retail, not specifically oriented to
entertainment or recreation, of approximately 600,000 square feet of GLA, and
also including approximately 500,000 square feet of common area which, together
with the above-described 2,200,000 square feet of GLA comprising approximately
2,700,000 square feet (the “Entertainment/Retail Component”); (c)
approximately 1,760,000 square feet of Class “A” office space, together with
ancillary and/or complementary supporting retail and vending space that is
related to, necessary for, incidental to and/or complementary to the Class “A”
office use and activities and the purposes of the Project and overall to the
Meadowlands Complex and activities carried out by the Authority and/or by the
Sports Complex Users on the Meadowlands Complex (the “Office Component”);
(d) approximately 500,000 square feet of hotel space, together with ancillary
and/or complementary supporting retail and vending space that is related to,
necessary for, incidental to and/or complementary to the hotel use and
activities and purposes of the Project and overall to the Meadowlands Complex
and activities carried out by the Authority and/or the Sports Complex Users on
the Meadowlands Complex, and including approximately 520 hotel rooms (the “Hotel
Component”); (e) certain on- and off-site improvements to the traffic and
transportation infrastructure servicing the Project Site, all as further
described in this Agreement


 


2

















 


and as to be described in the Master Plan, and (f) the related rights
granted to the Developer under this Agreement and the Project Agreements; it
being understood that the configuration of the floor area of the Project (in
its entirety) and each of the foregoing Components may be subject to adjustment
based upon the Master Plan approval process set forth herein and/or the final
Development Approvals issued for or with respect to the Project and as more
fully set forth in this Agreement; and


 


WHEREAS,
in selecting the Developer to develop and operate the Project, the Authority
has determined that the Developer’s Response to the RFP and the Project (as
described above) are consistent with, and satisfy the requirements of, the RFP;
and


 


WHEREAS,
the Parties are entering into this Agreement in furtherance of the above public
purposes and in order to set forth the terms and conditions governing the
design, permitting, construction, operation and maintenance of the Project.


 


NOW,
THEREFORE, in consideration of the promises and mutual
obligations of the Parties hereto and such other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties intending to be legally bound thereby, do hereby covenant and agree
with the other as follows:


 


ARTICLE 1

DEFINITIONS AND INTERPRETATION


 


SECTION 1.1.  Definitions and Recitals.  Capitalized terms used in this Agreement and
its schedules and exhibits shall have the meanings described in the text of
this Agreement (or schedules and exhibits, as the case may be) which defined
terms may be further refined or described in Schedule 1.1 hereto
which when taken together shall comprise the complete defined term.  The Recitals set forth in this Agreement, as
well as the definitions contained therein, are hereby incorporated herein as if
fully set forth herein.


 


SECTION 1.2.  Conflict with Project Agreements.  This Agreement and each of the Project Agreements
are each intended to address each of the respective matters specifically set
forth therein.  Prior to Completion of
the Project in its entirety (or Completion of a Component thereof, as the case
may be), in the event of any conflict between the terms of this Agreement and
the terms of any other Project Agreement, the terms of this Agreement shall
control absent an unambiguous intent to the contrary.  Following Completion of the Project in its entirety (or Completion
of a Component thereof, as the case may be), in the event of any conflict
between the terms of the Ground Lease and the terms of any other Project
Agreement, the terms of the Declaration and the Ground Lease (or the applicable
Component Lease, as the case may be) shall control absent an unambiguous intent
to the contrary.  Nothing in the
foregoing shall be interpreted to mean that this Agreement terminates upon
completion of the Project or Component thereof and the provisions of this
Agreement are, unless otherwise expressly provided to the contrary herein,
intended to remain in effect following completion of the Project or Component
thereof, as the case may be.


 


3

















 


SECTION 1.3.  Drafting Ambiguities; Interpretation.  In interpreting any provision of this
Agreement, no weight shall be given to, nor shall any construction or
interpretation be influenced by, the fact that counsel for one of the Parties
drafted this Agreement, each Party recognizing that it and its counsel have had
an opportunity to review this Agreement and have contributed to the final form
of same.  Unless otherwise specified (i)
whenever the singular number is used in this Agreement, the same shall include
the plural, and the plural shall include the singular, (ii) the words “consent”
or “approve” or words of similar import, shall mean the prior written consent
or approval of the Authority or Developer, as the case may be, unless expressly
stated to the contrary herein, (iii) the words “include” and “including”, and
words of similar import, shall be deemed to be followed by the words “without
limitation”, (iv) “hereunder” shall be deemed to refer to the provisions of
this Agreement in their entirety and not to a provision contained within any
particular Section, and (v) the Schedules and Exhibits to this Agreement are
incorporated herein by reference.


 


ARTICLE 2

APPOINTMENT OF DEVELOPER


 


SECTION 2.1.  Appointment of Developer; No Warranty.  (a) Appointment; Acceptance.  The Authority hereby appoints the Developer
as the master developer of the Project, and Developer hereby accepts such
appointment upon and subject to the terms and conditions set forth in this
Agreement.  Developer shall (i) act as
the master developer for the Project and shall cause the Project to be
designed, permitted and constructed materially in accordance with the
requirements of this Agreement, the Master Plan and the Development Approvals,
(ii) cause the Project to be operated and maintained in accordance with the
terms hereof and the provisions of the Ground Lease and, to the extent
applicable, Developer may effect such obligations by and through the Project
Agreements, including without limitation, any Component Lease(s) and Component
Agreements, and (iii) provide (or cause to be provided) all materials,
fixtures, furniture, supplies, equipment, all architectural, engineering and
consulting services and labor necessary for the design, permitting, and
construction of the Project, in all material respects in accordance with this
Agreement.  The Authority and the
Developer and their respective agents, employees and representatives shall use
their respective diligent and commercially reasonable efforts to work
collaboratively through the completion of the Project in its entirety, unless
this Agreement has been terminated in accordance with its terms.


 


(b)                                 No Representation
or Warranty.  Developer specifically
acknowledges that, except as expressly provided herein or in the Project
Agreements, the Authority makes no representation or warranty, expressed or
implied, as to the Project’s or the Project Site’s fitness for use for any
particular purpose, condition or durability thereof, or that it will be
suitable for Developer’s purposes; provided  however, that the
Parties acknowledge and agree that the Developer has entered into this
Agreement in reliance upon the Authority’s representations as set forth in Section 16.2
hereof.


 


(c)                                  Independent
Contractor; Financial Responsibility. 
Developer is an independent contractor and is not, and shall not be
deemed to be, an agent of the Authority. 
Developer has no authority to make commitments on behalf of, or to
legally bind, the Authority.  All
contracts relating to the design, permitting and initial construction of the
Project and, to the


 


4

















 


extent applicable, the Traffic and Infrastructure Improvements, shall
be entered into by Developer (or a Component Entity, to the extent applicable)
and not the Authority, and Developer shall (except to the extent expressly
provided to the contrary in this Agreement, including specifically and without
limitation, (i) Section 3.3(d) hereof with respect to payment of
the costs relating to Final Traffic and Infrastructure Improvements that exceed
the Traffic and Infrastructure Cap Amount, (ii) Section 15.3(f)
hereof with respect to payment of the Authority’s Environmental Remediation
Contribution, and (iii) with respect to any agreement or obligation under the
Enabling Legislation, the Settlement Agreement or future agreement providing
for payment by the Authority of any PILOT Payments) be financially responsible
for payment of all fees and contract sums due under such contracts (unless the
Authority or other Governmental Body has assumed, in whole or in part, the
obligation to perform under such contract).


 


ARTICLE 3

PROJECT


 


SECTION 3.1.  Project Development.  Pursuant to the terms of this Agreement and
the Project Agreements, the Developer shall, as master developer, have the
exclusive right to design, permit and construct and operate the Entertainment/Retail
Component of the Project and that portion of Parking Component related thereto,
and to master develop, on a phased basis, the balance of the Project, all in
conformance with the Master Plan.  In addition
to the foregoing, the Traffic and Infrastructure Improvements may be
constructed by the Developer on a phased basis in accordance with the Traffic
and Infrastructure Sequencing Plan and Development Approvals.


 


SECTION 3.2  Project Phasing.  (a) The Project will consist of the
following phases, consisting of the applicable buildings, structures,
equipment, fixtures, appurtenances and other on-site and off-site improvements
and facilities (each a “Phase”), each of which (to the extent permitted
by the applicable Development Approvals) is projected to be constructed in the
below-listed order:


 


(i)                                     Phase I –
(A) Fill undeveloped wetland areas, as required, for the Project, subject to
the Development Approvals, (B) that portion of the Parking Component comprised
of approximately 1,675 spaces, (C) the applicable Traffic and Infrastructure
Improvements (including the applicable relocation of existing utilities)
described on Exhibit “C-1” hereto, and (D) establishment of Project
Contractor staging areas.


 


(ii)                                  Phase II – (A)
the Entertainment/Retail Component, (B) that portion of the Parking Component
comprised of approximately 6,325 spaces, (C) the applicable Traffic and
Infrastructure Improvements described on Exhibit “C-2” hereto and (D)
assuming favorable economic and marketing conditions, a minor league baseball
stadium of approximately 8,000 seats (the “Baseball Stadium”).  Subject to the terms hereof, a Baseball
Stadium may be built as part of Phase II or a subsequent Phase in which event
it shall become part of the Project.


 


(iii)                               Phase III –
Assuming favorable economic and market conditions, (A) the Hotel Component or
portion thereof, and/or (B) that portion of the Office Component designated as
Office Building “A”, and (C) the accessory parking related to the Hotel


 


5

















 


Component (or portion thereof) and/or the Office Building “A” portion
of the Office Component, and (D) the applicable Traffic and Infrastructure
Improvements described on Exhibit C-3 hereto.


 


(iv)                              Phase IV –
Assuming favorable economic and market conditions, (A) all or any portion of
the Hotel Component not Completed as part of Phase III (and Office
Building “A”, if not Completed in Phase III) and the accessory parking related
thereto and/or those portions of the Office Component designated as office
building “B”, “C” and/or “D”, (B) the accessory parking related to the office
buildings “B”, “C” and/or “D”, as the case may be, and (C) the applicable
Traffic and Infrastructure Improvements described on Exhibit “C-4”
hereto.  Upon prior written notice to
the Authority as more fully set forth elsewhere herein, Developer shall have
the right to develop the Components or Component Parts constituting Phase III
and/or IV in multiple sub-phases based on market conditions.


 


Notwithstanding the foregoing, with the exception of Phases I and II,
which shall be constructed first (excluding the Baseball Stadium), the
sequencing of construction and the dates on which each Component of the Project
(or Phase thereof) shall be constructed shall be determined by the Developer in
the exercise of its business judgment, taking into account all relevant factors
(after reasonable consultation with the Authority if materially different than
the Preliminary Project Sequencing Plan or the Final Project Sequencing Plan,
as the case may be) and, in any case, in accordance with the Construction
Management Agreement and/or the Project Operating Agreement then in
effect.  Subject to the restrictions set
forth in the Project Agreements, nothing herein is intended to preclude or
limit the right or power of the Developer to undertake work on multiple Phases
concurrently or require that any one Phase be Completed prior to the
commencement of work on a different Phase. 
Nothing herein shall require the Authority to expend any actual
out-of-pocket costs or incur any liabilities, except as hereinafter otherwise
provided or in the Project Agreements, of any kind or nature to facilitate the
development, construction or operation of the Project or any Component thereof
in accordance with any particular Project Schedule now or hereafter
proposed by Developer or using any particular construction methods.


 


(b)                                 Preliminary and
Final Project Sequencing Plan.  The
preliminary plan for the sequencing of construction of the Project and the
projected dates on which certain Components of the Project, or Phase thereof,
may be constructed are set forth in the description attached hereto as Exhibits
“C-1” through “C-4”, inclusive and Exhibit “E” (collectively,
the “Preliminary Project Sequencing Plan”).  However, the Parties acknowledge that as of the date hereof, the
sequencing of construction of the Project Components also depends upon
resolution of certain technical matters and market considerations that are not
capable of conclusive determination at this time.  As such, an updated construction sequencing plan of the Project
Components will be prepared by the Developer from time-to-time to reflect the
changes made since the Preliminary Project Sequencing Plan which changes may be
made to reflect then current market considerations, to be finalized and
submitted to the Authority for review as part of Item No. 5 of the
Master Plan requirements described in Section 6.2(c)(i)(5) hereof
(the “Final Project Sequencing Plan”).


 


(c)                                  Preliminary and
Final Traffic and Infrastructure Sequencing Plan. A preliminary plan for
the sequencing of construction of the Traffic and Infrastructure


 


6

















 


Improvements is set forth in the description attached hereto as Exhibit
“C-6” (collectively, the “Preliminary Traffic and Infrastructure
Sequencing Plan”).  However, the
Parties acknowledge that as of the date hereof, the sequencing of construction
of the Traffic and Infrastructure Improvements, although based upon the sequencing
of construction of the Project Components (or Phases thereof), depends upon the
resolution of certain technical matters that are not capable of conclusive
determination at this time.  As such, an
updated construction sequencing plan of the Traffic and Infrastructure
Improvements will be prepared by the Developer from time to time to reflect the
changes made since the Preliminary Traffic and Infrastructure Sequencing Plan,
to be finalized and submitted to the Authority for review as part of Item
No. 5 of the Master Plan requirements described in Section 6.2(c)(i)(5)
hereof (the “Final Traffic and Infrastructure Sequencing Plan”).


 


(d)                                 Non-Interference.  Developer shall use commercially reasonable
efforts to minimize the creation of Developer Interference and Authority
Interference in designing the Preliminary and Final Project Sequencing Plans
and the Preliminary and Final Traffic and Infrastructure Sequencing Plans.


 


(e)                                  Modifications to
Sequencing Plans.  With the
exception of Phase I and Phase II, following Approval of the Master Plan, the
Developer shall be permitted to modify the Final Project Sequencing Plan and/or
the Final Traffic and Infrastructure Sequencing Plan from time-to-time, as it
reasonably determines consistent with customary commercial construction
practices and then current market conditions and in accordance with the balance
of this Section 3.2(e).  The
Developer shall provide prompt written notice to the Authority of such
changes.  Any such modifications to the
Final Project Sequencing Plan and/or the Final Traffic and Infrastructure
Sequencing Plan shall not limit, reduce or otherwise modify the Parties’
respective rights or obligations under this Agreement in any material respect.


 


SECTION 3.3.  Traffic and Infrastructure Improvements.  (a) As of the Effective Date, the Developer
has identified the Traffic and Infrastructure Improvements described on Exhibit
“C-5” as being required to support construction and operation of the
Project (the “Preliminary Traffic and Infrastructure Improvements”).  Such Preliminary Traffic and Infrastructure
Improvements include, without limitation, on-site and off-site improvements,
utility relocations and roadway relocation consistent with the Preliminary
Traffic and Infrastructure Sequencing Plan. 
The Authority and the Developer acknowledge and agree that the
Preliminary Traffic and Infrastructure Improvements shall be subject to review
and approval by Governmental Bodies as part of the process of acquiring the
Development Approvals and, as such, the Preliminary Traffic and Infrastructure
Improvements described on Exhibit “C-5” hereto may be materially and
substantially revised; provided  however, any such modification
shall not be deemed to require the Developer to expend in excess of the Traffic
and Infrastructure Cap Amount set forth in Section 3.3(d) hereof
unless Developer shall have elected to do so pursuant to Section 8.2(b)(xi)
hereof.  A revised plan for construction
of the Traffic and Infrastructure Improvements will be prepared by the Developer
to reflect the proposed changes made to the Preliminary Traffic and
Infrastructure Improvements (the improvements reflected in the final plan are
hereinafter referred to as the “Final Traffic and Infrastructure
Improvements”).  The Developer shall
provide prompt written notice to the Authority of any revision to the
Preliminary Traffic and Infrastructure Improvements and furnish the Authority
with copies of all interim


 


7

















 


drawings promptly following completion.  Concurrent with the preparation and submittal of final
Development Approval Documents relating to the Traffic and Infrastructure
Improvements, the Parties shall endeavor in good faith to agree upon a revision
to Exhibit C-5 to reflect the Final Traffic and Infrastructure
Improvements and such revision shall include the Developer’s estimated budget
to permit, design and construct such Final Traffic and Infrastructure
Improvements, subject to the limitations in Section 3.3(b), (c) and (d)
hereof.  From and after the date of such
revision and acceptance or Approval by the Authority, as the case may be,
pursuant to the terms hereof, to the extent required by Section 6.2
hereof, such revised Exhibit “C-5” and the Development Approvals shall
define the scope of the Developer’s obligations with respect to such Final
Traffic and Infrastructure Improvements. 
Such written plan shall be promptly prepared by the Developer and
submitted to the Authority for review as part of Item No. 6 of the
Master Plan requirements described in Section 6.2(c)(i)(6) hereof.


 


(b)                                 Developer
Responsibilities; Cooperation by Authority.  In order to provide for construction of the Final Traffic and
Infrastructure Improvements at the lowest practicable cost and in the most
efficient manner (in light of, among other things, economies that result from
integration of construction of the Final Traffic and Infrastructure
Improvements with construction of other Project Components), to the maximum
extent practicable consistent with Legal Requirements, construction of the
Final Traffic and Infrastructure Improvements shall be undertaken and/or
overseen/managed by the Developer.  The
Developer shall be responsible for the costs relating to the permitting, design
and construction of the Final Traffic and Infrastructure Improvements (whether
or not such Improvements are constructed by the Developer); provided  however,
that (i) the Developer’s obligations to pay such costs shall be subject to the
provisions of Section 3.3(d) hereof and shall not exceed the
Traffic and Infrastructure Cap Amount (unless Developer so elects as provided
in Section 8.2(b)(xi) hereof, and (ii) Developer shall not be
obligated for any increase in cost caused by an Authority Event of Default or
the action or omission of the Authority in contravention of the terms of this
Agreement and/or the Construction Management Agreement.  The Authority shall cooperate with the
Developer at no out-of-pocket, third-party cost to the Authority in obtaining
the agreement or approval from Governmental Bodies having competent
jurisdiction over construction of the Final Traffic and Infrastructure
Improvements to permit the Developer to design and promptly construct the Final
Traffic and Infrastructure Improvements.


 


(c)                                  Construction.  The Final Traffic and Infrastructure
Improvements shall be constructed substantially in accordance with the Final
Traffic and Infrastructure Sequencing Plan, it being expressly understood that
none of the Components comprising Phase I nor Phase II of the Project shall be
deemed to be eligible for the delivery of a Certificate of Completion by the
Authority pursuant to the terms hereof unless the Final Traffic and
Infrastructure Improvements applicable to such Phases have been substantially
completed, in each case, in conformance with the Development Approvals and the
Final Traffic and Infrastructure Sequencing Plan.  Notwithstanding the foregoing, the Developer (in the exercise of
its reasonable discretion and, to the extent permitted by the Development
Approvals), may elect to construct the portions of the Final Traffic and
Infrastructure Improvements relating to the Office Component and/or the Hotel
Component as part of Phase III and/or Phase IV, as applicable, rather than as
part of Phase I and Phase II.


 


8

















 


(d)                                 Traffic and
Infrastructure Cost Allocation.  (i)
The Parties acknowledge and agree that, subject to the occurrence of the Ground
Lease Closing, Sixty-Five Million Dollars ($65,000,000) (the “Traffic and
Infrastructure Cap Amount”) has been committed by the Developer for
application to payment of the customary and reasonable hard and soft costs
associated with and incurred in connection with the Final Traffic and
Infrastructure Improvements (including specifically and without limitation
costs of design and permit application, construction costs, financing costs,
review fees, construction management and similar or related development fees,
to the extent that the foregoing are reasonable and customary for projects of
the size and scope of the Project).  The
aggregate of all such costs actually expended shall be hereinafter referred to
as the “Actual Traffic and Infrastructure Costs”.  In the event that the Actual Traffic and
Infrastructure Costs are greater than Sixty-Five Million Dollars ($65,000,000),
the Developer shall provide written certification thereof to the Authority no
later than ninety (90) days following the earlier to occur of (i) the date
reasonably estimated by Developer upon which substantial completion of the
Final Traffic and Infrastructure Improvements in their entirety shall occur, or
(ii) funding and actual payment by the Developer of Sixty-Five Million Dollars
($65,000,000) for such costs, subject to the provisions of Section 8.2(b)(xi).  Upon receipt of the certification of the
Developer as provided hereinabove, the Authority shall pay to Developer the
Authority Traffic and Infrastructure Payment Amount as determined pursuant to Section 8.2(b)(xi)
hereof (or such amount in excess thereof that may have been agreed to pursuant
to Section 8.2(b)(xi) hereof). 
Notwithstanding anything herein (including, but not limited to, this Section 3.3
and Section 8.2(b)(xi)) to the contrary, the Authority Traffic and
Infrastructure Amount (as defined in Section 8.2(b)(xi)) shall be
limited to a maximum aggregate payment of Three Million Two Hundred Fifty
Thousand Dollars ($3,250,000).


 


(ii)                                  In the event that the
Authority is obligated to pay the Authority Traffic and Infrastructure Payment
Amount as provided herein, and such payment is not made by the Authority (or by
the applicable Governmental Body responsible for such payment) within one
hundred twenty (120) days of presentment of Developer’s written certification,
as required, the Developer may offset the amount of such payment (together with
interest thereon from the date such payment was due until fully paid at the
Overdue Rate, plus the costs of collection, including without limitation,
reasonable attorneys fees) against any payments then due and payable or to be
paid by the Developer during the term of this Agreement, the Ground Lease or by
a Component Entity under any Component Lease (including specifically and
without limitation, the Ground Rent and/or the Developer PILOT Payments).  The foregoing right of the Developer to
offset such payments shall not be deemed to constitute a waiver of any rights
that the Developer may have at law or in equity to enforce the Authority’s
obligation to pay the Authority Traffic and Infrastructure Payment Amount.


 


(iii)                               In the event that the
Actual Traffic and Infrastructure Costs are less than the Traffic and
Infrastructure Cap Amount, as evidenced by the aforementioned Developer’s
certification, the Developer shall pay to the Authority an amount equal to the
difference between the Traffic and Infrastructure Cap Amount, and the Actual
Traffic and Infrastructure Costs (the “Unspent Traffic and Infrastructure
Amount”).  The Developer shall pay
the Unspent Traffic and Infrastructure Amount to the Authority within one
hundred twenty (120) days following receipt by the Developer of the Authority’s
written notification that the


 


9

















 


Authority has reviewed and agreed with the Developer’s certification as
to the Actual Traffic and Infrastructure Costs.  If the Parties cannot reach agreement as to the Actual Traffic
and Infrastructure Improvement Costs, the provisions of Article 21
hereof shall apply and the successful Party shall be entitled to payment of
interest on any unpaid amount at the Overdue Rate for the period from the date
such amount is payable until the date such amount is paid.  The Unspent Traffic and Infrastructure
Amount shall be applied by the Authority FIRST, for payment of the costs
of connecting the Entertainment/Retail Component to the rail station to be
constructed proximate to the Project Site, and SECOND, to the extent
funds remain available, for payment of a portion of the capital cost to be
incurred in connection with construction of the infrastructure improvements within
the Meadowlands Complex required to bring rail access to the Sports Complex and
the Project Site (such costs, the “Rail Access Project Expenditure”; the
related project, the “Rail Access Project”).  The Rail Access Project Expenditure shall be subject to the
reasonable approval of the Developer. 
In the event that the Developer pays the Unspent Traffic and
Infrastructure Amount and such funds are not used for the Rail Access Project
Expenditure within five (5) years following Completion of the Entertainment/Retail
Component, the Authority shall refund any unspent moneys to the Developer plus
interest thereon from the date paid to the Authority at the “prime rate” (as
such term is defined in Schedule 1.1 in the definition of Overdue
Rate).


 


(e)                                  On-Site/Off-Site
Cost Allocation.  Developer
expressly acknowledges and agrees that the Traffic and Infrastructure Cap
Amount is intended to fund only the Final Traffic and Infrastructure
Improvements, and that the portion of the Final Traffic and Infrastructure Improvements
relating to on-site improvements shall be limited in scope only to those
specific improvements that are (i) needed to support construction and operation
of the Project on the Project Site in particular, as opposed to improvements
that would be required on development sites generally and (ii) other
improvements that are described or contemplated as Preliminary Traffic and
Infrastructure Improvements.  By way of
example, but not limitation, costs associated with relocation of existing
utilities and modifications to utility easements on the Project Site required
to accommodate the Project would qualify as a Traffic and Infrastructure
Improvement to be funded from the Traffic and Infrastructure Cap Amount.  Similarly, typical costs of installation of
customary commercial application underground utilities to service the Project
that would customarily be borne by the Developer as part of normal commercial
non-site specific development shall not be applied as a deduction against the
Traffic and Infrastructure Cap Amount, unless described or contemplated as
Preliminary Traffic and Infrastructure Improvements.  Any dispute relating to the estimated budget and scope of work to
permit, design and construct the Final Traffic and Infrastructure Improvements
may be submitted to arbitration in accordance with Article 21
hereof.


 


(f)                                    Authority
Cooperation.  The Authority shall
(at no out-of-pocket third-party expense to the Authority) cooperate with
Developer to identify and secure sources of financing for those Traffic and
Infrastructure Improvements, including any, that are eligible (under applicable
Federal income tax law) to be funded with tax-exempt debt obligations.  If requested by the Developer, the Authority
shall (i) issue (on a non-recourse, conduit basis) debt obligations for sale to
the public or private capital markets, or make application, together with the
Developer to either the New Jersey Economic Development Authority, The Bergen
County Improvement Authority or the Borough requesting such entity to issue
non-recourse, conduit


 


10

















 


debt obligations on behalf of the Authority and/or the Developer, (ii)
cooperate with the Developer in preparing and distributing any disclosure
documentation required for the marketing and sale of such debt obligations,
(iii) participate in meetings with credit rating agencies, bond insurance
providers, credit enhancement issuers and/or institutional purchasers with
respect to the proposed financing, (iv) execute such reasonably required
closing or other documents as are necessary in order to effectuate the issuance
of such debt obligations, provided  however, in giving effect to
the foregoing provisions, the Authority shall not (A) be obligated to incur any
out-of-pocket expenses, or (B) be required to redeem outstanding Authority
indebtedness or take remedial actions under the Internal Revenue Code, as
amended, and the regulations, decisions and orders promulgated or issued
thereunder, that may be required in order to maintain the exclusions of
interest on the Authority’s tax-exempt debt obligations from gross income for
Federal income tax purposes or violate any Sports Complex Agreements or
existing bond finance documents. 
Notwithstanding anything set forth in this Section 3.3(f),
the Authority’s agreement to cooperate shall not constitute a representation by
the Authority that such sources are available or permitted under Legal
Requirements nor that any of the Traffic and Infrastructure Improvements would
qualify for such financing.


 


SECTION 3.4.  Rail Access.  (a) The Parties shall use their good faith,
diligent and commercially reasonable efforts, in conjunction with applicable
Governmental Bodies, to develop and implement a plan to construct the Rail
Access Project.  In the course of
developing the Master Plan and obtaining Development Approvals, the Developer
shall exercise its diligent and commercially reasonable efforts to consult with
the Authority and the Governmental Bodies for the purpose of identifying the
various options for the provision and location of rail access to the Project
Site.  The Developer shall use
commercially reasonable efforts to maintain flexibility within the Master Plan
to accommodate multiple options with respect to implementation of the Rail Access
Project; provided  however, that such obligation shall not be
deemed to require the Developer to modify the Project (or any Component thereof
or financing related thereto) or accommodate multiple options to the extent
that such modification or accommodation would (i) have a Material Adverse
Effect on the Project, the Developer, the Master Plan and/or the ability of the
Developer or the Authority to satisfy any material obligation required to be
performed under this Agreement, the Ground Lease, any Component Lease or
Project Indebtedness, or (ii) constitute a Major Modification.  The Developer expressly acknowledges and
agrees that the Authority makes no representation or warranty, express or
implied, with respect to the future availability of public transportation to
the Project Site.


 


(b)                                 Rail Access
Marketing.  In the event that rail
access is provided to the Project Site, Developer shall use its commercially
reasonable efforts to cause a marketing and publicity program to be initiated
to encourage use of the rail system by Project visitors and employees.


 


(c)                                  No Further
Obligation.  Notwithstanding the
foregoing, other than application of the Unspent Traffic and Infrastructure
Amount, if any, as provided in Section 3.3(d) hereof, the Developer
shall not have any obligation to contribute or make payment to the Authority,
the State or any Governmental Body with respect to the Rail Access Project.


 


11

















 


SECTION 3.5.  Wetlands.  (a) Wetlands Mitigation Requirement.
The Parties acknowledge and agree that, in order to obtain certain of the
Development Approvals, wetlands mitigation may be required.  With respect to any wetlands mitigation that
is required, Developer shall, at the sole cost and expense of Developer, carry
out same in the manner authorized, required or permitted by applicable
Development Approvals.


 


(b)                                 Establishment
of Wetlands Mitigation Bank.  (i)
The Parties acknowledge and agree that the Developer intends to seek approval
of the Governmental Bodies having competent jurisdiction for establishment of a
wetlands mitigation bank on the Empire Tract (the “Wetlands Mitigation Bank”)
and execution of any applicable agreements relating thereto, including the
MIMAC Agreement (the “WMB Approvals”).


 


(ii)                                  To the extent
reasonably requested by the Developer, and to the extent consistent with Legal
Requirements, the Authority shall cooperate with the Developer in its efforts
to obtain and effectuate the WMB Approvals, including attendance at meetings
with appropriate officials of the federal and/or State government as may be
reasonably requested by Developer for such purpose, identification of potential
governmental and quasi-governmental purchasers of wetlands mitigation credits
from the Wetlands Mitigation Bank, and the Authority shall provide other
cooperation, as may be reasonably requested by the Developer.


 


(c)                                  Conveyance
of Empire Tract.  (i) Developer
shall convey or cause to be conveyed insurable title to the Empire Tract on the
Ground Lease Closing Date to an entity designated by the Authority or
NJDEP.  In the event that any WMB
Approval prohibits transfer of the Empire Tract prior to completion of
mitigation banking activities, then the Developer shall convey insurable title
to the Empire Tract after completion of such activities.


 


(ii)                                  The conveyance of the
Empire Tract shall be subject to a reservation of Developer’s rights to (A)
establish the Wetlands Mitigation Bank on the Empire Tract, (B) enter upon,
occupy and make use of the Empire Tract for purposes of restoring the Empire
Tract for use as a Wetlands Mitigation Bank, and (C) enter upon, occupy and use
the Empire Tract for purposes of operating and maintaining the Wetlands
Mitigation Bank for its intended purpose, in accordance with the WMB Approvals.  Such reservation shall be recorded with the
Bergen County Clerk and thereafter shall encumber and run with the land
comprising the Empire Tract.


 


(iii)                               In the event the Ground
Lease Closing does not occur and this Agreement is terminated, Developer shall
have no obligation to convey or cause to be conveyed the Empire Tract and
thereafter, the Developer shall have no further obligations hereunder with
respect to the Empire Tract, and the Authority and the entity previously
designated to own the Empire Tract shall not have any further rights in, to or
otherwise in connection with the Empire Tract.


 


(d)                                 Restoration
of Empire Tract.  If the Wetlands
Mitigation Bank has been established pursuant to Section 3.5(b)
hereof, then the Developer shall promptly undertake (at its sole cost and
expense) restoration of the Empire Tract in accordance with the WMB Approvals
for those areas of the Empire Tract where agreements have been reached with
third parties for


 


12

















 


the purchase of credits from the Wetlands
Mitigation Bank.  The Developer
anticipates spending up to approximately Twenty-Five Million Dollars
($25,000,000) (the “Estimated Wetlands Restoration Amount”) with respect
to restoration of the Empire Tract, inclusive of the tasks set forth on Exhibit
G hereto.  The Estimated Wetlands
Restoration Amount (and the tasks set forth on Exhibit G hereto) shall
be subject to revision based upon, among other things, the terms and conditions
of the WMB Approvals (in accordance with the review process set forth in this
Agreement for modification of the Master Plan) to give effect to the terms and
conditions of the final, non-appealable WMB Approvals.  Expenditures in excess of the Estimated
Wetlands Restoration Amount shall be made in the Developer’s sole discretion.


 


(e)                                  Operation of
Wetlands Mitigation Bank.  In the
event of a conveyance of the Empire Tract prior to the initiation and/or
completion of wetlands mitigation activities (wetlands restoration and sale of
mitigation credits) in accordance with Section 3.5(c) hereof, the
Developer shall be granted a license to operate the Wetlands Mitigation Bank,
which license shall provide, among other things, that (i) the Authority and the
owner of the Empire Tract shall have no responsibility for operation of the
Wetlands Mitigation Bank, (ii) the Developer shall indemnify, protect, defend
and hold harmless the Authority and the owner of the Empire Tract from and
against all claims arising in connection with operation of the Wetlands
Mitigation Bank, and (iii) the Developer’s failure to operate the Wetlands
Mitigation Bank in all material respects in accordance with applicable WMB
Approvals shall result in termination of the license following receipt of
written notice of such failure from the Governmental Body having competent
jurisdiction and the provision of a reasonable cure period (in light of the
work required to be performed or the actions required to be taken by the
Developer to cure such failure), but not less than ninety (90) days.  The Developer’s rights with respect to the
establishment and operation of the Wetlands Mitigation Bank (including without
limitation, the right to receive and market the mitigation credits and retain proceeds
derived from the sale of such credits) may be transferred, assigned or pledged
by the Developer, in its sole discretion.


 


SECTION 3.6.  Additional Developer Commitments.  (a) Job Skills Training.  (i) Concurrent with submittal of Item No.
15 of the Master Plan requirements described in Section 6.2(c)(i)(15)
hereof, Developer shall prepare and submit to the Authority for its review and
comment, a written plan for the establishment and operation by (or on behalf
of) the Developer of a job skills center intended to aid prospective employees
of the Project in acquiring the education and job skills necessary to obtain
and maintain employment at the Project. 
Such plan shall include a reasonable estimate of the amount to be
expended by (or on behalf of) the Developer or its designee (which designee
shall be subject to the reasonable approval of the Authority) with respect to
the Job Skills Program (as hereinafter defined).  Developer shall, at no cost or expense to the Authority, initiate
and maintain the program through the opening of the Entertainment/Retail
Component.  Following receipt of the
Authority’s reasonable comments, the Developer shall endeavor in good faith to
revise such proposed plan, which revision shall establish the scope of the job
skills programs that the Developer shall be required to initiate and maintain
through the opening of the Entertainment/Retail Component (the “Job Skills
Program”).


 


(ii)                                  Within six (6) months
prior to the scheduled Completion Date of the Entertainment/Retail Component,
the Developer shall provide a written notice to the Authority stating that the
Job Skills Program has been effectuated, together with the results of


 


13

















 


such Program, as of the date of such notice; provided  however,
that neither the provision of such notice nor the information set forth therein
shall impact, in any manner, the other rights or obligations of the Parties
under this Agreement.  From and after
the Completion of the Entertainment/Retail Component, the Developer shall
endeavor in good faith to cause the Job Skills Program to be reviewed annually
through reasonable internal procedures established by Developer or its
designee, taking into consideration the results of the prior twelve (12)
months.  Based upon such internal
review, the Developer shall provide the Authority with a written description of
any modifications to the Job Skills Program proposed to be implemented during
the next twelve (12) months.  The
foregoing obligation shall, subject to the cap on expenditures set forth in Section 3.6(c)
below, terminate on the earlier of (A) the first anniversary date of Completion
of the Project in its entirety, or (B) three (3) years after Completion of the
Entertainment/Retail Component.


 


(b)                                 Small
Business Marketing Plan.  (i)
Concurrent with submittal of Item No. 15 of the Master Plan requirements
described in Section 6.2(c)(i)(15) hereof, Developer shall prepare
and submit to the Authority for its review and comment, a marketing plan to
assist small businesses located in the Municipalities.  Such plan shall be developed generally in
accordance with the description set forth in Exhibit D hereto.


 


(ii)                                  Following receipt of
the Authority’s reasonable comments, the Developer shall endeavor in good faith
to revise such proposed plan which revision shall establish the scope of the
Small Business Marketing Plan required to be initiated and maintained through
the opening of the Entertainment/Retail Component (the “Small Business
Marketing Plan”).


 


(iii)                               Within six (6) months
prior to the scheduled Completion Date of the Entertainment/Retail Component
(as set forth on any final construction schedule to be furnished to the
Authority pursuant to any Construction Management Agreement), the Developer
shall provide written notice to the Authority stating that the Small Business
Marketing Plan has been effectuated, together with the results of such Plan, as
of the date of such notice; provided  however, that neither the
provision of such notice nor the information set forth therein shall impact, in
any manner, the other rights or obligations of the Parties under this
Agreement.  From and after Completion of
the Entertainment/Retail Component, the Developer shall endeavor in good faith
to cause the Small Business Marketing Plan to be reviewed annually, taking into
consideration the results of the prior twelve (12) months.  Based upon such review, the Developer shall
provide the Authority with a written description of any modifications to the
Small Business Marketing Plan proposed to be implemented within the next twelve
(12) months.  The foregoing obligation
shall, subject to the cap on expenditures set forth in Section 3.6(c)
below, terminate on the earlier of (A) the first anniversary date of Completion
of the Project in its entirety, or (B) three (3) years after Completion of the
Entertainment/Retail Component.


 


(c)                                  Financial
Commitment.  Notwithstanding the
provisions of this Section 3.6 to the contrary, the total cost to
the Project, including but not limited to, Developer’s or its designee’s costs
relating to implementation, of the Job Skills Program and the Small Business
Marketing Plan, as provided in Section 3.6 (a) and (b)
respectively, shall not in the aggregate


 


14

















 


exceed One Million Dollars ($1,000,000).  The Developer shall (in the exercise of its
sole discretion) determine the amount, timing and nature of such expenditures.


 


SECTION 3.7.  Developer Interference; Authority
Interference; Compliance with Existing Sports Complex Agreements.  The Parties acknowledge and agree that the
business activities at the Sports Complex, including without limitation the
Continental Airlines Arena, and the development, construction and operation of
the Project creates the potential for interference by the Authority and the
Developer with the conduct of business operations by the other.  In recognition of the foregoing, the Parties
shall provide hereinbelow and in the Project Agreements (whether now in effect
or to come into effect in the future) such commercially reasonable terms,
covenants, conditions and dispute resolution procedures to which the Parties
may mutually agree to avoid and resolve Authority Interference and Developer
Interference.


 


(a)                                  Developer
Interference. In the performance of the Developer’s obligations and
exercise of the Developer’s rights under this Agreement and the Project
Agreements, the Developer shall exercise diligent and commercially reasonable
efforts so that performance by the Developer of its obligations or the exercise
of its rights hereunder or under any Project Agreement shall be carried out in
such manner as to minimize or eliminate Developer Interference.  In furtherance of the foregoing, Developer
shall take all actions reasonably required to fully and completely enforce all
of its legal rights and remedies against any third party performing the
obligations or exercising the rights of Developer hereunder or under any
Project Agreement or any third party utilizing the Project Site if such
performance, exercise or use results in a Developer Interference or otherwise
would constitute a breach of Developer’s obligations hereunder or under the
Project Agreements.  The Parties shall
use diligent and commercially reasonable efforts so that the potential for
Developer Interference shall be minimized.  
However, in light of the Developer’s construction and operation of the
Project, the Parties acknowledge and agree that the potential for Developer
Interference exists (notwithstanding the good faith actions of the Parties)
and, as such, the occurrence of Developer Interference shall not be the basis
for a determination by the Authority that a Developer Event of Default has
occurred.  With respect to Developer
Interference prior to the Ground Lease Closing Date, the terms of this
Agreement and the Access and Indemnity Agreements shall control.  Following the Ground Lease Closing Date, the
actions of the Parties with respect to Developer Interference and Authority
Interference shall be governed by the applicable provisions of this Agreement
as the same may be modified by the terms of the Construction Management
Agreement, the Project Operating Agreement or other applicable Project
Agreements.


 


(b)                                 Authority
Interference. The Authority shall exercise diligent and commercially
reasonable efforts so that performance by the Authority of its obligations or
the exercise of its rights hereunder or under any Sports Complex Agreement
shall be carried out in such manner as to minimize or eliminate Authority
Interference.  In furtherance of the
foregoing, the Authority shall take all actions reasonably required to fully
and completely enforce all of its legal rights and remedies against any third
party performing under a Sports Complex Agreement or any third party utilizing
the Sports Complex if such performance or use results in Authority Interference
or otherwise would constitute a breach of the Authority’s obligations hereunder
or under the Project Agreements.  The
Parties shall each use diligent and commercially reasonable efforts so that the
potential for Authority Interference shall be minimized.  However, in light of


 


15

















 


the Authority’s operation and use of the Sports Complex facilities, and
the Developer’s construction and operating activities, the Parties acknowledge
and agree that the potential for Authority Interference exists (notwithstanding
the good faith actions of the Parties) and, as such, the occurrence of
Authority Interference after the Ground Lease Closing Date shall not be the
basis for a determination by the Developer that an Authority Event of Default
has occurred.  Rather, in such events,
the actions of the Parties after the Ground Lease Closing Date shall be
governed by the applicable provisions of this Agreement, as the same may be
modified by the terms of the Construction Management Agreement, the Project
Operating Agreement or other applicable Project Agreements.  With respect to Authority Interference prior
to the Ground Lease Closing Date, the terms of this Agreement and the Access
and Indemnity Agreements shall control. 
In no event shall any activity carried out by the Authority pursuant to
the Enabling Legislation with respect to the Sports Complex constitute, in and
of itself, an Authority Interference (i.e. development, construction, execution
of agreements, conveyance of Authority property and other permitted Authority
activities shall not, without demonstration of the Interference by the
Developer, constitute Authority Interference.


 


(c)                                  Recognition and
Priority of Existing Sports Complex Agreements.  Developer acknowledges that Developer has had the opportunity to
review certain of the agreements relating to the Sports Complex, as more
particularly described on Exhibit “H” attached hereto (the “Existing
Sports Complex Agreements”) and shall review certain other agreements
relating to the Sports Complex to be provided by the Authority during the due
diligence period provided pursuant to Section 6.4 hereof.  Prior to the termination of the due
diligence period provided in Section 6.4 hereof, Authority and
Developer shall mutually agree on those Due Diligence Documents to be
incorporated into Exhibit “H-1” as the final list of documents and
agreements, which shall be initialed by the Parties and attached hereto, and
thereafter Exhibit “H-1” shall constitute the Existing Sports Complex
Agreements.  If the Parties fail to
agree upon Exhibit “H-1” and this Agreement is not terminated, Exhibit
“H” shall constitute the list of Existing Sports Complex Agreements.  Subject to the rights and obligations
provided in Section 6.4 hereof, Developer recognizes the Existing
Sports Complex Agreements and acknowledges that the rights granted to Developer
and the obligations assumed by Developer hereunder are in all respects
subordinate to the rights and obligations of the parties to the Existing Sports
Complex Agreements.


 


(d)                                 Giants Lease.
Developer acknowledges and agrees that the “Existing Sports Complex Agreements”
include that certain Agreement of Lease between the Giants and the Authority
dated as of August 26, 1971 together with such amendments and restatements
as are set forth on Exhibit “H” attached hereto, (collectively, the “Giants
Lease”). Developer also acknowledges that the Authority and the Giants have
negotiated, but not executed, a memorandum of understanding providing for,
among other things, the renovation of Giants Stadium pursuant to an amendment
or restatement of the Giants Lease. The Parties recognize that a renovation of
Giants Stadium may add additional complications and complexities to the
transaction contemplated by this Agreement and the Project Agreements. The
nature and extent of the complications and complexities will not be fully known
until such time as the Authority and Giants enter into a binding amendment or
restatement of the Giants Lease memorializing the rights, duties and
obligations of the parties under the above-referenced memorandum of
understanding. The Authority and the Developer recognize that it is in their
mutual best interest


 


16

















 


to provide in this Agreement and in the Project Agreements flexibility
to accommodate the renovation of Giants Stadium. The Authority recognizes that
the Developer has entered into this Agreement and made certain commitments to
the Authority based in part on reliance on a time schedule that does not
have unlimited flexibility. Accordingly, with respect to the Giants Lease and
proposed redevelopment of Giants Stadium the Parties agree as follows:


 


(i)                                     The Authority
anticipates that a final agreement will be reached with the Giants after the
Effective Date, but prior to June 1, 2004 (hereinafter referred to as the
“Giants’ Negotiation Period”). The Authority represents to the Developer
that the terms and conditions of the memorandum of understanding are not final,
and that the Authority will use its good faith and commercially reasonable
efforts to negotiate a final agreement with the Giants that (A) is not
materially inconsistent with the terms and conditions of this Agreement or the
Project Agreements, (B) does not contravene the rights granted to the Developer
or the Project hereunder (or any Component thereof) hereunder including but not
limited to the rights granted under Section 3.7(b) or Articles
12, 13 and 20 herein, (C) will not result in a Material Adverse Effect on
the Project or the Master Plan, (D) will not require a Major Modification or
delay or materially increase the cost of the Project to the Developer including
but not limited to the Traffic and Infrastructure Improvements (“A” through “D”
above are hereinafter collectively referred to as the “Limiting Factors”).


 


(ii)                                  During the Giants
Negotiation Period, (A) in the course of developing the Master Plan and
obtaining Development Approvals, the Developer and Authority shall exercise
their diligent and commercially reasonable efforts to consult and cooperate for
the purpose of identifying the issues related to integrating the renovation of
Giants Stadium with the terms and conditions of this Agreement and the Project
Agreements, (B) the Developer shall use commercially reasonable efforts to
maintain flexibility within the Master Plan to accommodate implementation of
the renovation of Giants Stadium; provided  however, that such
obligation shall not be deemed to require the Developer to modify the Project
(or any Component thereof or financing related thereto) or accommodate changes
to the extent that such modification or accommodation would trigger any of the
Limiting Factors, (C) the Authority shall use its diligent and commercially
reasonable efforts to promptly proceed to finalize the documentation with the
Giants consistent with the terms of the memorandum of understanding and
Limiting Factors, and (D) the Authority will endeavor in good faith and use its
diligent and commercially reasonable efforts to provide the Developer with
periodic updates of the progress of such negotiations and obtain from the
Giants a confidentiality agreement which permits the Authority to keep the
Developer informed of the progress and content of the negotiations (and the
Developer shall agree to execute such mutually acceptable confidentiality
agreement).


 


(iii)                               If the Authority does
not enter into a final amended Giants Lease for the renovation of Giants
Stadium with the Giants prior to the expiration of the Giants’ Negotiation
Period, (A) the Developer shall have no further duties or obligations under
this Section 3.7(d) with respect thereto other than as expressly
set forth in the other terms of this Agreement or the Project Agreements, and
(B) the Authority shall not withhold, condition or delay any Approval described
or required hereunder that affects or might affect the Giants, the Giants Lease
or the renovation of Giants Stadium. If the Authority does reach a final
agreement with the Giants prior to the expiration of the Giants’ Negotiation
Period, the Authority shall


 


17

















 


deliver a complete copy to the Developer. If the Giants Lease violates
the Limiting Factors, Developer shall have the right to waive such violations
or elect to terminate this Agreement upon written notice to the Authority
within thirty (30) days of the expiration of the Giants’ Negotiations Period.
If the Developer terminates this Agreement as aforesaid, the Authority shall
promptly return to Developer the Deposit Letter of Credit and the monies paid
under the Deposit Letter and thereafter the parties shall have no further
rights, duties or obligations to each other hereunder.


 


(iv)                              If the final amended
Giants Lease does not violate the Limiting Factors or Developer elects to waive
any such violation, the Developer and Authority shall promptly and in good
faith negotiate such modifications to the Project Agreements as may be
necessary to accommodate the terms of the Giants Lease; provided that any such
modifications are consistent with the Limiting Factors. At such time as the
Authority and Developer agree on such modifications to the Project Agreements,
the Developer, upon request from the Authority, shall acknowledge in writing that
the amended Giants Lease as amended through the date of Developer’s
acknowledgement constitutes an Existing Sports Complex Agreement and shall be
deemed added to Exhibit “H” or Exhibit “H-1”, as the case may be,
attached hereto. The provisions of Section 21 will govern any
disputes between the Developer and the Authority associated with modifications
to the Project Agreements as aforesaid.


 


(e)                                  New
Sports Complex Agreements.  (i) The
Authority shall not execute any New Sports Complex Agreement or enter into, or
permit any other party (to the extent the Authority has consent or approval
rights over the agreements entered into by the other party), to enter into any
New Sports Complex Agreement that may presently or might in the future have a
Material Adverse Effect on the Developer or the Project (or any
Entertainment/Retail Component Use, any Office Component Use and/or any Hotel
Component Use, including parking related thereto), may result in Authority
Interference or breach the non-competition and other restrictive covenants
provided in Section 13.6 hereof or result in a breach by the
Authority of the Project Agreements. 
The Authority shall promptly provide to the Developer for its review,
copies of all proposed New Sports Complex Agreements.


 


(ii)                                  The Developer and the
Project shall not be bound by, and the provisions of  Section 3.7(a) hereof relating to Developer
Interference shall not apply to, any New Sports Complex Agreement unless the
Developer has reviewed and Approved such New Sports Complex Agreement.  Subject to the foregoing, Developer shall,
to the extent practicable (without adversely impacting the Developer’s rights
or obligations hereunder or under any Project Agreement and without materially
increasing the Developer’s cost of the design, permitting, construction, use,
operation or management of the Project and/or the Traffic and Infrastructure
Improvements), cooperate with the Authority at the Authority’s request with
respect to the negotiation, renewal, and/or extension of any Existing Sports
Complex Agreements and/or any New Sports Complex Agreements.  Such cooperation shall be at no
out-of-pocket third-party cost or expense to the Developer.


 


(f)                                    Shared
Parking Plan.  Notwithstanding the
foregoing, the Parties acknowledge and agree that the Developer intends to
develop the Parking Component and carry out its obligations hereunder through
implementation of a shared parking plan pursuant to which


 


18

















 


(i) the Developer will provide for the Authority’s
use of a portion of the Parking Component so as to permit the Authority to
satisfy its obligations under the Sports Complex Agreements, and (ii) the
Authority shall make at least 4,500 parking spaces located on the existing
surface parking lots located to the west of the Project Site available to the
Developer at all times other than the days on which parking is required for
events being held at the Meadowlands Complex. 
The specific provisions concerning such shared parking plan shall be set
forth in the Construction Management Agreement, the Project Operating Agreement
and the Declaration.


 


(g)                                 Compliance
with “Smart Growth” Criteria.  The Parties shall use commercially reasonable
efforts to utilize the Parking Component so as to comply with State “smart
growth” transportation criteria.


 


(h)                                 No
Interference.  In consideration of
the foregoing, the Parties agree that use of (i) a portion of the Parking
Component by the Authority (as described in Section 3.7(f)(i)
above) will not constitute Authority Interference, and (ii) the surface parking
lots by the Developer (as described in Section 3.7(f)(ii) above)
will not constitute Developer Interference.


 


(i)                                     Indemnification.  The rights, obligations and liabilities of
the Parties under this Section 3.7 shall be subject to the mutual
indemnification provisions of Section 17.6 and Section 17.7
hereof.


 


ARTICLE 4

THE PROJECT SITE


 


SECTION 4.1.  Project Site.  The Project Site consists of the surface of
the land, subsurface beneath the land and airspace above the land, as more
particularly described in Exhibit “A” attached hereto, subject to
Permitted Exceptions.


 


SECTION 4.2.  Title Review; Permitted Exceptions.  (a) Title Review.  Prior to the Effective Date, the Developer
has ordered (but not received) a commitment for insurance of the Developer’s
leasehold interest in the Project Site to be issued in favor of the Developer
(the “Title Insurance Commitment”) as the lessee of the Project
Site.  Such Title Insurance Commitment
shall be written by Fidelity National Title Insurance Company, or such other
title insurance company selected by the Developer and licensed to do business
in the State of New Jersey (“Title Insurer”).  Such Title Insurance Commitment as initially issued and without
clearance or omission of any items, together with copies of all recorded
documents and other items noted as exceptions therein, shall be promptly
provided by the Developer to the Authority, but in no event later than sixty
(60) days following the Effective Date.


 


(b)                                 Objections to Title;
Permitted Exceptions.  (i) Not later
than sixty (60) days after the date on which the Developer provides the Title
Insurance Commitment to the Authority and obtains the Perimeter Survey, as
provided in Section 6.1(a) hereof (the “Title Objection Date”),
the Developer shall inform the Authority in writing of any objections to title
and survey (such objections to survey as provided under Section 6.1(a)
hereof and collectively, such title and survey objections are hereinafter
referred to as the “Title Objections”) to the real property covered by
the Title Insurance Commitment, including without limitation, any


 


19

















 


encumbrance adversely affecting the proposed use or enjoyment of the
Project Site in accordance with the Master Plan.  For purposes of this Section, Title Objections shall not include
any easements or similar encumbrances that can be resolved, removed or
otherwise addressed by the Developer as part of, or as a Material Condition
(such as, but not limited to, on-site utilities that are to be relocated as
part of construction of the Project), without any additional material cost to
the Developer in excess of amounts contemplated to be expended by Developer
pursuant to the terms hereof.


 


(ii)                                  The Authority shall
(at its sole cost and expense) use diligent and commercially reasonable
efforts, at the earliest practicable date but in no event later than the
Material Conditions Termination Date, to resolve any Title Objections to the
reasonable satisfaction of the Title Insurer and the Developer such that the
Title Insurer agrees to issue its Title Insurance Commitment to omit or provide
affirmative insurance with respect to all Title Objections in question in a
manner reasonably satisfactory to the Developer and its Project Lenders.  The Authority hereby agrees to cure and
cause to be released any or all mortgages, deeds of trust and other monetary
liens or encumbrances (including, without limitation, mechanics and materialmen’s
liens (except for those liens which arise out of work performed by (or on
behalf of) the Developer) and judgment and/or attachment liens, and liens
arising as a result of delinquent taxes or assessments), affecting all or any
portion of the Project Site which exist as of the Effective Date and/or come
into existence on or prior to the Ground Lease Closing Date and if the
Authority fails to do so, any such liens (except for those liens which arise
out of work performed by (or on behalf of) the Developer) and except for
mechanic’s or materialmen’s liens which the Authority is contesting in good
faith and which have been bonded over by the Authority or insured over by the
Title Insurer in a manner reasonably satisfactory to the Developer and its
Project Lender(s) shall be paid out of the proceeds of and credited against the
Development Rights Fee (as the same may be adjusted pursuant to the terms of
this Agreement); provided  however, that the Authority shall not
be obligated to cure non-consensual liens that, in the aggregate, exceed the amount
of the Development Rights Fee; and provided further that, in the event that
such non-consensual liens, in the aggregate, exceed the amount of the
Development Rights Fee, the Developer shall have the right (but not the
obligation) to cure such liens on the Authority’s behalf.  In such event, the amount paid by the
Developer shall be offset against any payments then due and payable or to be
paid by the Developer during the term of this Agreement, the Ground Lease or by
a Component Entity under any Component Lease (including specifically and
without limitation, the Ground Rent and/or the Developer PILOT Payments).  If any Title Objection is not resolved to
the Developer’s and its Project Lenders’ reasonable satisfaction as aforesaid
prior to the Material Conditions Termination Date, as the same may be extended
from time to time in accordance with the terms of this Agreement, the Material
Condition relating to Title Objections set forth in Section 8.2(b)(viii)
hereof shall be deemed not to have been satisfied, unless the Developer waives
such Title Objection by written notice to the Authority.


 


(iii)                               Any defect, lien,
encumbrance or other objection to title shown on the Title Insurance commitment
and/or survey and not raised in a timely manner as aforesaid (and any such
objection waived by the Developer as aforesaid) shall constitute a “Permitted
Exception(s)” hereunder and under the Ground Lease and any applicable Component
Lease (“Permitted Exceptions”). 
A schedule of Permitted Exceptions will be annexed to the Ground


 


20

















 


Lease prior to execution.  Upon
execution and delivery of the Ground Lease, the Developer shall be deemed to
have elected to proceed hereunder subject to all Permitted Exception(s).


 


(c)                                  Indemnification.  The rights, obligations and liabilities of
the Parties under this Section 4.2 shall be subject to the mutual
indemnification provisions of Section 17.6 and Section 17.7
hereof.


 


SECTION 4.3.  Title Insurance. As a
condition to execution of the Ground Lease, the Title Insurer shall issue to
the Developer or be irrevocably committed to issue to the Developer an American
Land Title Association Lessee’s Policy with such endorsements which the
Developer or the Project Lender(s) shall reasonably require, including, without
limitation, such endorsements as may be necessary to cure Title Objections
which the Authority has elected or is obligated to cure pursuant to the terms
of this Agreement (the “Title Policy”), in the amount to be determined
by the Developer, but in no event less than the amount of the Development
Rights Fee payable on the Ground Lease Closing Date (as the same may be
adjusted pursuant to the terms hereof), insuring that the leasehold interest in
the Project Site is vested in the Developer subject only to the Permitted
Exceptions.  The Developer shall be
entitled to request that the Title Insurer provide such additional endorsements
(or amendments) to the Title Policy as the Developer or the Project Lender(s)
may reasonably require, provided that (a) such additional endorsements (or
amendments) shall be at no cost to, and shall impose no additional liability on
the Authority (unless such endorsements are required in order to cure any Title
Objection that remains by reason of the failure of the Authority to cure same
in accordance with the terms hereof, in which case the Authority shall bear the
cost) and (b) the Developer’s obligations to effectuate the Ground Lease
Closing under this Agreement shall not be conditioned upon receipt of such
additional endorsements and the Ground Lease Closing shall not be delayed as a
result of the Developer’s request or inability to obtain such additional
endorsements, unless such endorsements are required in order to cure any Title
Objections and are otherwise not waived by the Developer.


 


ARTICLE 5

PAYMENTS AND FINANCIAL OBLIGATIONS


 


SECTION 5.1.  Developer’s Financial Obligations.  Except as expressly provided to the contrary
herein, including specifically and without limitation (i) Section 3.3(d)
hereof (with respect to payment of the costs of the Final Traffic and
Infrastructure Improvements that exceed the Traffic and Infrastructure Cap
Amount), (ii) Section 4.2(b) hereof (with respect to payments
required to cure Title Objections), and (iii) Section 15.3(f)
hereof (with respect to payment of the Authority’s Environmental Remediation
Contribution), the costs of evaluating, designing, permitting, implementing,
constructing, managing and operating the Project shall be borne solely by or
through the Developer, including without limitation, payment of fees for
Development Approvals, Building Permits, cost overruns and the Traffic and
Infrastructure Improvements (up to, but not exceeding, the Traffic and
Infrastructure Cap Amount); provided  however, that the Authority
shall be obligated to pay any costs (including without limitation, its own
legal fees and expenses) incurred by the Authority with respect to the
preparation, negotiation and/or review of any Project Agreements and
Development Approvals by the Authority.


 


21

















 


SECTION 5.2.  Development Rights Fee; Refundable
Security Deposit; Ground Rent. (a) Development Rights Fee.
(i) In consideration for the right to construct and operate the Project on the
terms set forth in this Agreement, the Developer has agreed to pay a
development rights fee in the amount of One Hundred Sixty Million Dollars
($160,000,000) (the “Development Rights Fee”).  The Developer shall not, however, be obligated to pay the
Development Rights Fee until the Ground Lease Closing Date occurs and the
Authority shall not be obligated to execute and deliver the Ground Lease unless
the Development Rights Fee has been paid in full.  The Developer shall pay (or, to the extent applicable, the Component
Entity executing the Component Agreement shall pay its allocated portion of)
the Development Rights Fee (less the sum of Five Hundred Thousand Dollars
($500,000)) paid to the Authority pursuant to the Deposit Letter and any
adjustments, credits or offsets expressly applicable under this Agreement) to
the Authority on the Ground Lease Closing Date.


 


(ii)                                  The Development
Rights Fee shall be allocated among the Entertainment/Retail Component, the
Office Component and the Hotel Component. 
From and after the date that each Component Agreement and/or Component
Lease is executed, the Developer shall be released from the obligation to pay
the allocated portion of the Development Rights Fee with respect to the
Component Interest that is the subject of such Component Agreement and
Component Lease, and the Authority shall thereafter look solely to the
applicable Component Entity for payment of such portion of the Development
Rights Fee; provided  however, that (A) any reduction in the
Development Rights Fee expressly provided herein (including, without
limitation, a reduction pursuant to Section 13.3 hereof) shall be
made from the full amount of the Development Rights Fee without taking into
account any allocation of the Development Rights Fee amongst the Project
Components by Developer and (B) the Authority shall not be obligated to execute
the Ground Lease, any Component Lease or any Component Agreement prior to
receipt of the entire Development Rights Fee in accordance with Section 5.2(a)
above.


 


(b)                                 Refundable
Security Deposit.  In order to
assure the full and timely performance by the Developer of its obligations
under this Agreement from and after the Effective Date until the Ground Lease
Closing Date (or the Material Conditions Termination Date, as the case may be),
the Developer has agreed to make payment to the Authority of a refundable
security deposit in the amount of Ten Million Dollars ($10,000,000) (the “Refundable
Security Deposit”), through delivery of an irrevocable, direct pay letter
of credit issued by a financial institution reasonably acceptable to the
Authority (the “Deposit Letter of Credit”).  The Deposit Letter of Credit shall name the Authority as
beneficiary and shall be substantially in the form set forth in Schedule 5.2(b)
hereof.  The Refundable Security Deposit
shall be delivered by the Developer to the Authority on the Effective Date.


 


(c)                                  Disposition
of Refundable Security Deposit.  The
Refundable Security Deposit shall be held (but not used) by the Authority
unless released in accordance with the terms hereof.  Upon such release, the Refundable Security Deposit shall be
disbursed as set forth hereinbelow:


 


(i)                                     In the event that
this Agreement is terminated by the Authority as a result of the occurrence of
a Developer Event of Default at any time prior to the Ground Lease


 


22

















 


Closing Date, and no Authority Event of Default shall have occurred and
be continuing, the Refundable Security Deposit shall be retained by the
Authority as liquidated and final damages, as the case may be.  From and after the date that the funds
representing the Refundable Security Deposit are released to the Authority,
Developer shall have no further obligation or liability to the Authority with
respect to the Project and the Authority shall be released and discharged from
any further obligations to Developer hereunder, except for any obligations of
Developer or Meadowlands Mills Limited Partnership under this Agreement or any
obligations under the Access and Indemnity Agreements that are expressly stated
to survive termination.


 


(ii)                                  In the event that
this Agreement is terminated by Developer as a result of (A) the occurrence of
an Authority Event of Default, so long as no Developer Event of Default shall
have occurred and be continuing, or (B) failure to satisfy the Material
Conditions set forth in Section 8.2 hereof on or prior to the
Material Conditions Termination Date (and such failure is not the result of a
Developer Event of Default), then the Refundable Security Deposit and Deposit
Letter monies shall be promptly returned to the Developer.


 


(iii)                               In the event that the
Material Conditions set forth in Section 8.2 hereof have been
satisfied or waived on or prior to the Material Conditions Termination Date,
the Deposit Letter of Credit shall be returned to the Developer on the Ground
Lease Closing Date simultaneously with payment of the Development Rights Fee.


 


(iv)                              In the event that the
Developer willfully elects not to proceed with performance of its material obligations
under this Agreement (whether prior to or on the Material Conditions
Termination Date), and such election is not the result of the occurrence of a
Force Majeure Event or Authority Event of Default that precludes the Developer
and/or the Authority from fully satisfying the obligations provided herein on
the terms and conditions herein provided or the result of the non-satisfaction
of any Material Condition, the Refundable Security Deposit shall be paid to the
Authority.  From and after the date that
the funds representing the Refundable Security Deposit are released to the
Authority, the Developer shall have no further obligation to the Authority with
respect to the Project and the Authority shall be released and discharged from
any further obligations to Developer hereunder, except for any obligations of
Developer or Meadowlands Mills Limited Partnership under this Agreement or the
Access and Indemnity Agreements that are expressly stated to survive the
termination.


 


(c)                                  Payment
of Balance of Development Rights Fee. 
In the event that the Material Conditions set forth in Section 8.2
hereof have been satisfied or waived by the Developer on or prior to the
Material Conditions Termination Date, the Developer shall make payment of the
balance of the Development Rights Fee (in the amount of One Hundred Fifty-Nine
Million Five Hundred Thousand Dollars ($159,500,000), to the Authority on the
Ground Lease Closing Date, subject to such pro-rations and adjustments as are
expressly provided for herein.  Concurrently
with the Authority’s receipt of the Development Rights Fee, the Authority shall
return the Deposit Letter of Credit to the Developer, together with a letter
confirming the cancellation and surrender of the Deposit Letter of Credit,
signed by an authorized signatory of the Authority.


 


23

















 


(d)                                 Ground
Rent.  (i) In consideration for the
Authority’s execution of the Ground Lease and the Developer’s rights to lease
and utilize the Project Site for the purposes set forth in this Agreement and
the Ground Lease, during the term of the Ground Lease, subject to the terms
hereof, the Developer shall pay the Ground Rent to the Authority on the dates
and in the amounts set forth on Schedule 5.2(d) hereto.


 


(ii)                                  From and after the
date that a Component Lease and Component Agreement are executed, the Developer
shall be released from the obligation to pay Ground Rent with respect to the
Component Interest that is the subject of such Component Lease and Component
Agreement and the Authority shall thereafter look solely to the applicable
Component Entity for payment of such portion of the Ground Rent.  Notwithstanding anything herein to the
contrary, Developer shall not allocate any amount in excess of one-third of the
obligation to pay Ground Rent to any one of the Hotel Component and Office
Component.


 


SECTION 5.3.  PILOT Payments.  (a) Developer hereby covenants and agrees
that it shall pay to the Authority on a quarterly basis, or on such dates
otherwise established by the Settlement Agreement, as same may be amended
pursuant to this Agreement, those amounts identified as “PILOT Payments” on
Attachment 1-F of the Response to Third RAI, as referenced in the definition of
Developer’s Response.  Following the
final year set forth on said Attachment 1-F, Developer shall continue to make
such payments for the term of the Ground Lease, as such term may be extended,
in amounts increasing from the amount paid in the final year identified on
Attachment 1-F of the Response to Third RAI, such increases to be determined by
the same method by which increases to Ground Rent are calculated in Schedule 5.2(d)
(but without regard to any provision for reduction set forth therein).  All payments required to be made pursuant to
this Section 5.3(a) shall be referred to as “Developer PILOT
Payments”.


 


(b)                                 Covenants; Property
Tax Waiver.  The Authority
acknowledges that the transaction contemplated hereunder and the covenant by
Developer to make Developer PILOT Payments provided herein assumes that the
Project Site remains tax exempt for real estate ad  valorem tax
purposes.  Developer acknowledges that,
pursuant to the Enabling Legislation and the Settlement Agreement, payments in
lieu of real property taxes (“PILOT Payments”) are payable to the Borough
by the Authority in connection with facilities located within the Sports
Complex as of the Effective Date.  The
amount of PILOT Payments is fixed by the Settlement Agreement; however, the
Authority shall be responsible for negotiating and finalizing amendments to the
Settlement Agreement, if any, relating to the Project, including without
limitation, a legally binding and enforceable waiver (in recordable form and to
run with the land) by the Borough of its rights under the Settlement Agreement
(or any successor agreement thereto) to assess and collect ad  valorem
real property taxes from the Developer with respect to its leasehold interest
in the Project Site (the “Property Tax Waiver”).  To the extent that the amount agreed to be
paid by Developer as Developer PILOT Payments pursuant to Section 5.3(a)
hereof exceeds the amount of PILOT Payments required to be paid to the Borough
by the Authority, the Authority shall retain such excess to be used for any
lawful Authority purpose; provided  however, that the Authority
shall provide written notice to the Developer of the Authority’s determination
as to the use and distribution of such excess PILOT Payments.  In the event that the Borough or any third
party challenges the Authority’s actions with respect to the Authority’s
payment of the PILOT Payments, the Authority shall promptly take all such
actions


 


24

















 


as are required to contest such challenge and/or defend such
actions.  To the extent that the
Developer incurs any costs (including without limitation, reasonable attorneys
fees and disbursements) in connection with any such challenges (whether in the
defense of same or as a result of a final, non-appealable order of a court of
competent jurisdiction determining that the Developer is obligated to pay any
additional amounts), the Developer may offset the costs incurred (following the
provision of written notice and supporting documentation to the Authority),
together with interest thereon from the date such costs were incurred at the
Overdue Rate against any amounts then due and payable or to be paid to the
Authority under this Agreement (including specifically and without limitation,
the Developer PILOT Payments) and/or any other Project Agreements.  For the purposes of this Agreement, PILOT
Payments and Developer’s PILOT Payments shall be deemed to cover payment for
all services provided by (or on behalf of) the Borough to non-residential
taxpayers, the costs of which are recovered by the Borough through payment of
ad valorem real property taxes (including specifically and without limitation,
police, fire, emergency medical, etc.). 
In the event that, notwithstanding payment of the Developer PILOT
Payments, the Developer is billed for any of the foregoing services or in the
event that the Borough imposes real property assessments and taxes directly
against the Developer, the cost for any such assessments, taxes and services
paid by the Developer shall be offset, together with interest thereon at the
Overdue Rate (plus any costs incurred by the Developer with respect to
contesting same, including without limitation, reasonable attorneys fees)
against any amounts due and payable or to be paid by the Developer to the
Authority (including specifically and without limitation, the Developer PILOT
Payments and Ground Rent) under this Agreement and/or any other Project
Agreements.


 


(c)                                  Allocation of
PILOT Payments.  Nothing contained
herein shall preclude the Developer from allocating the Developer PILOT
Payments among the Component Leases that may be executed with respect to each
of the Entertainment/Retail Component, the Office Component and/or the Hotel
Component, such allocations being limited proportionally as set forth for
Ground Rent in Section 5.2(d)(ii) hereof.  From and after the date that each such Component Lease is
executed (provided that a Component Agreement has also been executed), the
Developer shall be released from the obligation to pay the Developer PILOT
Payments with respect to the Component Interest that is the subject of such
Component Lease and Component Agreement and the Authority shall thereafter look
solely to the applicable Component Entity for payment of such portion of the
Developer PILOT Payment.


 


(d)                                 PILOT Negotiation
Period.  During the period from the
Effective Date to ninety (90) days following the Effective Date (hereinafter
referred to as the “PILOT Negotiation Period”), the Authority shall
negotiate an amendment of the Settlement Agreement effectuating the provisions
of this Section 5.3, including without limitation, the Property Tax
Waiver.  The terms and conditions
relating to such amendment shall be determined by the Authority in its sole
discretion.  In the event that an
amendment of the Settlement Agreement has not been agreed to by the Authority
and the Borough on or prior to the last day of the PILOT Negotiation Period,
the Authority shall provide written notice to such effect to the
Developer.  Thereafter, the Developer
shall have the right to negotiate directly with the Borough with respect to the
matters described in this Section 5.3, including without
limitation, the Property Tax Waiver. 
Any agreement reached by the Developer and the Borough shall be
reasonably acceptable to the Authority. 
The Authority shall be obligated to approve such agreement as long as
such


 


25

















 


agreement does not have a Material Adverse Effect on the Authority and
does not provide for payment by the Authority of amounts in excess of the
Developer PILOT Payment.


 


(e)                                  Authority’s Lien
Rights  Notwithstanding anything
contained herein, the Parties agree that as long as the Project Site remains
tax exempt, the Developer PILOT Payments shall be a continuous lien on and
against the Project Site.  Such lien
shall be perfected (in a manner reasonably determined by the Authority) for all
purposes in accordance with law and the lien thereafter shall be superior to
all non-municipal liens thereafter recorded or otherwise arising, including
without limitation, the lien of any Project Indebtedness.


 


(f)                                    Indemnification.  The rights, obligations and liabilities of
the Parties under this Section 5.3 shall be subject to the mutual
indemnification provisions of Section 17.6 and Section 17.7
hereof.


 


SECTION 5.4.  Authority’s Profit Participation.  (a) The Authority shall be entitled to a
payment, in addition to the Ground Rent, equal to five percent (5%) of ordinary
net cash flow and net capital proceeds after the “Initial Threshold” is
achieved, and ten percent (10%) of ordinary net cash flow and net capital
proceeds after the “Second Threshold” is achieved (the “Authority
Profit Participation”). The Authority Profit Participation shall be paid on
an annual basis after all appropriate calculations are made by the Developer
(or the applicable Component Entity, as the case may be) for the preceding
fiscal year of operation and shall be paid to the Authority, if the Authority
Profit Participation is due and payable to the Authority hereunder upon
completion of the annual audited statements of the Developer (or such Component
Entity).  As used herein, “Initial
Threshold” shall mean that amount which shall equal the aggregate of (i)
all invested capital by the Developer (including any Component Entity) in or in
connection with the Project; (ii) all invested capital by Mills, its Affiliates
or the Developer (including any Component Entity) in or in connection with the
Empire Tract; and (iii) a twenty-five percent (25%) internal rate of return
calculated on the sum of (i) and (ii) above; which shall be received by the
Developer or any Component Entity affiliated with the Developer (including
amounts distributed to the partners of the Developer or such Component Entity)
as distributions from or on account of the Project and the Empire Tract, if
any.  As used herein, “Second
Threshold” shall mean that amount which shall equal the aggregate of (i)
and (ii) above plus a thirty percent (30%) internal rate of return
calculated on the sum of (i) and (ii) above which shall be received by the
Developer and any Component Entity affiliated with the Developer (including
amounts distributed to the partners of the Developer and such Component Entity)
from or on account of the Project and the Empire Tract, if any.  The Authority Profit Participation shall be
paid in any year, after the Initial Threshold and/or Second Threshold are
achieved, that the Developer (or such Component Entity) earns net ordinary cash
flow or net capital proceeds.


 


(b)                                 Allocation.  Nothing herein shall preclude the Developer
from allocating the Authority Profit Participation among the Component Leases
and Component Agreements that may be executed with respect to each of the
Entertainment/Retail Component, the Office Component and/or the Hotel
Component.  From and after the date that
each such Component Lease and Component Agreement is executed, the Developer
shall be released from the obligation to pay the Authority Profit Participation
with respect to the Component Interest that is the subject of the Component
Lease and Component Agreement and the Authority shall


 


26

















 


thereafter look solely to the applicable Component Entity for payment
of such portion of the Authority Profit Participation.  However, notwithstanding such allocation,
the aggregate amount of the payments to be made to the Authority shall not
exceed the payments calculated pursuant to the formula set forth in Section 5.4(a)
hereof.


 


ARTICLE 6

PRE-DEVELOPMENT ACTIVITIES; MASTER PLAN


 


SECTION 6.1.  Surveys.  (a) Perimeter Project Site Survey.  (i) As part of the Title Review to be
conducted under Section 4.2 hereof, the Developer shall (at its
cost and expense) promptly cause a survey to be prepared showing the perimeter
boundaries of the Project Site (the “ALTA Survey” or the “Perimeter Survey”).  The Perimeter Survey shall be prepared by a
surveyor licensed to practice in the State of New Jersey and shall be prepared
in conformance with Minimum Standard Detail Requirements for ALTA/ACSM Land
Title Surveys, 1997, for Urban Surveys, including items 2, 3, 5 and 11 from
Table A.


 


(ii)                                  Any defects,
encumbrances, ambiguities or similar issues identified on the Perimeter Survey
shall be included by the Developer in determining whether there are any Title
Objections, as contemplated by Section 4.2(b) above.


 


(iii)                               The Perimeter Survey
shall be recorded on the Ground Lease Closing Date, together with a short-form
Memorandum of Ground Lease.  The costs
of recording shall be paid by the Developer.


 


(b)                                 Conceptual
Project Site Plan.  A map showing
the Project Site boundaries and proposed location of each Project Component and
the location of all Preliminary Traffic and Infrastructure Improvements has
been prepared by the Developer and reviewed and approved by the Authority (the
“Conceptual Project Site Plan”). 
A copy of the Conceptual Project Site Plan is attached as Schedule 6.1(b)
hereto and shall serve as the basis for development of the Master Plan.


 


(c)                                  Delivery
of Survey.  Promptly upon
completion, the Developer shall provide or cause to be provided to the
Authority (at the Developer’s cost and expense) three (3) original certified or
reproductions of certified copies of the Perimeter Survey, and accompanying
metes and bounds descriptions.  The Developer
shall also provide for each Survey and description a digital version as an Auto
CAD drawing in .DWG or .DFX format on either diskette or CD Rom.


 


SECTION 6.2.  Procedures Governing Review and Approval
of Master Plan.  (a) General.  (i) The Parties acknowledge and agree that
they shall exercise their respective diligent and commercially reasonable
efforts to design and construct the Project and the Traffic and Infrastructure
Improvements in such manner so as to be consistent with (A) the important
public policy, governmental, environmental, land use planning, transportation
and economic goals and prerogatives of the State, the Authority, the County of
Bergen, the NJMC and the Municipalities and to assure that such policies and
goals are protected and/or effectuated in an effective, efficient and
consistent manner, (B) the important policies and prerogatives previously


 


27

















 


articulated by the Stakeholders Advisory Group are effectuated in an
effective, efficient and consistent manner in light of the competing goals and
prerogatives of other affected constituent groups and/or the Developer, (C) the
Authority achieving its desired policy, regional planning and economic goals
and objectives while assuring compliance by the Authority with the duties and
obligations imposed upon the Authority under the Sports Complex Agreements
and/or as required to effectively and efficiently operate the Sports Complex in
the manner envisioned by the Enabling Legislation and in compliance with all
Sports Complex Agreements, and (D) the Developer being able to design, permit
and proceed with construction of the Project in a timely, cost effective and
efficient manner in accordance with this Agreement and the Project Agreements.


 


(ii)                                  In furtherance of the
foregoing, in order to facilitate the development of a mutually acceptable
design, site plan and technical approach to any required Remediation of the
Project Site and construction of the Project Components and Traffic and
Infrastructure Improvements in the most efficient, cost-effective and
consistent manner practicable, the Parties have established the procedures set
forth below for the preparation of a master plan (the “Master Plan”) by
the Developer for submittal to and review and Approval of the Authority in
phases.


 


(b)                                 Purpose
of Master Plan.  (i) Subject to the
terms and conditions of this Agreement, the Developer shall cause the Project
to be constructed and operated in (A) substantially the manner shown and
described in the Approved Master Plan, the narrative description related
thereto, and the drawings, Plans and Specifications, in each case as prepared
by the Developer in support of the applications for the Development Approvals,
as any of the foregoing may be modified from time to time to reflect changes in
the composition of the Project, and (B) consistent in all material respects
with the Conceptual Site Plan or the Approved Master Plan, as the case may be,
the Perimeter Survey and the Development Approvals.


 


(ii)                                  The Master Plan is
intended to provide the Authority with sufficient reasonable information (at
the early stages of Project development) so as to enable it to achieve its
goals and prerogatives and to carry out its obligations with respect to the
ownership and operation of the Sports Complex, while balancing the legitimate
rights, obligations and prerogatives of the Developer.  Subject to the provisions of this Agreement
(and the exercise of any regulatory or similar powers granted to it by the
Enabling Legislation), the Authority may exercise its rights and prerogatives
in furtherance of its policy goals and contractual obligations in such manner
as it reasonably determines (subject to applicable Legal Requirements).  However, following its Approval of the Master
Plan, the Authority’s powers with respect to the design, entitlements, uses,
development and construction of the Project shall be limited to customary
municipal oversight and the review and Approval rights expressly set forth in
this Agreement and the Project Agreements to determine that the Project is
designed, constructed and operated in accordance with the Approved Master Plan
and the terms of this Agreement.


 


(c)                                  Master
Plan Requirements.  (i) The Master
Plan shall include information sufficient to determine compliance with this
Agreement.  As such, the Master Plan
shall address each Project Component and each of the Parking Component Uses,
Entertainment/Retail Component Uses, and, to the extent applicable, Hotel
Component Uses, and Office Component


 


28

















 


Uses. At such time as the Developer submits a
detailed Master Plan for the Office Component and the Hotel Component, the
provisions of this Section 6.2 shall be applicable to such
submittals with the same effect as if such submittals were made as part of the
initial Master Plan and not as a Post-Approval Item (as such term is
hereinafter defined).


 


The Master Plan shall also include the
following:


 


(1)                                  Reasonably detailed
plans depicting existing rights-of-way and easements, as well as temporary and
proposed rights-of-way and easements, in the Project Site, and shared use of
the Authority’s wastewater and stormwater management systems.


 


(2)                                  Reasonably detailed
plans noting the use, location, total gross floor area, plan area, set backs,
height and bulk of all existing and proposed structures within the Project
Site.


 


(3)                                  A reasonably detailed
plan showing vehicular parking and loading areas and a layout of pedestrian and
vehicular and mass-transit circulation patterns in relation to buildings and
public facilities within the Meadowlands Complex and within the vicinity of the
Project Site.


 


(4)                                  Landscape plans
reasonably sufficient to show general design concepts.


 


(5)                                  The Preliminary
Project Sequencing Plan and the Preliminary Traffic and Infrastructure
Sequencing Plan, as such Preliminary Plans may be updated and modified in
accordance with the terms of this Agreement so as to develop the Final Project
Sequencing Plan and the Final Traffic and Infrastructure Sequencing Plan.


 


(6)                                  Such portion of the
Plans and Specifications in reasonably sufficient detail to support Development
Approval applications with respect to each of the Project Components and, to
the extent applicable, the Traffic and Infrastructure Improvements, including
without limitation, elevation drawings.


 


(7)                                  Reasonably detailed
design criteria to be followed for exterior building finishes.  Such criteria shall address exterior
architectural standards, including expectations as to acceptable materials,
non-acceptable materials in highly-visible areas (such as rib-face, split-face
block or pointed CMU), fenestration requirements, required glazing, tints,
etc.  In addition, design criteria
relating to amenities to be constructed for the convenience of the occupants of
each Component.


 


(8)                                  A narrative and
graphic description of the configuration, including spatial relationships of
the buildings to each other and to other Components, Sports Complex and Arena,
location of parking and service areas and the amount of landscaping to be
provided in pedestrian courtyards, parking areas and around the buildings.


 


29

















 


(9)                                  Reasonably detailed
design criteria to be followed for exterior signage and criteria for graphics
packages for exterior Project signage.


 


(10)                            Reasonably detailed
architectural design criteria to be followed with respect to each of the
buildings and structures that comprise the Project.


 


(11)                            A traffic study (“Traffic
Study”) analyzing the impact of the development of the Project on existing
infrastructure.  The Traffic Study shall
assess, among other things, the traffic impacts based upon construction of the
entire Project.  The limits of the study
area shall be submitted to the Authority for review prior to initiating any
field work.


 


(12)                            To the extent not addressed
in the Construction Management Agreement, the Project Operating Agreement
and/or the Declaration, (a) a reasonably detailed parking management plan
describing the impact of the development and construction of each Component on
parking available for the Project and the Sports Complex, and a plan to provide
the Authority with access to and use of parking facilities for the conduct of
Sports Complex operations, and (b) a reasonably detailed plan describing the
impact of the development, construction and, following Completion, operation of
each Component on the Sports Complex and a plan to coordinate such activities
with the use of the Sports Complex by the Authority for the conduct of the
Authority’s activities and operations and/or the Sports Complex Tenants under
the Sports Complex Agreements.


 


(13)                            A reasonably detailed
report analyzing the impact on police, fire and emergency medical services
resulting from the proposed Project and an emergency services plan for the
Project developed in collaboration with the Borough and the Authority.  Such plan shall be timely updated in
connection with the construction of each Component of the Project.


 


(14)                            A map and
schedule setting forth a plan for the accommodation and continued use of
the Arena and the Arena Site, including any renovations, re-use or
redevelopment of the Arena that the Authority may undertake following the
Effective Date in accordance with this Agreement.


 


(15)                            The Job Skills Program
plan, the Small Business Marketing Plan.


 


(16)                            Such additional documents
as the Authority may reasonably request in connection with its review of the
Master Plan all in reasonable detail and consistent in form and substance with
the terms of this Agreement.


 


(ii)                                  The
statements and documents required to be included in the Master Plan may be
combined.  The Master Plan may be
submitted on a phased basis to reflect the individual Project Components (or
Phases thereof) and the Authority shall review such phased submittals, as
received.


 


30

















 


(iii)                               Nothing contained herein
shall preclude the Developer from initially submitting a Master Plan that
provides the above information with respect to the Entertainment/Retail
Component and the initial Phases of the Parking Component, while reserving the
provision of detailed information concerning the Office Component and the Hotel
Component to a later date.  In such
event, the provisions of this Section 6.2 shall be initially
applicable only to the Entertainment/Retail Component and the initial Phases of
the Parking Component.


 


(d)                                 Procedures.  (i) Administrative Completeness.  The Developer shall have the right to submit
to the Authority for administrative completeness, the aforementioned Master
Plan requirements in four (4) distinct sets as follows: (A) Items No. 1, 2,
3, 5 and 11, (B) Items No. 4, 6, 7, 8, 9 and 10, (C) Items No.
12, 13, 14 and 15, and (D) Item No. 16.  Within ten (10) Business Days of submission by the Developer of
one or more of the above-described submittals (A), (B), (C) and/or (D), those
elements of the Master Plan will be reviewed by the Authority for
administrative completeness to determine that the elements set out in the
applicable Items (1) to (16), inclusive, above have been submitted and that the
requirements of this Agreement have been addressed.  If the Master Plan set is deemed to be administratively complete,
the Authority will notify the Developer in writing within such ten (10) day period
and promptly commence review of the Master Plan set for technical completeness
and acceptability, in accordance with the provisions of Section 6.2(d)(ii)
below.  If the Master Plan set is deemed
to be administratively incomplete, the Authority shall advise the Developer in
writing, within ten (10) days of the Authority’s receipt of the Master Plan
set, such notice to set forth a detailed explanation of the deficiencies.  In the event that the Master Plan set is
deemed to be administratively incomplete, within ten (10) Business Days of
receipt of the Authority’s notice, the Developer shall submit or resubmit such
information as shall fully address the matters described in the Authority’s
deficiency notice.  Thereafter, the
Authority shall review such new information only (as opposed to additional
review of previously submitted and accepted information) and shall complete
such review of the Master Plan set within ten (10) Business Days following such
submittal.  The foregoing procedures
shall be repeated until such time as the Master Plan set is deemed to be
administratively complete.


 


(ii)                                  Technical
Completeness.  Within ten (10)
Business Days after the Authority determines that the Master Plan set is
administratively complete, the Authority shall review the documentation
submitted in support of the Master Plan set to determine if the submitted Items
of such Master Plan set are technically complete and to ensure that the
requirements of this Agreement with respect thereto have been satisfied.  If the Master Plan set is deemed to be
technically complete, the Authority shall notify the Developer in writing and
shall thereafter immediately commence its substantive review, as provided in Section 6.2(e)
below.  If the Master Plan set is deemed
to be technically incomplete, the Authority will advise the Developer of such
determination, in writing, within fifteen (15) Business Days of the receipt of
an administratively complete Master Plan set. 
Such notice shall set forth a detailed explanation of the deficiencies
and any additional submittal requirements. 
In the event that the Master Plan set is deemed to be technically
incomplete, within fifteen (15) Business Days of receipt of the Authority’s
notice, the Developer shall submit or resubmit such information as shall fully
address the matters described in the Authority’s deficiency notice.  Thereafter, the Authority shall review new
information only (as opposed to additional review of previously submitted and


 


31

















 


accepted information or a previously approved Master Plan “set”) and
shall complete such review of the Master Plan set within fifteen (15) Business
Days following such submittal.  The
foregoing procedures shall be repeated until such time as the Master Plan set
is deemed to be technically complete.


 


(e)                                  Review
and Approval of Master Plan.  (i)
Within fifteen (15) Business Days of a determination that the submission of the
Master Plan elements (1) to (16) are technically complete, the staff of the
Authority shall either (A) determine that it will recommend to the Authority’s
Board of Commissioners, subject to Section 6.2(e)(v) hereof,
Approval of the Master Plan, or (B) disapprove the Master Plan.  If the Authority staff disapproves the
Master Plan, the Authority staff shall advise the Developer of such
determination, in writing within such fifteen (15) Business Day period (“Disapproval
Notice”).  The Disapproval Notice
shall set forth a detailed explanation of the reasons for such disapproval.


 


(ii)                                  In the event that the
Authority staff disapproves the Master Plan, the Developer shall prepare and
submit to the Authority for its Approval such additional information that
addresses or responds to the deficiencies in the Master Plan and/or the reasons
given by the Authority staff for its disapproval (“Resubmitted Master Plan
Information”).  The Developer may,
but shall not be required to, resubmit the Master Plan in its entirety in
response to the Authority’s Disapproval Notice or, alternatively, the Developer
may submit responsive information only. 
In either event, the Authority shall only review and have a right to
disapprove the Resubmitted Master Plan Information, except to the extent that
an element of the Master Plan that was not previously deficient is materially
and adversely affected thereby.


 


(iii)                               Following submittal of
the Resubmitted Master Plan Information, the Authority staff shall, within
fifteen (15) Business Days, either recommend Approval of or disapprove the
Resubmitted Master Plan Information and such determination shall be set forth
in writing.  If the Resubmitted Master
Plan Information is recommended for Approval (as evidenced by a written notice
from the Authority (the “Approval Notice”)), then the Master Plan shall
be deemed to have been Approved by the Authority, as of the date of the
Authority Board’s adoption of the staff recommendation of the Approval
Notice.  If the Authority staff
reasonably disapproves the Resubmitted Master Plan Information, the Parties
shall follow the procedures set forth in this Section 6.2(e) until
such time as the Authority Approves such Resubmitted Master Plan Information; provided
however, if the Master Plan is not Approved within six (6) months
following receipt of a determination that the Master Plan is technically
complete, or the Developer believes that the Authority’s disapproval prior
thereto is not in accordance with the standards set forth in Section 6.2(g)
hereof, the Developer may dispute the Authority’s disapproval of the Master
Plan and the provisions of Article 21 hereof shall apply.


 


(iv)                              If the scope of the
Master Plan (whether initially or with respect to the Resubmitted Master Plan
Information) creates a need for the Authority to seek outside consulting
services, the time needed to secure such services shall not be included within
the review periods set forth above, but shall be added thereto; provided
however, that such review period extension shall not exceed thirty (30)
Business Days.


 


32

















 


(v)                                 The Parties
acknowledge that the Master Plan and any Post-Approval Items that relate to a
Major Modification requires a vote of the Authority’s Board of
Commissioners.  As such, following
receipt of the Authority staff’s recommendation regarding the Master Plan or
the Major Modification, as the case may be, the Authority’s Board of
Commissioners shall adopt or reject the staff recommendation within forty-five
(45) days following issuance of the written notice advising the Developer that
the Approval Notice has been sent to the Authority’s Board of Commissioners.  The Master Plan shall not be deemed approved
by the Authority until approved by the legally binding vote of a majority of
the Authority’s Board of Commissioners.


 


(vi)                              Any Post-Approval Item
that does not constitute a Major Modification shall not require action by the
Authority’s Board of Commissioners and shall be deemed to have been Approved by
the Authority as of the date of written notice thereof to the Developer from
the Authority’s President (or other authorized official).


 


(f)                                    Approval
of Modifications to Master Plan. 
(i) After the Master Plan is Approved, the Developer may request a
modification of the Master Plan by submitting a revised Master Plan to the
Authority.  In its submittal for
Approval of a modification of the Approved Master Plan, the Developer shall (in
the exercise of its reasonable discretion taking into account all relevant
factors) characterize the proposed modification as either a Minor Modification
or a Major Modification.  Any dispute
over the characterization of a modification shall be resolved in accordance
with the provisions of Article 21 hereof.  Any proposed amendment or modification of the Approved Master
Plan (whether constituting a Minor Modification or Major Modification) (“Post-Approval
Items”), shall be subject to the Authority’s Approval or disapproval, which
shall not be unreasonably conditioned or delayed.  The Authority shall follow the procedures set forth in Section 6.2(d)
and (g) in reviewing any Post-Approval Item (whether constituting a Minor
Modification or a Major Modification). 
The Authority agrees to Approve or disapprove any Post-Approval Items in
writing to the Developer as soon as practicable but no later than thirty (30)
days (in the event of Post-Approval Item that constitutes a Minor Modification)
or sixty (60) days (with respect to any Major Modification) after receipt of
such Post-Approval Item and all information that the Authority deems reasonably
necessary to render an informed decision (the “Response Period”).  Post-Approval Items submitted hereunder
shall contain in the cover letter, cover sheet, or top page, as applicable, a
conspicuous statement that such Item is submitted for Approval under this Section 6.2(f)
and that a response is required within thirty (30) days (for Minor Modifications)
or sixty (60) days (for Major Modifications), as the case may be, of submittal.


 


(ii)                                  In the event that the
Authority disapproves any such Post-Approval Item, the Authority agrees to
notify the Developer in writing setting forth (in reasonable detail) the
reasons for such disapproval and thereafter within five (5) days of such
notice, the Authority shall confer (in person or by telephone) with the
Developer to discuss the reasons for such response and how the Developer can
address the Authority’s concerns.  The
Developer shall thereafter prepare and submit to the Authority for its Approval
such additional information that addresses or responds to the deficiencies in
the Post-Approval Item and/or the reasons given by the Authority for its
disapproval of the Post-Approval Item (“Resubmitted Post-Approval Item
Information”).  The Developer may,
but shall not be required to, resubmit the Post-Approval


 


33

















 


Item in its entirety in response to the Authority’s Disapproval Notice
or, alternatively, the Developer may submit responsive information only.  In either event, the Authority shall only
review and have a right to disapprove the Resubmitted Post-Approval Item Information,
except to the extent that an element of the Master Plan or any Post-Approval
Item that was not previously deficient is materially affected thereby.


 


(iii)                               Following submittal of
the Resubmitted Post-Approval Item Information, the Authority shall either
Approve or disapprove same in accordance with the standards set forth in Section 6.2(g)
hereof.  If the Resubmitted
Post-Approval Item Information is Approved (as evidenced by an Approval
Notice), then the Master Plan shall be deemed to have been Approved by the
Authority in its entirety as of the date of the Approval Notice.  If the Authority disapproves the Resubmitted
Post-Approval Item Information, the Parties shall follow the procedures in this
Section 6.2(f) until such time as the Authority Approves such
Resubmitted Post-Approval Item Information; provided  however, if
the Resubmitted Post-Approval Item Information is not Approved within six (6)
months following the original submittal by the Developer of the Post-Approval
Item or the Developer believes that the Authority’s disapproval prior thereto
is not in accordance with the standards set forth in Section 6.2(g)
hereof, the Developer may dispute the Authority’s disapproval of the
Post-Approval Item in accordance with the provisions of Article 21
hereof.  In either event, the Authority shall
only review and have a right to disapprove the Resubmitted Post-Approval Item
Information, except to the extent that an element of the Master Plan, any
Post-Approval Item or any Resubmitted Post-Approval Item that was not
previously deficient is materially and adversely affected thereby.


 


(iv)                              The Parties shall use
diligent and commercially reasonable efforts and endeavor in good faith to
consult, cooperate and coordinate in an effort to streamline and expedite the
Approval of any Post-Approval Item.


 


(g)                                 Standards
of Review.  (i) Master Plan
Review.  In connection with its
review of the Master Plan or any Resubmitted Master Plan Information, the
Authority may Approve or disapprove such submittal in its discretion, utilizing
the standards of review applied by the New Jersey Superior Court, Appellate
Division, to the review of final agency actions or determinations (i.e.
arbitrary and capricious standard). 
Such standards shall be applied to take into consideration the
consistency of or conformance of the Master Plan or the Resubmitted Master Plan
Information to the Project Components and Component Uses described in this
Agreement and the Conceptual Site Plan.


 


(ii)                                  Post-Approval
Items.  (A) Major Modifications.  In connection with its review of a Post-Approval
Item or a Resubmitted Post-Approval Item that constitutes or relates to (as the
case may be) a Major Modification, the Authority may Approve or disapprove such
submittal utilizing the same standards of review set forth in Section 6.2(g)(i)
above, but applied to determine whether the Post-Approval Item or Resubmitted
Post-Approval Item is consistent with and conforms to the Approved Master Plan.


 


(B)                                Minor Modification.  In connection with its review of a
Post-Approval Item or a Resubmitted Post-Approval Item that constitutes or
relates to (as the case may be) a Minor Modification, the Authority may Approve
or disapprove such submittal, in


 


34

















 


the exercise of its reasonable discretion.  Such standards shall be applied to take into consideration the
consistency of or conformance of the Post-Approval Item or the Resubmitted
Post-Approval Item to the Approved Master Plan.


 


SECTION 6.3.  Effect of Authority Approval.  The review or Approval by the Authority of
any matters submitted for its review or Approval shall not constitute a
representation, warranty or guaranty by the Authority as to the substance or
quality of the documents, work or other matter reviewed, approved or accepted.  At all times, Developer shall use
Developer’s judgment as to the accuracy and quality of all such documents, work
and other matters.  The final written
Approval (including any Board Approval with respect to a Major Modification) by
the Authority of any matter submitted for Authority Approval shall be final,
binding and conclusive upon the Authority, and Developer shall be entitled to
rely upon the Approval.


 


SECTION 6.4.  Developer Due Diligence.  (a) The Authority shall use diligent and
commercially reasonable efforts to provide the Developer with such agreements,
leases, maps, plans, reports, financial documents, financing documents and such
other information and documents as the Developer may reasonably request in
order to perform due diligence activities relating to the physical and
environmental conditions of the Project Site, existing uses of and rights with
respect to the Arena and the Sports Complex, the nature of the tax-exempt
status of the Authority and the transaction contemplated herein, the
Authority’s outstanding debt and other obligations and the existence of
encumbrances on the Project Site (collectively, the “Due Diligence Documents”).  The Due Diligence Documents set forth on Schedule 6.4
hereto shall, to the extent available, be provided or otherwise made available
to the Developer by the Authority at the earliest practicable date but in no
event later than thirty (30) days following the Effective Date.  Any additional Due Diligence Documents shall
be requested by the Developer in writing and shall be provided by the Authority
within five (5) Business Days after its receipt of such request.  Not later than sixty (60) days after the
date on which the Authority provides copies of the Due Diligence Documents,
Developer shall inform the Authority in writing of any reasonable objections
related to the Existing Sports Complex Agreements or the Settlement Agreement
and discussions with the Borough described in Section 5.3 herein
(collectively, such objections are hereinafter referred to as the (“Complex
Agreement Objections”).  The
Authority shall use all its diligent and commercially reasonable efforts, at
the earliest practicable date but in no event later than sixty (60) days after
the delivery of the Developer’s notice of the Complex Agreement Objections, to
resolve any Complex Agreement Objections to the reasonable satisfaction of the
Developer.  Without limitation, the
reasonable efforts of the Authority shall include the commencement and diligent
prosecution of negotiations with third party vendors taking by or through
Existing Sports Complex Agreements to redefine, restrict or eliminate
exclusives granted to such vendors which are inconsistent with the rights
granted to the Developer hereunder including, but not limited to, those
described in Section 20 herein. 
Notwithstanding anything in this Agreement to the contrary, the
Authority shall not be obligated to incur actual out-of-pocket expenses to
“buy-back” rights granted under the Existing Sports Complex Agreements.  If any Complex Agreement Objections are not
resolved to the Developer’s satisfaction within said 60-day period, then in
that event, Developer shall have ten (10) Business Days in which to notify the
Authority that Developer elects to either waive such remaining Complex
Agreement Objections or terminate this Agreement and receive the Refundable
Security Deposit and the amount paid under the Deposit Letter.  In the event that the


 


35

















 


Developer waives such Complex Agreement Objections or is deemed to have
waived by failing to notify the Authority within such ten (10) Business Day
period, the Developer shall be deemed to have taken subject to those uncured
Complex Agreement Objections.  If
Developer terminates, the Refundable Security Deposit and the amount paid under
the Deposit Letter shall be returned to Developer and the parties shall have no
further rights, duties or obligations to each other hereunder (except those
which expressly survive termination).


 


(b)                                 Notwithstanding
anything contained in this Agreement to the contrary, the Authority has
provided and will provide Due Diligence Documents for informational purposes
only and provision of such Due Diligence Documents shall not constitute a
representation, warranty or guaranty as to the substance or quality of the Due
Diligence Documents (other than that such Documents are, to the best of the
Authority’s knowledge, after reasonable inquiry, true, accurate and current
copies of such Due Diligence Documents in possession of the Authority).  The Developer and Project Professionals
shall not rely upon such Due Diligence Documents but rather shall use their own
judgment as to the sufficiency or quality of such Due Diligence Documents.


 


SECTION 6.5.  No Liens.  Except as is contemplated hereunder or in
the Ground Lease (or any Component Lease), the Developer, in the performance of
its obligations under this Agreement shall exercise diligent and commercially
reasonable efforts to not permit any lien to cause a Material Adverse Effect on
the Authority’s interest in the Sports Complex.  In the event that a lien is caused by or arises out of
Developer’s activities at the Project Site, thereby causing a Material Adverse
Effect on the Authority’s interest in the Sports Complex, Developer shall use
all commercially reasonable efforts to discharge, insure over or bond over such
lien as soon as is reasonably and commercially practicable.  Moreover, if, in the Authority’s reasonable
judgment, a lien has (or would have, if not discharged, insured over or bonded
over) a Material Adverse Effect on the Authority if not discharged, insured
over or bonded over, the Authority shall provide written notice to the
Developer of such determination, including the basis or reasons for the
Authority’s determination and Developer shall immediately take all steps
necessary to cause such lien to be removed by the payment of money or bonded by
financial security reasonably acceptable to the Authority.


 


ARTICLE 7


PROJECT APPROVALS


 


SECTION 7.1.  Development Approvals.  (a) Authority Review and Approval.  Developer shall exercise its diligent and
commercially reasonable efforts to obtain Development Approvals for
construction of the Project, in accordance with this Agreement and the Project
Agreements.  Procurement of the
Development Approvals shall be at the Developer’s sole cost and expense, with
the exception of those permits necessary for Remediation related to the
Authority’s Environmental Responsibility. 
Developer shall timely prepare such necessary reports, studies,
schematic documents, design development documents, and construction documents
as provided herein required for the issuance of the Development Approvals (“Development
Approval Documents”).  A copy of the
relevant Development Approval Documents shall be promptly provided to the
Authority.  If such Development Approval



 


36

















 


Document is presented to the Authority for approval or signature,
either because it deviates from the Conceptual Site Plan (or the Approved
Master Plan, if applicable) or the Developer requests that the Authority
execute as co-permittee, then, the Authority shall provide its Approval,
disapproval or signature to the Developer within five (5) Business Days of
receipt of Development Approval Document(s) unless such other time period is
designated under Section 11.6 hereof.  If the Authority disapproves, it shall state its reasons
therefor.  The foregoing shall not limit
or diminish the Authority’s rights of review provided under Section 6.2
hereof with respect to modifications of the Approved Master Plan.  In the event that the Authority fails to
provide its Approval, disapproval or signature within such period, the
Developer may (to the extent that the Authority’s signature is not required as
a condition of such submittal) submit such documentation to the appropriate
regulatory agency without Authority comment or Approval.  In the event that the Authority’s signature
is required as a condition to such submittal, the Authority hereby consents to
the submission of such documentation and shall execute the appropriate
application or submittal documentation, notwithstanding that the Authority has
failed to provide its Approval, disapproval or signature within the applicable
review period (and such consent shall be equally applicable to any
resubmission, as herein contemplated, if the Authority fails to provide its
Approval, disapproval or signature within the applicable review period).  Upon any resubmission of Development
Approval Documents, the Authority shall review only those elements of the
Development Approval Documents that the Authority has not previously reviewed; provided
however, that if the elements of the Development Approval Documents that
are resubmitted are integrally and inseverably related to elements of the Development
Approval Documents previously reviewed by the Authority, the Authority may
include within the scope of its review of any resubmission elements previously
reviewed.  All submissions and responses
hereunder shall be made through the respective Designated Representatives of
the Authority and the Developer.


 


(b)                                 No Warranty.  The review, comment, approval or acceptance
by or on behalf of the Authority of any Development Approval Document or any
other work, plans, budget or schedule shall not constitute a
representation, warranty or guaranty by the Authority as to the substance or
quality of the documents, work or other matter reviewed, approved or
accepted.  At all times, Developer and
the Project Professionals shall use their own judgment as to the accuracy and
quality of all such documents, work and other matters.  The Authority shall use commercially
reasonable efforts to cause its professionals and consultants to add the
Developer as an additional named insured on any errors and omissions and/or
professional liability insurance policies provided to the Authority by such
professionals and/or consultants.


 


(c)                                  Copies of
Submissions.  The Developer and the
Authority shall each exercise diligent and commercially reasonable efforts to
provide to the other Party a complete copy of each and every application for
Development Approvals submitted by Developer or the Authority, as the case may
be, to Governmental Bodies, which copy shall be provided substantially at the
same time as those applications are submitted to those agencies.


 


(d)                                 Cooperation with
Governmental Officials.  In
connection with obtaining the Development Approvals, the Developer shall
cooperate with all federal, State, and local officials, including but not
limited to the NJDEP and the NJMC.


 


37

















 


(e)                                  Authority
Cooperation.  The Authority shall
use diligent and commercially reasonable efforts to cooperate with the
Developer in obtaining the Development Approvals and, to the extent reasonably
determined by the Authority and reasonably agreed to by the Developer, may join
in applications for the Development Approvals; provided  however,
that (i) the Authority shall not be required to incur any out-of-pocket cost or
expense in joining in such applications absent the Developer’s agreement to
reimburse the Authority for such costs or expenses, and (ii) the Authority
shall not be required to take any action that, in the reasonable judgment of
the Authority, constitutes an ultra  vires act or will cause a
breach or default under any Sports Complex Agreement.  Notwithstanding the foregoing, the Development Approvals for
which the Authority shall be a co-applicant or co-permittee are set forth on Schedule 8.2(b)
hereto.


 


(f)                                    Assignment Upon
Termination.  In the event that this
Agreement is terminated by either the Authority or Developer, upon the written
request of the Authority, Developer shall, as soon as reasonably possible,
assign or cause to be assigned to the extent permitted by law any or all of the
Development Approvals obtained by Developer or an assignment of any pending
applications in form sufficient to permit the Authority to continue the
application process for any pending Development Approvals.  Assuming that there has been no Developer
Event of Default and that this Agreement has not been terminated by reason of
such Developer Event of Default, the assignment by Developer hereunder may be
conditioned upon the express written condition that the Authority assumes
financial obligations under the applicable Development Approvals or
applications therefor, including payment or reimbursement of all reasonable
out-of-pocket costs and expenses associated with preparation and processing of
Development Approvals or pending applications. 
Such assignment shall be without recourse, representation or warranty of
any nature, express or implied.


 


(g)                                 Indemnity.  In amplification, and not in limitation, of
the Developer’s indemnification obligations set forth in Section 17.6(a)
hereof, in the event Authority agrees to act as an applicant or co-applicant
for any Development Approval, the Developer shall indemnify, protect, defend
and hold harmless the Authority from and against any Developer Indemnified
Claim; provided  however, that the provisions of Section 17.6(a)
hereof shall not be applicable to any claim of an Authority Indemnified Party
if such claim arises out of or relates to (i) Remediation relating to the
Authority’s Environmental Responsibility, or (ii) any violation of a
Development Approval, to the extent that such violation was caused by the
action(s) or inaction(s) of the Authority or any Authority Indemnified Party.


 


SECTION 7.2.  NJDEP/NJMC Consultation.  Developer acknowledges that pursuant to the
Enabling Legislation, the NJDEP and NJMC have certain review rights as to the
Project that require one or more public hearings before the NJDEP and
NJMC.  Concurrently with preparation of
applications for Development Approvals as provided in Section 7.1
hereof, the Parties shall present the Project to the NJDEP and NJMC in a timely
fashion for review in accordance with the Enabling Legislation.


 


38

















 


ARTICLE 8


GROUND LEASE CLOSING; MATERIAL CONDITIONS


 


SECTION 8.1.  Development Covenant.  In consideration for the Authority’s grant
of exclusive development rights hereunder and conveyance of, among other
things, the leasehold estate in the Project Site and the full and prompt
performance of its obligations under this Agreement and the Project Agreements,
subject to the provisions of this Agreement, the Developer shall (a) diligently
pursue the design, permitting and construction of Phase I and Phase II, as
provided under the terms of this Agreement, (b) until and if released, perform
and observe the terms and conditions of this Agreement, as herein provided, and
(c) make payment of the Development Rights Fee and the applicable Ground Rent,
as provided in this Agreement and the Ground Lease; provided  however,
the failure to construct the Hotel Component and/or the Office Component (or
any Phase incorporating such Components) shall not invalidate or otherwise
affect the obligations of the Parties hereunder and/or the sufficiency of
consideration for this Agreement and shall not constitute a Developer Event of
Default hereunder or under the Ground Lease.


 


SECTION 8.2.  Satisfaction of Material Conditions;
Termination.  (a) If,
after the exercise of all good faith, diligent and commercially reasonable
efforts by each Party, any of the following conditions (the “Material
Conditions”) are not satisfied on or prior to March 31, 2005 
(the “Material Conditions Termination Date”), subject to
application of the provisions of Sections 8.3 and 8.4 hereof, either of
the Parties may elect no later than the Material Conditions Termination Date to
terminate this Agreement by written notice to the other, in which event, this
Agreement shall be terminated as of the date of such notice and all obligations
of the Parties hereunder shall cease and all claims that the Parties may have
shall be deemed to have been forever waived (except such obligations as are
specifically stated in this Agreement or which by their nature are intended to
survive termination and any claims arising in connection with such
obligations).  Upon termination of the
Agreement for failure to satisfy the Material Conditions, the Refundable
Security Deposit and the amount paid to the Authority under the Deposit Letter
shall be promptly returned to the Developer.


 


(b)                                 The following shall
constitute the Material Conditions:


 


(i)                                     All Development
Approvals required for the Project, as set forth on Schedule 8.2(b)
hereof and such other permits, licenses or approvals that are determined to be
required following the Effective Date, shall have been obtained, shall be in
form and content reasonably acceptable to the Developer, shall be in full force
and effect and all applicable appeal periods shall have expired without an
appeal being filed, or, if an appeal has been filed, that such appeal has been
decided by issuance of a final non-appealable order or decision by a court of
competent jurisdiction upholding and affirming the validity of the Development
Approval(s) that is the subject of such appeal and/or if any such appeal period
has not expired, such pending appeal cannot, in the reasonable judgment of the
Parties, be resolved in a manner preventing construction and operation of the
Project substantially in the manner contemplated by the Development Approvals,
this Agreement or the Master Plan.


 


(ii)                                  An agreement
effectuating the provisions of Section 5.3(b) hereof shall have
been reached with the Borough of East Rutherford or the Authority (in the
exercise of its sole discretion) shall have executed an agreement with the
Developer in form and substance acceptable to Developer in its sole discretion
that holds the Developer harmless with respect to


 


39

















 


any future challenge by constituent municipalities and/or counties for
payments to and/or the imposition of real property taxes or assessments in
excess of the Developer PILOT Payments by the State of New Jersey, the
Authority or any municipality in which the Meadowlands Complex is located based
upon use of the Project Site by the Developer substantially in the manner
contemplated in this Agreement and the Master Plan.


 


(iii)                               All administrative
proceedings which are required in order to carry out the Project, as
contemplated by this Agreement and the Master Plan, shall have been completed,
and all other actions, hearings, proceedings or determinations required to be
taken, held and/or rendered, as the case may be, by the Authority, the NJDEP,
the NJMC and/or any other agency or authority in order for the Project to be
constructed and operated in the manner contemplated by the Master Plan shall have
been undertaken and completed and a favorable determination rendered so as to
permit construction and operation of the Project, as reflected in the Master
Plan.  An order(s) or finding(s), as
applicable, shall have been issued, such order or finding determining that the
Project to be constructed on the Project Site, as described in the Master Plan
and this Agreement, is approved and that the Project proposed to be constructed
complies with or is consistent with all planning, land use and/or environmental
requirements applicable to the Meadowlands Complex and/or the Project
Site.  Such order, finding and/or
resolution evidencing such Approval shall be in full force and effect and all
applicable appeal periods shall have expired without an appeal being filed, or,
if an appeal has been filed, that such appeal has been decided by issuance of a
non-appealable order or decision of a court of competent jurisdiction upholding
and affirming the validity of the order(s) or finding(s) or resolution(s) that
is the subject of such appeal or if any such appeal has not been decided, such
pending appeal cannot, in the reasonable judgment of the Parties, be resolved
in a manner preventing or materially affecting construction and operation of
the Project substantially in the manner contemplated by the Development
Approvals, this Agreement or the Master Plan.


 


(iv)                              The Master Plan shall
have been Approved by the Authority and such order, finding and/or resolution
evidencing such Approval shall be in full force and effect and all applicable
appeal periods shall have expired without an appeal being filed, or, if an
appeal has been filed, that such appeal has been decided by issuance of a
non-appealable order or decision of a court of competent jurisdiction upholding
and affirming the validity of the order(s) or findings(s) that is the subject
of such appeal or if such appeal has not been decided, such pending appeal
cannot, in the reasonable judgment of the Parties, be resolved in a manner
preventing or materially affecting construction or operation of the Project
substantially in the manner contemplated by the Development Approvals, this
Agreement or the Master Plan.


 


(v)                                 The Developer shall
have received all easements, rights of access, licenses and other rights and/or
the termination or modification of existing easements, rights of access,
licenses and other rights reasonably required in order to permit use and
operation of the Project Site in the manner contemplated by this Agreement, the
Ground Lease, the Master Plan, the Development Approvals and the Project
Agreements (subject only to the Permitted Exception(s)) and such easements,
rights of access, licenses and other rights and/or modifications or
terminations shall be in form and content reasonably acceptable to the Developer
and its Project Lenders, and shall be in full force and effect.


 


40

















 


(vi)                              All (A) WMB Approvals
shall have been obtained and shall be in full force and effect and all
applicable appeal periods shall have expired without an appeal being filed, or,
if an appeal has been filed, such appeal has been decided by issuance of a
non-appealable order or decision of a court of competent jurisdiction upholding
and affirming the validity of the order(s) or finding(s) that is the subject of
such appeal and/or if any such appeal period has not expired, such pending
appeal cannot, in the reasonable judgment of the Parties, be resolved in a
manner preventing effectuation of the Wetlands Mitigation Bank and the license
to operate same by the Developer, and (B) actions required to be taken in order
to permit the Developer to effectuate the Wetlands Mitigation Bank (in the
manner contemplated by Section 3.5 hereof) and the WMB Approvals,
including execution of any applicable agreements related thereto (as provided
in Section 3.5(b) hereof), including the MIMAC Agreement, shall
have been completed.  The form and
content of such WMB Approvals shall be acceptable to the Developer (in the
exercise of its sole discretion).


 


(vii)                           No litigation shall be
outstanding (including without limitation, the potential for appeals from
previously issued decisions or orders for which the appeal period shall not
have expired) against or affecting the Authority (A) challenging the validity
of this Agreement, the Ground Lease, the Project Agreements and/or the
Authority’s legal right and power to enter into same or to carry out the
transactions contemplated herein, or (B) which precludes, hinders, inhibits or
limits (or could in the reasonable judgment of the Developer and/or the
Authority preclude or limit) the ability of the Authority and/or the Developer
to satisfy the Material Conditions and/or carry out the transactions
contemplated by this Agreement, the Ground Lease, the Project Agreements, the
Master Plan, the Wetlands Mitigation Bank (as provided in Section 3.5
hereof) and/or the Development Approvals.


 


(viii)                        All Title Objections which are
not Permitted Exception(s) pursuant to the provisions of Section 4.2
hereof shall have been discharged or otherwise satisfied or arrangements
mutually satisfactory to the Parties for discharge at the Ground Lease Closing
shall have been made to the satisfaction of the Developer and the Project
Lenders.


 


(ix)                                Mutually satisfactory
forms of Ground Lease, Project Operating Agreement, the Construction Management
Agreement and the Declaration shall have been agreed upon by the Parties.


 


(x)                                   A Project Labor
Agreement (in form and content satisfactory to the Developer in the exercise of
its sole discretion) shall have been executed with the Bergen County Building
and Construction Trades Council covering, among other things, the terms and
conditions under which construction of the Project will be carried out through
the use of persons or firms that recognize established Bergen County collective
bargaining units.


 


(xi)                                A.  The Parties shall have reached agreement as
to (i) the Traffic and Infrastructure Improvements and the reasonably estimated
costs thereof to be credited against the Traffic and Infrastructure Cap Amount,
and (ii) the amount, if any, of the projected Unspent Traffic and
Infrastructure Amount.  In the event
that such estimated costs of the Traffic and Infrastructure Improvements are
projected to exceed Sixty Eight Million Two Hundred Fifty Thousand Dollars
($68,250,000), the Parties shall work cooperatively (and in conformance with


 


41

















 


Section 3.3(e)(i)
hereof) to reduce the scope of the Traffic and Infrastructure Improvements so
that the projected costs of such Improvements do not exceed the Traffic and
Infrastructure Improvement Cap Amount, as long as such change in scope (A) will
not adversely impact any Development Approval, (B) will not cause any reduction
in the size of the Project (or any Component) or change the Component Uses, or
(C) will not materially and adversely reduce the level of road service
currently provided at the Sports Complex or that is anticipated to be required
to serve the Completed Project and Sports Complex.  Any dispute with respect to the applicability of such criteria
shall be resolved in accordance with the provisions of Article 21
hereof.  If the amount by which the
estimated costs of the Traffic and Infrastructure Improvements exceeds the
Traffic and Infrastructure Improvement Cap Amount is less than or equal to
Three Million Two Hundred Fifty Thousand Dollars ($3,250,000), the Authority
shall be obligated to pay for such excess costs (the “Authority Traffic and
Infrastructure Payment Amount”).  In
such event, this Material Condition shall be deemed to have been satisfied.


 


B. 
Notwithstanding anything contained herein to the contrary, if the
estimated costs of the Traffic and Infrastructure Improvements exceeds Sixty
Eight Million Two Hundred Fifty Thousand Dollars ($68,250,000), and the
Authority has not paid (or has determined that it will not pay towards such
costs, having no obligation to do so) amounts in excess of Three Million Two
Hundred Fifty Thousand Dollars ($3,250,000), the Authority may terminate this
Agreement and, in such event, shall not be required to pay the Authority
Traffic and Infrastructure Payment Amount or any amount in excess thereof; provided
however, that, Developer may proceed in accordance with Section 8.4(c)
hereof and in such event, the Authority shall be obligated to pay the Three
Million Two Hundred Fifty Thousand Dollars ($3,250,000) as provided in Section 3.3(d)(i)
for payment of the Authority Traffic and Infrastructure Payment Amount to the
Developer and this Material Condition shall be deemed to have been satisfied.


 


SECTION 8.3.  Limited Extension of Material Conditions
Termination Date.  (a)
The Material Conditions Termination Date may be extended by one day for each
day after March 31, 2005 that
any litigation instituted and continued by a third party challenging this
Agreement, the Ground Lease, the ability or power of the Authority to undertake
and carry out the transactions contemplated by this Agreement, the Ground Lease
or the Project Agreements, or implementation of the Wetlands Mitigation Bank
(as provided in Section 3.5(b) hereof), or challenging any
Development Approval or other approval or action issued, adopted or taken by
the Authority, the NJDEP, the NJMC or any other regulatory agency having
jurisdiction over the Project or the Project Site, or any portion thereof, or
implementation of the Wetlands Mitigation Bank, which litigation could
reasonably be anticipated to have a Material Adverse Effect, has not been
conclusively adjudicated.


 


(b)                                 In the event that the
Material Conditions Termination Date shall be extended by reason of the
application of this Section 8.3 until March 31, 2008 (the “Outside
Material Conditions Termination Date”), then either Party shall have the
right at any time after the Outside Material Conditions Termination Date (but
prior to the conclusive adjudication of those actions described in the first
sentence of this Section 8.3) to terminate this Agreement by
written notice, and upon any such termination the Refundable Security Deposit
and the amount provided under the Deposit Letter shall be returned to
Developer, and each Party shall be


 


42

















 


released  from any further
obligations hereunder, except as expressly provided herein to the contrary.


 


SECTION 8.4.  Limited Waiver of Material Conditions.  (a) In the event that the Authority has
exercised its rights to terminate this Agreement for the failure to satisfy the
Material Conditions, the Developer shall have the right to waive any Material
Conditions remaining to be satisfied and such waiver shall be deemed to
constitute a rescission of the Authority’s termination notice; provided  however,
the Developer shall not be permitted to waive the Material Conditions described
in Section 8.2(ii), (ix) and, to the extent provided therein, (xi).  The Developer’s determination to waive any
Material Conditions shall be set forth in writing and provided to the Authority
on or prior to the date that is ten (10) days after the Authority’s delivery of
notice of termination to the Developer. 
In such event, the Material Conditions shall be deemed to have been
satisfied as of the date of the Developer’s waiver of such remaining Material
Conditions and the Ground Lease Closing Date shall be established in accordance
with the provisions of Section 9.1 hereof.


 


(b)                                 Notwithstanding the
foregoing, if the Material Condition described in Section 8.2(b)(iv)
has not been satisfied on or prior to the Material Conditions Termination Date,
the Developer may waive the satisfaction of such Material Condition.  However, in such event the Authority’s
review and Approval of the Master Plan shall be governed by the provisions of subparagraphs
(a), (b), (c), (d), (e) and (g) but not (f) of Section 6.2
hereof.


 


(c)                                  In the event that the
Authority has exercised its rights to terminate this Agreement as a result of
the failure to satisfy the Material Condition described in Section 8.2(b)(xi)
of Section 8.2, the Developer may override such determination by
providing written notice to the Authority (not later than ten (10) days after
receipt of Authority’s termination notice, of its decision to relieve the
Authority from any obligation with respect to payment of any amount in excess
of the Authority Traffic and Infrastructure Payment Amount.  In such event, said Material Condition shall
be deemed to have been satisfied on or prior to the Material Conditions
Termination Date.


 


SECTION 8.5.  Access to the Project Site.  The terms and conditions of access to the
Sports Complex (including the Project Site) by the Developer prior to the
Ground Lease Closing Date shall be governed in all respects by the Access and
Indemnity Agreements.


 


ARTICLE 9


GROUND LEASE; COMPONENT LEASES


 


SECTION 9.1.  Execution of Ground Lease.  (a) (i) On or prior to the one hundred
fiftieth (150th) day following satisfaction or waiver (to the extent
waivable hereunder) by the Developer of the Material Conditions set forth in Section 8.2
hereof (or such earlier date as 
provided below), the Authority and the Developer will enter into the
Ground Lease and record a memorandum or short form of the Ground Lease.


 


(ii)                                  The form of Ground
Lease is currently under negotiation by the Authority and the Developer.  The Parties shall endeavor in good faith to
negotiate a final form


 


43

















 


of the Ground Lease in accordance with the term sheet attached hereto
as Exhibit “B” (the “Ground Lease Term Sheet”) within ninety (90)
days following the Effective Date. 
Unless otherwise agreed to by the Parties, the final form of Ground
Lease shall not materially deviate from the substantive financial terms
reflected in the Ground Lease Term Sheet and shall not materially increase any
obligation to be performed by the Parties or materially limit or diminish any
rights held by the Parties, in each case, as compared to the obligations and/or
rights reflected in the Ground Lease Term Sheet.  As soon as the form of Ground Lease has been mutually agreed to,
the Parties shall initial the form and attach same hereto as Exhibit “B-1”
at which time Exhibit “B” will be incorporated therein and superceded by
Exhibit “B-1”.  From and after
such date, the Ground Lease Term Sheet shall be of no force or effect.  In addition, the Parties acknowledge that
the form of Ground Lease shall be subject to review and may be subject to
comment and modification at the request of Project Lenders.  The Authority shall cooperate with the
Developer in addressing the requests of the Project Lenders, subject to the provisions
of this Section 9.1(a)(ii).


 


(b)                                 Notwithstanding
anything contained herein to the contrary, at any time after satisfaction or
waiver of the Material Conditions (other than the Material Conditions set forth
in subparagraphs (ii), (ix) and, to the extent provided therein, (xi) of
Section 8.2(b) hereof, each of which may not be waived by the
Developer without the prior written consent of the Authority which may be
provided or withheld in its sole discretion), the Parties may determine that
the Ground Lease Closing Date shall occur prior to expiration of the one
hundred fifty (150) day period provided in Section 9.1(a)(i) above
and, in such event, the Ground Lease Closing Date shall be the date determined
by the Developer and the Authority.


 


SECTION 9.2.  Conditions Precedent to Ground Lease Closing.  Prior to entering into the Ground Lease and
commencement of construction of the Project, each of the following conditions
precedent shall have been satisfied by the Developer or the Authority, as the
case may be.


 


(a)                                  No Event of
Default.  No Developer Event of
Default or Authority Event of Default hereunder or under any of the Project
Agreements (i.e. event of default under any Access and Indemnity Agreement) nor
any event that with the passage of time or delivery of notice or both, could
constitute a Developer Event of Default or Authority Event of Default, as the
case may be, hereunder or under any of the Project Agreements shall have
occurred and be continuing (subject to a Party’s cure rights, as provided
herein), and an Authorized Representative of the Developer shall have delivered
to the Authority a written certificate to such effect and an Authorized
Representative of the Authority shall have delivered a written certificate to
the Developer to such effect.


 


(b)                                 No Proceedings.  No action, suit, proceeding or investigation
of any kind shall have been instituted or, to the Developer’s or Authority’s
knowledge, pending or threatened by any third party, including actions or
proceedings of or before any Governmental Body to which the Authority, the
Developer or the Project (or any Component thereof) is a party or is subject or
by which any of them or the Project are bound or can reasonably be expected to
have a Material Adverse Effect, no injunction or other restraining order shall
have been issued and no hearing to cause an injunction or any restraining order
to be issued shall be pending or noticed


 


44

















 


with respect to any action, suit or proceeding if the same reasonably
could be expected to have a Material Adverse Effect.


 


(c)                                  Financial
Condition.  Since the Effective
Date, there shall not have occurred any change in the financial condition,
business or property of the Developer, Mills or Mack-Cali that could reasonably
be expected to have a Material Adverse Effect, and an Authorized Representative
of the Developer shall have delivered a written certificate to the Authority to
such effect.


 


(d)                                 Insurance.  The Developer and the Authority shall each
have delivered evidence that insurance coverage complying with the terms of the
Project Agreements shall be in place and in full force and effect.


 


(e)                                  Representations
and Warranties.  Each representation
and warranty of the Developer and the Authority provided herein or in any other
Project Document shall be true and correct in all material respects as if made
on such date (except that any representation and warranty that relates
expressly to an earlier date shall be deemed made only as of such earlier date)
and to the Developer’s and/or the Authority’s knowledge, as the case may be,
unless failure of any such representation or warranty to be true and correct
could not reasonably be expected to have a Material Adverse Effect, in each
case, as certified by an Authorized Representative of the Developer in a written
certification to the Authority (as to representations and warranties of the
Developer) and as certified by an Authorized Representative of the Authority in
a written certification to the Developer (as to representations and warranties
of the Authority).


 


(f)                                    Further
Assurances.  The Parties shall have
delivered such other documents, certificates, agreements or other materials as
the Parties may reasonably request.


 


SECTION 9.3.  Ground Lease Closing.  (a) Developer Deliveries. At the
Ground Lease Closing, the Developer shall deliver the following items, validly
executed and attested, acknowledged and/or notarized as appropriate: (i) the
Ground Lease, subject only to the Permitted Exception(s) in accordance with Section 4.2
hereof and, including without limitation, the Declaration, (ii) a certificate
stating and reaffirming in all material respects the representations and
warranties of the Developer set forth in this Agreement (including without
limitation, Section 16.1 hereof), effective as of the Ground Lease
Closing Date, (iii) such evidence of the legal right and power of the Developer
to enter into and effectuate the transactions contemplated in this Agreement,
the other Project Agreements and the Ground Lease and of the due authorization
of the persons acting on behalf of the Developer with respect hereto as the
Authority or the Title Insurer may reasonably request, (iv) subject to such
exclusions as are reasonably warranted by the Project Litigation and other
customary exclusions, an opinion of legal counsel in form and substance and
rendered by counsel to the Developer reasonably acceptable to the Authority (A)
as to the matters referred to in clause (iii) above, and (B) that all
instruments, documents or other writings executed by the Developer in
connection with the Ground Lease Closing (including specifically, and without
limitation, the Ground Lease) are valid, effective and enforceable in
accordance with their respective terms, (v) evidence in form and substance
satisfactory to the Authority that all insurance required to be provided by the
Developer pursuant to the Project Agreements has been provided and remains in


 


45

















 


full force and effect, (vi) such other documents and instruments that
are reasonably requested to consummate the conveyance of the leasehold estate
in the Project Site from the Authority to the Developer, provided that such
documents and instruments are consistent with the Parties’ intent as expressed
in this Agreement, do not have a Material Adverse Effect and are within the
powers of the Authority under applicable law, and (vii) payment of the
Development Rights Fee less any adjustments, offsets or credits expressly
provided hereunder.


 


(b)                                 Authority
Deliveries. At the Ground Lease Closing, the Authority shall deliver the
following items, validly executed and attested, acknowledged and/or notarized
as appropriate: (i) the Ground Lease, subject only to the Permitted
Exception(s) in accordance with Section 4.2 hereof and the Declaration,
(ii) such affidavits as may be reasonably requested by the Title Insurer,
including but not limited to mechanics’ liens and parties in possession
(provided that, without limitation, the Authority may exclude from its
affidavit any claim arising from the actions of the Developer or any person
claiming through or under the Developer, or acting on the Developer’s behalf),
(iii) a certificate stating and reaffirming in all material respects the
representations and warranties of the Authority set forth in this Agreement
(including specifically, and without limitation, Section 16.2
hereof), effective as of the Ground Lease Closing Date, (iv) such evidence of
the legal right and power of the Authority to enter into and effectuate the
transactions contemplated in this Agreement and of the due authorization of the
persons acting on behalf of the Authority with respect hereto as the Developer
or the Title Insurer may reasonably request, (v) subject to such exclusions as
are reasonably warranted by the Project Litigation and other customary
exclusions, an opinion of legal counsel in form and substance and rendered by
counsel to the Authority reasonably acceptable to the Developer (A) as to the
matters referred to in clause (iv) above, and (B) that all instruments, documents
or other writings executed by the Authority in connection with the Ground Lease
Closing (including specifically and without limitation, the Ground Lease) are
valid, effective and enforceable in accordance with its terms, and (vi)
evidence in form and substance satisfactory to the Developer that all insurance
required to be provided by the Authority pursuant to the Project Agreements has
been provided and remains in full force and effect and (vii) such other
documents and instruments that are reasonably requested to consummate the
conveyance of the leasehold estate in the Project Site from the Authority to
the Developer, provided that such documents and instruments are consistent with
the Parties’ intent as expressed in this Agreement, do not have a Material
Adverse Effect and are within the powers of the Authority under applicable law.


 


SECTION 9.4.  Component Parts; Component Entities;
Component Leases; Component Agreements.  (a) The Parties acknowledge and agree that
following the execution of the Ground Lease (or simultaneously therewith) the
Developer shall segregate the Project Site into multiple components comprising
each of the Office Component, Parking Component, Hotel Component and
Entertainment/Retail Component to be Controlled by Developer or Permitted
Transferees.  In furtherance of the
foregoing, Project Components and Project Site Components (and the related
rights appurtenant thereto) may, upon written notice to the Authority, but at
the sole discretion of the Developer in the exercise of its reasonable business
judgment, be divided into further component parts in accordance with the terms
of this Agreement (each, a “Component Part”  and collectively, the “Component Parts”) (which Component
Parts may be smaller than a Project Component or Project Site Component but a
single Component Part shall not include portions of more than one Project
Component or Project Site Component). 
The 


 


46

















 


segregation of the Project Site into Component Parts shall be set forth
in an updated Project Sequencing Plan furnished to the Authority in accordance
with Section 3.2(b) hereof.


 


(b)                                 Component Interests.  Subsequent to execution of the Ground Lease
(or simultaneously therewith) and subject to Article 14, Developer
(or a Transferee) may convey its interest in the development rights granted
hereunder relating to the development of a Project Component and/or Project
Site Component and/or Component Part (each, a “Component Interest”) to a
Component Entity, and a Component Entity may convey such Component Interest (or
portion thereof constituting a Component Part) to another Component
Entity.  Simultaneously with such
conveyance and as a condition thereto, the Authority and the Component Entity
shall enter into a Component Agreement and Component Lease in form and
substance reasonably satisfactory to the Component Entity and to the Authority
and Developer as set forth in Section 9.4(e)(i) below.  The rights and obligations of a Component
Entity with respect to a Component Interest shall be as set forth in the
applicable Component Agreement and Component Lease and there shall be no
provision for cross-defaults or cross-collateralization among Component
Agreements, Component Leases, the Ground Lease or this Agreement (i.e. a
default by a Component Entity under a Component Agreement or Component Lease
shall have no effect on the rights or obligations of any other Component Entity
under any other Component Agreement or Component Lease or on the rights and
obligations of the Developer under this Agreement, Ground Lease and Project
Agreements and vice-versa); provided  however, that the Component
Agreement and Component Lease for each separate Project Component or Component
Part shall provide that, an event of default under that Component Lease shall
constitute an event of default under the corresponding Component Agreement and
vice-versa.


 


(c)                                  Component Entities.  The organization, form and ownership
structure of a Component Entity (i.e. partnership, limited partnership, limited
liability company, condominium association, etc.) shall be determined by the
Developer in its sole discretion in the exercise of its reasonable business
judgment so as to effectuate the ownership, financing, construction, operation,
use and occupancy of an applicable Component Interest.  The Developer shall be permitted to apply
multiple forms of ownership, means of control and/or management structures to
effectuate the Project in the most efficient and cost-effective manner possible
that Developer deems appropriate.  The
Developer shall provide the Authority with a written summary of the
organizational/corporate management and ownership structure of each Component
Entity.  Notwithstanding anything herein
to the contrary, following execution and delivery of Component Agreements and
Component Leases by the Component Entity(ies) responsible for performance of
the obligations relating to the Office Component and/or the Hotel Component or
phases thereof and the Authority, this Agreement and the Ground Lease shall
thereafter be applicable solely to the balance of the Project.


 


(d)                                 Limited Release.  Notwithstanding any provision of this
Agreement to the contrary, from and after the date that a Component Agreement,
Component Lease and the Transfer Documents or other documents and instruments
required to be provided under Article 14 hereof are executed and
delivered by a Component Entity and the Authority, the Developer’s obligations
under this Agreement with respect to the applicable Component Interest, to the
extent that such obligations accrue from and after such execution, delivery and
approval, shall terminate.  Developer’s
obligations accruing prior to such execution, delivery and approval shall


 


47

















 


survive.  None of the assets or
interests of Developer or any Component Entity shall be pledged as security for
any of the obligations of any other Component Entity.  From and after such date, the rights and obligations of the
Authority with respect to such Component Interest shall be governed solely by
the Component Agreement and the Component Lease, as the case may be, and the
Authority shall look solely to the applicable Component Entity (and shall have
no recourse to or against the Developer).


 


(e)                                  Component Agreements.  (i) Except as otherwise reasonably required
to effectuate the financing of the Project and the rights of the Project
Lenders related thereto, any Component Lease or Component Agreement shall (A)
contain substantially the same terms and conditions as the Ground Lease and
this Agreement, respectively, (B) shall not materially modify the rights or
obligations of the Parties under the terms of the Ground Lease and this
Agreement, respectively, with respect to any obligations that are not covered
by the Component Lease and Component Agreement and from which the Parties have
not otherwise been released, and (C) shall not release or discharge a Party
from its performance under the Ground Lease and this Agreement, respectively,
with respect to any obligations which are not covered by the Component Lease
and Component Agreement and from which such Party has not otherwise been
released.


 


(ii) 
At least fifteen (15) days prior to the date on which Developer desires
Authority to execute any Component Lease and Component Agreement, the Developer
shall provide a copy of same to the Authority. 
The Authority’s review shall be limited to the provisions of (A), (B)
and (C) in Section 9.4(e)(i) above.  If the Authority disputes any matter contained within (A), (B) or
(C) and such dispute cannot be resolved within thirty (30) days, the provisions
of Article 21 hereof shall apply. 
If the Authority fails to approve or properly dispute such Component
Lease and Component Agreement within said fifteen (15) day period, the Component
Lease and Component Agreement shall be deemed approved and the Authority shall
be obligated to execute such Component Lease and Component Agreement.


 


(f)                                    Application to
Component Entities and Component Leases. 
The provisions of Section 9.2 and Section 9.3
hereof shall be applicable to each Component Entity as to each Component Lease
and Component Agreement executed and delivered from and after the Ground Lease
Closing Date and the conditions precedent to the execution and delivery thereof
shall be satisfied as of each date of execution of a Component Lease and
Component Agreement.


 


(g)                                 Direct Leases.  Subject to Article 14, Developer
shall also have the right to enter directly into a Component Lease with a
Permitted Transferee or a Transferee. 
In such event, execution of a Component Agreement shall not be required;
however, the execution of a Component Lease in such circumstance shall not
release Developer from any of its obligations under this Agreement or the
Ground Lease.


 


SECTION 9.5.  Certificate of Completion.  (a) Certificate of Completion of
Construction.  Anytime after the
occurrence of (i) completion of the “core and shell” construction of a Project
Component or Component Part, (ii) issuance of a Project Certificate of
Occupancy for such Component or Component Part by an appropriate Governmental
Body (or such similar or equivalent written determination issued by DCA), (iii)
the Component or


 


48

















 


Component Part is open for use by the general public, and (iv) a
certification by the Developer stating that the applicable Project Component
has been substantially completed in accordance with the Plans and
Specifications and the Development Approvals relating to such Component,
Developer shall provide written notice thereof to the Authority.  Following receipt of such notice from the
Developer, the Authority shall (following inspection by the Authority, to the
extent necessary, as determined by the Authority, in its reasonable discretion)
issue to the Developer a certificate in recordable form certifying that the
Developer has fulfilled its obligation to complete such Component in accordance
with the terms of this Agreement (the “Certificate of Completion”).  The Authority shall respond to the Developer’s
written request for a Certificate of Completion within thirty (30) days by
issuing either a Certificate of Completion or a written statement detailing the
manner in which the Project Component or Component Part does not conform to
this Agreement or has not been satisfactorily completed, and the measures which
must be taken by the Developer in order to obtain the Certificate of
Completion.  The Developer may resubmit
a written request for a Certificate of Completion upon completion of such
measures.  The Authority shall not be
obligated to undertake the inspection required under this Section 9.5,
or  provide such Certificate of Completion if it has a reasonable basis
to believe that Completion has not occurred. 
In such case, the Authority shall provide the Developer with written
notice thereof setting forth, at a minimum, the basis for such
determination.  A Certificate of
Completion may be issued for each Project Component or any Component Part of a
Project Component consisting of a separate economic unit and shall be addressed
to Developer, any Component Entity and any Project Lender.  Any dispute under this Section 9.5
shall be subject to resolution in accordance with Article 21
hereof.


 


(b)                                 Effect of Issuance
of Certificate; Continuing Obligations. 
A Certificate of Completion issued pursuant to Section 9.5(a)
hereof shall constitute the agreement and estoppel of the Authority (or anyone
claiming through the Authority) that the terms of this Agreement specifically
related to the Developer’s obligation to complete construction of the Project
Component, or applicable Component Part, and all other obligations under this
Agreement with respect to such Project Component, or applicable Component Part,
have been satisfied; however, such Certificate of Completion shall not
constitute a representation or warranty of the Authority for any purpose.  After such issuance, however, except as
otherwise provided in the Certificate of Completion, all executory terms and
conditions of this Agreement and all representations, agreements and covenants
contained herein which expressly survive the issuance of a Certificate of
Completion will continue to remain in full force and effect, and the issuance
of the Certificate of Completion shall not be construed as a waiver by the Authority
of any of its rights and remedies pursuant to such executory terms; provided
that failure to perform or comply with such representations, agreements and
covenants shall not affect the validity of any Certificate of Completion issued
for a Project Component, or applicable Component Part, or constitute a default
under this Agreement with respect to any Project Component, or applicable
Component Part, for which a Certificate of Completion has been issued.


 


(c)                                  Covenants Running
with the Land.  Any Certificates of
Completion issued by the Authority are intended as covenants that run with the
land and shall inure to the benefit of and be binding upon any and all
transferees of the Project Component, including any Project Lender(s) who may
acquire title to the Project Component by foreclosure or similar realization or
enforcement proceeding or deed in lieu of foreclosure, and any/or Successor or
transferee from


 


49

















 


or at the direction of such Project Lender(s).  Any Certificate of Completion shall be
recorded by Developer against title to a Project Component with respect to
which, or to a Component Part of which, the Certificate of Completion has been
issued.


 


ARTICLE 10


CONTINENTAL AIRLINES ARENA; MEADOWLANDS RACETRACK


 


SECTION 10.1.  Use of Arena; Use of Meadowlands
Racetrack.  (a) The
Parties acknowledge and agree that the Project Site excludes the Arena, the
Arena Site and the Development Rights Fee and the Ground Rent payable by the
Developer with respect to the Project Site is not allocable to the Arena Site.


 


(b)                                 The Authority shall
continue to use, occupy and operate the Arena pursuant to applicable Existing
Sports Complex Agreements for future uses, subject to the terms of this
Agreement and the Project Agreements, the Developer’s Right of First Refusal,
and consistent with the Enabling Legislation and that doing so shall not
constitute an Authority Interference. 
Subject to the Master Plan, the Construction Management Agreement, the
Project Operating Agreement, the Declaration and the terms hereof, the
Developer shall accommodate such continuing use of the Arena by the
Authority.  In furtherance of the
foregoing, so long as the Developer has not acquired the rights to the Arena,
as provided herein, as a result of the exercise of its Right of First Refusal
(as hereinafter defined), the Developer shall provide access to the Arena and
Arena Site on, over and through such easements as to which the Parties shall
mutually agree to enable the Authority or any party succeeding to the rights of
the Authority in and to the Arena to enable the Authority or any such successor
to exercise its ownership rights with respect to the Arena.  The Parties shall negotiate in good faith the
terms of the Construction Management Agreement, the Project Operating Agreement
and the Declaration providing for the Authority’s use of the Arena and the
Arena Site and the Developer’s (or Component Entity’s, as the case may be) use
of the Project Site (or applicable Project Component Site, as the case may
be).  In furtherance of the Developer’s
covenant to maintain access to the Arena, Authority and Developer (or Component
Entity, as applicable) shall enter into reciprocal access easements providing
for access to, and operation, future renovation and/or demolition of the Arena
and/or future construction at the Arena Site (consistent with the terms
hereof), the Arena Site, the Project and the Project Site, which shall be set
forth in the Ground Lease (or the applicable Component Leases, as the case may
be) and/or the Declaration.


 


(c)                                  Developer
acknowledges that following the Effective Date, the Authority shall continue to
use, occupy and operate the Meadowlands Racetrack for the future uses, subject
to the terms of this Agreement and the Project Agreements, the Developer’s
Right of First Refusal and consistent with the Enabling Legislation and that
doing so shall not constitute an Authority Interference.


 


(d)                                 The rights,
obligations and liabilities of the Parties under this Section 10.1
shall be subject to the mutual indemnification provisions of Section 17.6
and Section 17.7 hereof.


 


50

















 


SECTION 10.2.  Right of First Refusal.  (a) Grant of Right of First Refusal.  (i) The Authority hereby grants to the
Developer a right of first refusal, which shall be in recordable form, as
described below (“Right of First Refusal”) that shall be exercisable in
the event that (A) the Arena shall no longer be used, operated, managed or
controlled by the Authority for the purposes in effect as of the Effective
Date, and/or (B) the Authority shall have received and determined to accept a
bona fide written offer for the ownership, long-term lease, exclusive use
(whether by lease, operating or management contract or otherwise) and/or
redevelopment of the Arena from a third party. 
For purposes of avoiding disputes between the Parties, neither a lease
(or the amendment or modification of a lease) to a present or future Sports
Complex Tenant (or an Affiliate thereof) or the conduct of a particular
category of events presently held at the Arena with greater frequency shall
constitute an event permitting the exercise of the Right of First Refusal
provided herein.


 


(ii)                                  The Right of First
Refusal may not be separated from this Agreement, transferred, pledged or
assigned by Meadowlands Master Developer Limited Partnership without the prior
written consent of the Authority which consent may be granted or withheld in
the sole discretion of the Authority.


 


(b)                                 Right of First
Refusal Procedures.  The Right of
First Refusal shall be governed by the following terms and conditions:


 


(i)                                     Promptly upon a
determination by the Authority that either or both of the events described in Section 10.2(a)
hereof have occurred (“ROFR Events”), the Authority shall deliver
written notice to the Developer (the “Offer Notice”).  The Offer Notice shall include, at a
minimum, a description of the event triggering the delivery of the Offer Notice
and all relevant facts (including effective or other material dates) and
proposed purchase price, rental and/or all other material financial terms
relating to the event described in such notice, together with a description of
the impacts of the occurrence of such event on the rights and obligations of
the Parties under this Agreement.  Such
notice shall also include copies of all supporting documentation relevant to
the information set forth in the Offer Notice reasonably available to the
Authority and not subject to legal and binding confidentiality agreements, and
upon which the Developer is expected to base its decision, including
specifically and without limitation, copies of any letter of intent, agreement
of sale, redevelopment agreement, operating or management contract or use
agreement and/or lease agreements.


 


(ii)                                  Not later than thirty
(30) days following receipt of the Offer Notice, the Developer may provide
written notice to the Authority of its determination as to whether the Right of
First Refusal will be exercised.  If the
Right of First Refusal is exercised by the Developer, the terms and conditions
set forth in the Offer Notice (unless otherwise modified to the mutual
satisfaction of the Parties) shall govern the Developer’s acquisition, use,
reuse and/or renovation of the Arena and no further negotiations concerning the
terms and conditions relating to such acquisition, use, reuse or renovation
shall be required; provided  however, that the Parties shall
negotiate in good faith with respect to a written agreement incorporating such
terms and conditions of acquisition, use, reuse and/or renovation; provided
further  however, that if the Offer Notice does not provide an
outside date for execution of a definitive agreement, the


 


51

















 


Authority and the Developer shall execute a definitive agreement within
one hundred eighty (180) days following exercise of the Right of First Refusal.


 


(iii)                               In the event that the
Developer rejects or fails to respond to the Offer Notice within the thirty
(30) day period set forth herein (time being of the essence), the Authority may
enter into the transaction contemplated by the Offer Notice upon the terms and
conditions set forth therein.  In the
event that the Authority fails to execute and close on a definitive agreement
with the Third Party memorializing the transaction contemplated by the Offer
Notice within one hundred twenty (120) days following waiver of the Right of
First Refusal by the Developer, the Authority shall be obligated to deliver
another Offer Notice in accordance with the provisions of Section 10.2(b)(i)
hereof.


 


(d)                                 Limitations.  Notwithstanding anything to the contrary
contained in this Agreement, the Developer acknowledges and agrees that its
Right of First Refusal applies only to the Arena and the Arena Site and not to
any other portion of the Meadowlands Complex.


 


(e)                                  Event of Default.  Developer acknowledges and agrees that the
provisions of this Section 10.2 shall not apply following the
occurrence of a Developer Event of Default. 
Further, such provisions shall not apply during any period of time in
which the Authority has given notice of the existence of a condition that, if
uncured, would lead to a Developer Event of Default.  Upon the occurrence of an ROFR Event, and prior to exercising its
rights under this Section 10.2(d), the Authority shall provide a
copy of the Offer Notice and a second notice of the existence of such condition
to the Developer and the Developer shall have an additional ten (10) Business
Day cure period from receipt of such second notice and which cure shall be
governed by Section 18.1 herein. 
If Developer fails to remedy in accordance with the provisions of Section 18.1,
the Authority shall have the right, subject to the terms hereof, to receive
proposals to enter into an agreement for the acquisition, use, operation,
management or redevelopment of the Arena (or any portion thereof) without
providing the Offer Notice to the Developer, as contemplated by the provisions
of this Section 10.2 and Developer shall have no further rights hereunder.  However, from and after the date (if any)
that the Developer Event of Default has been remedied, the provisions of this Section 10.2
shall again be effective as to any future offer and the Authority’s actions
shall be governed thereby.


 


(f)                                    Right of First
Refusal for Hotel at Meadowlands Racetrack.  The Declaration and the Ground Lease shall contain a right of
first refusal from the Authority for the benefit of the Developer and the
Project Site, with respect to the development of a hotel at the Racetrack (the
“Racetrack Hotel ROFR”).  The
Racetrack Hotel ROFR shall have terms and conditions similar to the terms and
conditions of the Right of First Refusal described in Sections 10.2(a)
through (e) above, modified to reflect any factual differences between the
nature of the two transactions and to contain the following terms and
conditions:  (i) the Authority shall
have the right to develop a hotel at the Meadowlands Racetrack only in the
event that video lottery terminals are installed at the Meadowlands Racetrack;
(ii) the Developer shall have the right to assign the Racetrack Hotel ROFR to
the Component Entity owning the Hotel Component; and (iii) if at the time the
Racetrack Hotel ROFR is triggered, the Developer or Component Entity, as the
case may be, shall have not yet committed to develop a hotel on the portion of
the Project Site planned for the Hotel Component, then the Developer or
Component Entity, as the case may


 


52

















 


be, shall have a reasonable period of time to attempt to demonstrate to
the Authority that a hotel having substantially the same utility to the
Authority can be built on the portion of the Project Site planned for the Hotel
Component instead of at the Meadowlands Racetrack, and if the Developer or
Component Entity, as the case may be, shall be unable to so demonstrate, then
(a) the Racetrack Hotel ROFR shall continue to be available to the Developer or
the Component Entity, as the case may be, and (b) regardless of whether the Racetrack
Hotel ROFR is exercised,  the Authority
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. 
As part of the negotiation of the Ground Lease and Declaration as
contemplated under this Agreement, the Parties shall exercise their good faith,
diligent and commercially reasonable efforts to negotiate the details and
language of the Racetrack Hotel ROFR.


 


SECTION 10.3.  Interference.  (a) In order to minimize the potential for
Authority Interference or Developer Interference, the Authority (i) shall not
execute any New Sports Complex Agreements with respect to the use or operation
of the Arena if the Developer fails to exercise its Right of First Refusal, if
such agreements, if implemented, would have a Material Adverse Effect on the
Developer or the Project, or (ii) covenants with the Developer to refrain (and
cause the entity with which the Authority has contracted for use of or
operation of the Arena and the Arena Site to refrain) from taking any actions
that will, in the reasonable judgment of the Developer, have a Material Adverse
Effect on the Developer or the Project.


 


(b)                                 In order to effectuate
the foregoing, the Declaration shall set forth the rights and obligations of
the Parties with respect to operation of the Arena, the Arena Site, the Project
and the Project Site and shall provide that any third party that will own,
lease or use the Arena in the manner contemplated in the Offer Notice shall be
obligated to make payment to the Developer of its pro-rata portion of Traffic
and Infrastructure Improvement Costs. 
In addition to the foregoing, if the Authority has funded its payment
for all or a portion of the Authority Traffic and Infrastructure Payment
Amount, the Developer shall refund to the Authority a prorated portion of funds
received from the third party.  Such
pro-rata portion shall be determined by multiplying the Actual Traffic and
Infrastructure Costs by a fraction, the numerator of which shall be equal to
the square footage of the Arena Site and the denominator of which shall be
equal to the sum of the square footage of the Project Site plus the
Arena Site.


 


(c)                                  The rights,
obligations and liabilities of the Parties under this Section 10.3
shall be subject to the mutual indemnification provisions of Section 17.6
and Section 17.7 hereof.


 


ARTICLE 11


CONSTRUCTION OF PROJECT


 


SECTION 11.1.  Construction Management Agreement.  (a) In order to minimize the potential for
the occurrence of either Developer Interference or Authority Interference as a
result of construction of the Project, as a Material Condition to the Ground
Lease Closing, the Parties shall exercise diligent commercially reasonable
efforts to negotiate and execute a Construction 




53

















 


Management Agreement that will set forth the respective rights and
obligations of the Parties and the procedures to be followed during
construction of the Project.


 


(b)                                 The Construction
Management Agreement shall be based upon and take into consideration all
relevant factors identified by the Parties, including without limitation, (i)
the Sports Complex Agreements, (ii) the Plans and Specifications, (iii) the
requirements of the Development Approvals, (iv) the Final Project Sequencing
Plan and the Final Traffic and Infrastructure Sequencing Plan, (v) all Traffic
Studies, and (vi) the Conceptual Site Plan (prior to Approval of the Master
Plan) and the Master Plan subsequent to the Authority’s Approval thereof, and
shall, at a minimum, address the matters set forth in this Article 11.


 


SECTION 11.2.  Project Professionals; Plans and Specifications.  Developer shall select and negotiate
contracts with, and shall supervise and coordinate the services of, all
architects, engineers, land planners and other experts and consultants
(collectively, the “Project Professionals”) necessary to provide architectural,
engineering, land planning and other services for the development and
construction of the Project and the completion of the Project and Traffic and
Infrastructure Improvements, including the preparation by such Project
Professionals of detailed plans, specifications and drawings for the Project
and Traffic and Infrastructure Improvements (such plans, specifications and
drawings, being herein collectively referred to as the “Plans and
Specifications”).  The Plans and
Specifications shall materially conform to and comply with the Conceptual Site
Plan and Approved Master Plan, as the case may be, Perimeter Survey, Project
Agreements and Legal Requirements.  All
such contracts shall be in the name of the Developer or the Component Entity,
as the case may be, but shall be consistent with the terms of this
Agreement.  As of the date hereof,
Developer has engaged the individuals and professional service firms set forth
on Schedule 11.2 attached hereto.


 


SECTION 11.3.  Authority’s Construction Representative.  (a) The Authority shall appoint, and at all
times during the Construction Period shall maintain, a qualified construction
consultant as the Authority’s Construction Representative to review and inspect
the work performed by Developer and advise the Authority in connection
therewith (the “Authority’s Construction Representative”).  The Authority hereby initially appoints the
party set forth on Schedule 11.3 hereof as the Authority’s
Construction Representative, subject to the Authority’s right to substitute
same in its sole discretion.  In the
exercise of its duties on behalf of the Authority, the Authority’s Construction
Representative shall have the right to exercise on behalf of the Authority, all
of the rights granted to the Authority under the Project Documents.


 


(b)                                 The Developer shall be
responsible for payment of compensation to the Authority’s Construction
Representative in an amount equal to 30% of the fees and expenses payable by
the Authority to the Authority’s Construction Representative per year for a
period of six (6) years from the Effective Date; provided  however,
the aggregate cumulative amount of the Developer’s contribution over the six
(6) year period shall not exceed $2,000,000.


 


SECTION 11.4.  Designated Representatives; Communication.  Each of Developer and the Authority hereby
designate the respective Designated Representatives set forth in Schedule 11.4
hereto.  Each of the Designated
Representatives shall be the agent of Developer and the Authority,
respectively, until Completion of the Project and shall be authorized to act on


 


54

















 


behalf of each Party, except to the extent that such authorization is
limited by the Developer or the Authority, as the case may be, in writing,
provided to the other Party.  In order
to maintain clear channels of reporting authority and avoid inconsistent
directions and miscommunications, all communications by the (a) Authority’s
Designated Representative with any of the Project Professionals or Project
Contractors shall be processed through the Developer’s Designated
Representative and (b) Developer’s Designated Representative with any of the
Authority’s staff, consultants and/or professionals shall be processed through
the Authority’s Designated Representative. 
Each of the Developer and the Authority may change the Designated
Representative from time to time, upon written notice to the other Party.


 


SECTION 11.5.  Review of Plans and Specifications.  The Developer shall consult with the
Authority with respect to the design and construction of the Project and shall
provide the Authority with copies of all Plans and Specifications for its
review, such review to be carried out in accordance with the provisions of this
Section 11.5 and Section 11.6 hereof.  The Developer shall review any comments
received from the Authority and shall exercise diligent and commercially
reasonable efforts to incorporate the Authority’s comments and proposed
changes; provided  however, that the Developer shall not be
obligated to modify the Plans and Specifications in such a way as would result
in a material increase in the cost of the design, permitting, construction or
operation of the Project (or the applicable Component thereof) or would result
in a material delay in commencement of construction of the Project (or any
Component thereof) and/or Final Completion or materially vary from the
Conceptual Site Plan, the Approved Master Plan as the case may be.  To the extent that Developer elects not to
incorporate into the Plans and Specifications modifications proposed by the
Authority, the Developer shall provide a written explanation to the Authority
as to the reasons that such proposed modifications are not to be so
incorporated.  Further, in such event,
the Developer shall use diligent and commercially reasonable efforts to confer
with the Authority to determine whether the Authority’s proposed modifications
could be incorporated in some other fashion such that the adverse effects
anticipated by the Developer are minimized or avoided.


 


SECTION 11.6.  Timing of Review.  The Authority and Developer acknowledge and
agree that the scope and volume of certain Plans and Specifications to be made
available to the Authority for review and comment hereunder are substantial and
varied, so that it may not be possible for the Authority to review and comment
on such documents within five (5) Business Days.  At the time the Developer delivers any documents to the Authority
for review hereunder, Developer shall simultaneously set forth in writing a
requested response date if other than five (5) Business Days, stating with
specificity any significant dates or events for which the approval of the
Authority is required or desirable including, without limitation, hearing
dates, expiration of appeal periods or similar matters designated in the
Project Schedule.  The Authority shall
exercise diligent and commercially reasonable efforts to complete the review
and deliver written comments to Developer prior to the expiration of any such
period.  Developer shall exercise
diligent and commercially reasonable efforts to deliver all documents and
materials to the Authority at such times, in such a manner and in such detail
as to permit the Authority to undertake a thorough review consistent with its
obligations hereunder.  Upon the
reasonable request of the Authority, Developer shall furnish such additional
plans, specifications, documents, reports, studies, information or
investigations as the Authority shall reasonably require in evaluating the
Plans and Specifications.  In the event
that the Authority fails to provide


 


55

















 


the Developer with its comments within the identified time for its
review and comments, then the Developer may submit such documents to the appropriate
regulatory agency without the Authority’s comments; provided  however,
that in such event, nothing herein shall be construed to prohibit the Authority
from subsequently providing comments to the Governmental Body having competent
jurisdiction for issuance of such Development Approval.


 


SECTION 11.7.  Notice of Commencement of Construction.  At least thirty (30) days prior to the
commencement of construction of the Project (or Component or Component Part),
the Developer (or Component Entity, as applicable) shall provide written notice
to the Authority of its intent to commence construction (the thirty-day period
following such notice, the “Construction Notice Period”).  On or prior to the last day of the
Construction Notice Period, the Authority shall review the Plans and
Specifications, and any updates to the Final Project Sequencing Plan and the
Final Traffic and Infrastructure Plan and such other documents as the Authority
may reasonably request to confirm compliance with this Agreement, the Master
Plan, the Construction Management Agreement and the other Project Agreements to
assure that construction of the Project (or the applicable Component thereof)
is consistent with the Construction Management Agreement, Approved Master Plan,
the Ground Lease (and, to the extent applicable, the Component Lease governing
the Component that is the subject of the pre-construction notice) and the
Development Approvals.  Unless the
Authority provides written notice to the Developer prior to the last day of the
Construction Notice Period that an inconsistency exists and the Authority has
determined that construction cannot commence, provided that no Developer Event
of Default then exists, the Developer may commence construction at the end of
the Construction Notice Period.


 


SECTION 11.8.  Compliance with Master Plan and
Development Approvals. 
The Project shall be constructed substantially in the manner and at the
locations shown and described (i) in the Master Plan (including, without
limitation, all of the narrative description related thereto) or any Approved
Post-Approval Item, in each case, as set forth in Section 6.2
hereof, (ii) the Development Approvals, and (iii) the Plans and Specifications
reviewed by the Authority related to the development of each Project Component
(subject to immaterial variances necessitated by field conditions and technical
considerations permitted under this Agreement and the Project Agreements).


 


SECTION 11.9. Shared
Utilities; Stormwater Management.  (a) Utilities. 
During the Construction Period, to the extent of available capacity and
as long as no Developer Interference results from such use, the Developer shall
be permitted to use sewerage, electricity and water from the utility systems
presently servicing the Sports Complex; provided  however, that
the Developer shall (at its expense) first install all necessary connections
and separate meters to monitor Developer’s consumption of electricity and
water.  Determinations as to whether
sufficient capacity is available for the Developer’s use shall be made in
accordance with the provisions of the Construction Management Agreement.  The Developer shall be responsible for
payment of all costs and expenses relating to the use of such utilities.


 


(b)                                 Utility Easements;
Modification of Utility Easements. 
As part of construction of any Project Component (or any Phase thereof),
Developer shall diligently proceed to cause all utility or other easements that
would materially interfere with the


 


56

















 


construction or maintenance of the Project (or applicable Project
Component, or Phase thereof) to be removed or relocated as expeditiously as
possible.  In any event, Developer shall
(with the Authority’s cooperation) cause such easements to be removed or
relocated before they interfere in any material respect with the prosecution of
the work involved with the Project in accordance with the Project
Schedule.  To the extent reasonably
requested by the Developer in order to facilitate the relocation of any existing
utility easements within the Sports Complex, the Authority shall execute all
reasonably necessary easements and/or amendments to existing easement
agreements at such time(s) as required so that the Developer may prosecute
construction of the Traffic and Infrastructure Improvements in accordance with
the Project Schedule and the Final Traffic and Infrastructure Improvement
Sequencing Plan.  Notwithstanding the
foregoing, in light of the numerous utility lines that are anticipated to be
required to be relocated prior to construction of the Project and the Traffic
and Infrastructure Improvements, the Developer may (in the exercise of its sole
discretion) determine not to obtain final executed easements relating to such
relocations until such time as all such relocations have been completed.  In such event, the Developer shall no later
than sixty (60) days prior to the estimated substantial completion of such
utility relocations, provide the Authority with fully designed drawings and
surveys of the utilities to be relocated and the required easements resulting
therefrom.  In such event, the Developer
shall, prior to commencement of construction of any relocated utilities, obtain
(with the cooperation of the Authority and in accordance with the provisions of
the Construction Management Agreement) such construction and access easements
and rights to relocate utilities as will be required to effectuate the
construction of the Project.  Except as
expressly provided in this Agreement or the Project Agreements, the Authority
shall have no obligation to procure or execute any agreement relating to any
easement or modification to any existing easement that: (A) imposes an
additional financial obligation on the Authority, (B) increases non-monetary
obligations and liabilities of the Authority in any material respect, (C)
materially interferes with the operation of the Sports Complex or creates
material operating inefficiencies with respect to the delivery of utilities to
any existing building or future development on the Meadowlands Complex
permitted under this Agreement; and (D) reduces the quantity or quality of
utility service to the Sports Complex.


 


(c)                                  Wastewater and
Stormwater Systems.  (i) To the
extent of available capacity (determined as of the Effective Date), the
Developer shall have the right to use (A) the Authority’s wastewater system,
and (B) the Authority’s detention basin in connection with Developer’s
dewatering of the Project Site, in accordance with the applicable provisions of
the Construction Management Agreement and the Project Operating Agreement so
long as such use does not (A) impose an additional financial obligation on the
Authority, (B) increase non-monetary obligations and liabilities of the
Authority in any material respect, (C) materially interfere with the operation
of the Sports Complex or creates material operating inefficiencies with respect
to the delivery of utilities to any existing building or future development on
the Meadowlands Complex permitted under this Agreement; and (D) reduce the
quantity or quality of water or other utility service to the Sports
Complex.  Any determinations as to
whether sufficient capacity is available for the Developer’s use shall be made
in accordance with the provisions of the Construction Management Agreement.  In furtherance of the foregoing, the Parties
shall cooperate, in good faith, to modify that portion of the Authority’s
stormwater management system servicing the Project Site, and, if necessary,
other portions of the Sports Complex, and modify the Authority’s NJPDES permit
relating to the foregoing.


 


57

















 


(ii)                                  From and after the
Effective Date, the Authority shall not grant any third party (including
without limitation, Existing Sports Complex Tenants) use of available capacity
in the Authority’s wastewater or stormwater systems in excess of the capacity
utilized by existing uses and tenants without the prior written consent of the
Developer (which consent shall be provided or withheld in the Developer’s
reasonable discretion); provided  however that if such grant will
not have a Material Adverse Effect on the Project, this Section 11.9(c)(ii)
shall not apply.


 


SECTION 11.10.  Construction Interference.  The Construction Management Agreement shall
provide for reasonable protections and remedies for construction interference
by Authority and Developer.


 


SECTION 11.11.  Compliance with Sports Complex
Commitments.  (a) Sports
Complex Events.  The Developer shall
use commercially reasonable construction methods to avoid creating a Developer
Interference, giving due consideration to, among other things, regularly
scheduled professional sports contests (including, without limitation,
professional football games, soccer games, racing events and professional hockey
and basketball games) and in such manner as is consistent with the provisions
of the Construction Management Agreement.


 


(b)                                 Dispute Resolution.  Developer and the Authority (subject to the
terms, covenants and conditions of Sports Complex Agreements and the
Construction Management Agreement) shall cooperate to resolve, in a
commercially reasonable manner, any material problem regarding a Developer
Interference that arises from Developer’s proposed construction activities on
the Project Site.


 


(c)                                  Construction
Barriers.  Developer acknowledges
that activities in the Sports Complex involve, among other uses, sporting
events and other public uses that may be adversely affected by Developer’s
construction of the Project, as a result of inaccessibility of parking fields
or avenues of ingress and egress, vibrations, utility interruption, noise and
fumes or any other conditions arising therefrom. During the period in which the
Project will be under construction, Developer shall, at Developer’s sole cost
and expense, install and maintain construction barriers to separate the Project
Site from the Sports Complex, as and to the extent required by the Construction
Management Agreement.


 


(d)                                 Plan Reviews;
Meetings.  Developer and the
Authority agree that Developer’s Designated Representatives shall have
regularly scheduled meetings with the Authority’s Designated Representatives
and the Project Contractors during the planning and construction stages of the
Project to discuss the impact of the construction activities on the Sports
Complex, the progress of the construction activities and how anticipated
construction activities can be performed in a commercially reasonable manner to
minimize any Developer Interference (including, without limitation, with the
conduct of regularly scheduled professional sports contests and entertainment
events).  Such meetings shall be
governed by the provisions of the Construction Management Agreement.


 


58

















 


(e)                                  Indemnification.  The rights, obligations and liabilities of
the Parties under this Section 11.11 shall be subject to the mutual
indemnification provisions of Section 17.6 and Section 17.7
hereof.


 


SECTION 11.12.  Office.  During the Construction Period, Developer
shall maintain within the State of New Jersey an office (the “Local Office”)
from which it will perform its duties hereunder.  Such office need not be distinct from an office in which
Developer carries on other activities. 
Developer may change the location of such office within the State of New
Jersey upon at least fifteen (15) days prior written notice to the Authority.


 


ARTICLE 12


PROJECT OVERSIGHT


 


SECTION 12.1.  Project Oversight Prior to Completion.  (a) Prior to Completion of the Project or
any Component or Phase thereof, Developer and the Authority shall cooperate to
exchange information relevant to the development of the Project or any
Component or Phase thereof, subject to compliance with third party
confidentiality agreements, and the restrictions placed on the disclosure of
material non-public information by federal securities laws.  In furtherance of the foregoing, the
Authority and Developer shall comply with the covenants and conditions set
forth herein.


 


(b)                                 Project Schedule.  During the Construction Period, the Developer
shall use its diligent and commercially reasonable efforts to prepare an
updated Project schedule (“Project Schedule”) no less frequently
than the first day of each quarter commencing on the first day of the month
immediately following the Commencement of Construction.  The initial Project Schedule is
attached hereto as Exhibit “E”.


 


SECTION 12.2.  Construction Approval.  The Authority acknowledges that prompt
responses to matters submitted for its review, comment or, to the extent
applicable, its Approval during the Construction Period are necessary to
maintain the Project Schedule.  For that
reason the Authority will not unreasonably withhold, condition or delay its
review or, to the extent applicable, its Approval of any such
construction-related matter submitted to the Authority during any Construction
Period.  Unless otherwise provided in
the Construction Management Agreement, if the Authority has not responded to
Developer’s request for review or, to the extent applicable, Approval within
five (5) days following the date that Developer has requested such review,
comment or, to the extent applicable, Approval in writing and provided the
Authority with copies of the applicable materials reasonably required or
related thereto, Developer may give the Authority’s Construction Representative
written notice of such failure to respond. 
If the Authority does not give Developer written notice objecting to the
matter in question within five (5) days after the date Developer gives this
notice (which notice shall identify such five (5) days deemed Approval
mechanism), the Authority’s review or, if to the extent applicable, Approval of
the matter in question shall be deemed given. 
The foregoing shall not limit or diminish the Authority’s rights of
review provided under Section 6.2 hereof with respect to
modifications of the Approved Master Plan.


 


59

















 


SECTION 12.3.  Progress Meetings.  Unless otherwise provided in the
Construction Management Agreement, Developer agrees to schedule regular
progress meetings to report on the status of the Project and to review the
progress under the Project Schedule. 
The Authority’s Construction Representatives shall attend each of such meetings
and the Authority hereby covenants to use commercially reasonable efforts to
assure that the Authority’s Construction Representative is present at such
meetings.  The Developer shall provide
the Authority with not less than three (3) Business Days advance written notice
of such meetings.  The meetings shall be
held at the Project Site or at such other mutually acceptable location as may
be appropriate in light of the agenda and progress meeting attendees.  Prior to the meeting, representatives of the
Authority may, in compliance with state and federal laws, regulations and
ordinances, visit the Project Site accompanied by representatives of Developer
to inspect the progress of the work on the Project.  The agenda for the meeting shall include, but not be limited to,
a status report with regard to development of Plans and Specifications,
Development Approval submissions and approvals, financial commitments,
construction of the Project and Traffic and Infrastructure Improvements, and
activities concerning marketing, sales and leasing.  At the meeting, this information may be reasonably evaluated by
the Authority to determine material compliance with the material terms and
conditions of this Agreement and the Project Schedule.  The Developer shall prepare and distribute
minutes of such progress meetings for review by the Authority.  Following review and revision (to the extent
required) of such meeting minutes, such minutes shall be maintained as a
permanent record of the Construction Period decisions made by the Parties.


 


SECTION 12.4.  Progress Reports.  Unless otherwise provided in the
Construction Management Agreement, Developer shall endeavor in good faith to
submit to the Authority a monthly written progress report (the “Progress
Report”) (or more frequent information regarding the progress of the
Project, if reasonably requested by the Authority) that shall include a
description of activities completed, the activities to be undertaken prior to
the next monthly progress report, the status of all Development Approvals, the
status of any Project financing, an explanation of each activity, if any, that
is showing delay, a description of problem areas, current and anticipated
delaying factors and their estimated impact on performance of other activities
and scheduled Completion Dates in the Project Schedule and an explanation
of corrective action taken or proposed.


 


SECTION 12.5.  Access to Project Site.  Subject to the Authority’s provision of
adequate liability insurance to insure the Authority and its Authorized
Representatives, the Authority and its Authorized Representatives shall have
the reasonable rights of access to enter the Project Site with a representative
of Developer to inspect the site and any and all work in progress for the
purpose of furthering its interest in this Agreement.  Such inspection shall be for informational purposes and shall not
relieve Developer from its obligation to implement the Project in accordance
with this Agreement.  In no event shall
the Authority’s inspection of the Project be deemed acceptance of the work or
be deemed to waive any right the Authority has under this Agreement.


 


SECTION 12.6.  Community Relations; Stakeholders
Advisory Group. 
Developer acknowledges the formation of a Stakeholders Advisory Group in
connection with the RFP consisting of two (2) local mayors; two (2) legislators
representing constituents from the region;


 


60

















 


two (2) representatives from the Meadowlands Chamber of Commerce; one
(1) representative from New Jersey Transit; one (1) representative from the
environmental community; and one (1) representative of the local trade unions
(collectively, the “Stakeholders Advisory Group”) and further
acknowledges the Authority’s commitment to maintain the functionality of the
Stakeholders Advisory Group during the Construction Period for the
Project.  As such, Developer shall after
the Effective Date until the Ground Lease Closing Date, at Developer’s sole
cost and expense, designate and assign a senior member of the Project Team to
act as a liaison (the “Stakeholders Liaison”) among Developer, the
Authority and the Stakeholders Advisory Group. 
The Stakeholders Liaison shall be available at reasonable times to meet
with the Stakeholders Advisory Group or the Authority.  On a timely and regular basis, Developer
shall notify the Stakeholders Advisory Group and the Authority, in writing, of
(a) written comments or recommendations Developer receives from any
Governmental Body regarding and/or relating to the Project and/or Developer’s
construction and operation thereof, and (b) the responses and/or actions taken
by Developer, if any, in response to such comments or recommendations.


 


SECTION 12.7.  Agreement to Cooperate; Authority’s Event
Rights; Operating Plan; Security.  (a) Agreement to Cooperate.  The Parties acknowledge that the mutual presence and simultaneous
operation of the Sports Complex facilities and the Project within the
Meadowlands Complex present complicated operational issues that will require
substantial initial and ongoing effort to successfully manage.  As further set forth herein and in the
Construction Management Agreement, the Project Operating Agreement, the Ground
Lease and the Declaration, the Parties exercise diligent commercially reasonable
efforts to cooperate and carry out their respective rights and obligations
under this Agreement and the Ground Lease in such manner as assures, to the
greatest extent practicable, the efficient operation of all facilities within
the Meadowlands Complex, including the Project.


 


(b)                                 Project Operating
Agreement.  (i) In order to minimize
the potential for the occurrence of either Developer Interference or Authority
Interference as a result of operations of the Project, the Parties shall
negotiate and execute a Project Operating Agreement that will set forth the
respective rights and obligations of the Parties and the procedures to be
followed during operation of the Project.


 


(ii)                                  The Project Operating
Agreement shall be based upon and/or recognize, as applicable (A) the
obligations imposed on the Authority and the rights granted under the Sports
Complex Agreements, (B) the Plans and Specifications, (C) the requirements of
the Development Approvals, (D) the Final Project Sequencing Plan and the Final
Traffic and Infrastructure Sequencing Plan, (E) the Conceptual Site Plan (prior
to Approval of the Master Plan) and the Master Plan subsequent to the
Authority’s Approval thereof, (F) the Declaration, and (G) the terms of the
Project Agreements, and shall, at a minimum, address the matters set forth in this
Article 12.


 


(c)                                  Authority’s Event
Rights.  The rights and obligations
of the Parties with respect to the Project Site and Parking Component, access
to, and vehicular parking at, and servicing of the Sports Complex for
designated events to be held at the Sports Complex pursuant to the Sports
Complex Agreements shall be determined by the Project Operating Agreement.


 


61

















 


(d)                                 Security.  The Authority and the Developer shall
mutually agree to a plan for security at the Sports Complex and Project
Site.  Such security plan shall
establish procedures and protocols to be followed by the Parties with respect
to communication, coordination and cooperation (taking into account all
relevant factors) so as to enable the (i) Authority to comply with its
obligations under any Sports Complex Agreements, and (ii) Developer to
construct, operate and manage the Project in the manner contemplated by this
Agreement and the Ground Lease.  Such
security plan shall be incorporated into the Project Operating Agreement and
the Declaration.


 


ARTICLE 13


USES, USE RESTRICTIONS; TENANCY

AND OPERATOR REQUIREMENTS


 


SECTION 13.1.  Permitted Uses; General Covenants.   Developer acknowledges that the Enabling
Legislation establishes and limits the types of facilities that may be
developed at the Project Site.  The
Authority has determined that the Enabling Legislation permits construction and
operation on the Meadowlands Complex of facilities similar in scope and
composition to the Project and permits such facilities to be operated in a
manner that includes the Component Uses. 
Developer represents, warrants and covenants that the Project shall be
developed and maintained in all respects as a first-class mixed-use development
and shall be used solely for the applicable Component Uses related to each of
the Hotel Component, the Office Component, the Entertainment/Retail Component
and the Parking Component.  The
foregoing shall not be deemed to require that the Components be constructed and
operated as separate uses, but rather, the Parties hereby acknowledge that one
or more Components may be developed as combined uses sharing common areas and
common amenities and facilities.  Unless
the Authority’s prior Approval of a Major Modification has been obtained, the
Developer shall, subject to and, to the extent required by, the material terms
of the Project Agreements, substantially maintain, and represents and warrants
it shall substantially maintain, the Component mix described by the definition
of Entertainment/Retail Component Uses, Office Component Uses, Hotel Component
Uses and Parking Component Uses, respectively. 
Schedule 13.1 sets forth certain prohibited uses which will
be incorporated into the Declaration and bind the Project Site and Sports Complex.


 


SECTION 13.2.  Tenants and Operators.  Developer shall use its commercially
reasonable efforts to attract and maintain first class Tenants and operators,
as that term is generally understood in the retail, office leasing, hotel, and
entertainment industries, including but not limited to nationally and
internationally known retail and hotel chains, real estate management
companies, and entertainment providers for all Components of the Project.


 


SECTION 13.3.  Litigation.  (a) If any litigation, the outcome of which
would make any representation or warranty provided by the Parties herein untrue
or materially inaccurate is commenced or otherwise seeks to enjoin, limit or
preclude the construction, development, use or operation of the Project, or effectuation
of this Agreement, the Project Agreements, any Component Lease, any Component
Agreement and/or the Development Approvals is instituted by a third party
(collectively, “Project Litigation”), the Parties shall jointly pursue
the defense of


 


62

















 


all Project Litigation to final judgment and, if adversely determined,
the Parties shall jointly and diligently pursue all rights of appeal.  If a court or tribunal of competent
jurisdiction issues a final, non-appealable order having the effect of limiting
or precluding the ability of the Developer to perform its obligations under
this Agreement or to effectuate the transactions contemplated by the Master
Plan and the Development Approvals, thereby causing the Authority’s
representations and warranties set forth in Section 15.9 and Section 16.2(a)
hereof to be inaccurate, the following provisions shall apply in lieu of any
other remedies that may be available under this Agreement, at law or in equity:


 


(i)                                     If the events
described in Section 13.3(a) occur, resulting in a reduction in the
aggregate square footage of the Project as proposed (or of any Component
thereof), and such events occur prior to the Ground Lease Closing Date, the
material condition relating to Project Litigation provided in Section 8.2(b)(vii)
shall be deemed satisfied and the amount of the Development Rights Fee, Ground
Rent and Developer PILOT Payments payable by the Developer shall be reduced on
a pro-rata basis to give effect to the reduced size and/or composition of the
Project.  Notwithstanding the foregoing,
if the resulting amount of GLA or square footage of the Project (or the
applicable Component), after giving effect to the events described in Section 13.3(a),
is less than eighty percent (80%) of the GLA or square footage of the Project
(or the applicable Component) as of the Effective Date (the “Minimum Project
Area”), either Party may, upon thirty (30) days prior written notice to the
other Party, determine to terminate this Agreement as to the Project Component
(or the applicable Component thereof) rather reducing the amount of the
Development Rights Fee.  If the
Agreement is terminated, the Refundable Security Deposit and the amount paid by
the Developer pursuant to the Deposit Letter shall be returned to the Developer
on the date that such determination becomes effective.  From and after such date, neither Party
shall have any rights or obligations with respect to the matters set forth in
this Agreement or the transactions contemplated hereby.  If the Agreement is not terminated, the
Developer shall have the right to reallocate portions of the GLA among the
Components to minimize the impact of the reduction on a particular Component,
subject, in all events to the terms and conditions of this Agreement and the
Project Agreements.


 


(ii)                                  If the events
described in Section 13.3(a) occur, prior to or after the Ground
Lease Closing Date and such events result in the prohibition of construction
and operation of any portion of the Entertainment/Retail Component, the
Development Rights Fee (to the extent occurring prior to the Ground Lease
Closing Date) and the Ground Rent and/or Developer PILOT Payment (to the extent
occurring after the Ground Lease Closing Date) shall be reduced on a pro-rata basis
in order to give effect to the impact of such order or decision, but in no
event shall exceed 600,000 square feet of GLA. 
600,000 square feet of GLA shall be used for purposes of calculating the
pro-rata reduction provided in this Section 13.3(a)(ii).


 


(iii)                               If the events described
in Section 13.3(a) occur subsequent to the Ground Lease Closing
Date, and the amount of GLA or square footage comprising the Project is reduced
as a result of such events but not so that less than the Minimum Project Area, the
Parties shall negotiate in good faith to modify this Agreement and the Ground
Lease (including without limitation a pro-rata reduction in the amount of the
Ground Rent and/or Developer PILOT Payment payable by the Developer or a
Component Entity, as the case may be) in order to give effect to the impact of
such order or decision.


 


63

















 


(b)                                 Surplus Property.  If the resulting amount of GLA or square
footage of the Project (or the applicable Component), after giving effect to
the events described in Section 13.3(a), is less than the Minimum
Project Area as of the Effective Date, and/or (ii) the Parties do not reach a
mutually acceptable modification to this Agreement and the Ground Lease so as
to reflect the impacts of the decision or order described in Section 13.3(a)
above (notwithstanding the provisions of Section 13.3(a)(ii) above,
the Developer may request that the Authority (i) determine that the Project
Site is not needed by the Authority to carry out its obligations under the
Existing Sports Complex Agreements, and (ii) as “surplus property”, lease the
Project Site to the Developer pursuant to the provisions of N.J.S.A. 5:10-5(f)
and N.J.S.A. 5:10-18(a).  The terms of
such lease shall provide for the Project to be constructed and maintained in
substantially the same manner and on substantially the same terms as are set
forth in this Agreement.  If the Parties
do not reach a mutually acceptable modification of this Agreement and the
Ground Lease (as provided in Section 13.3(a) above) and the
Developer does not lease the Project Site pursuant to the provisions of this Section 13.3(b),
then upon thirty (30) days prior written notice, the Developer may terminate
this Agreement.  In such event, this
Agreement shall be of no force and effect from and after such date.


 


(c)                                  Exclusive Remedy.  This Section 13.3 is intended by
the Parties as the exclusive repository of the Parties’ respective rights and
obligations with respect to any reduction in the GLA or restriction upon the
use of the Project by reason of Project Litigation.  Except as to the right to enforce the terms and conditions of
this Agreement, the Authority and Developer each waives, relinquishes and
agrees to forebear from exercising any rights, claims or causes of action for
any loss, contribution, indemnity, damages, or other harm with respect to the
occurrence of the events described in this Section 13.3, that
either Party may have or that may hereafter accrue against the other by reason
of any adverse impact of any Project Litigation.


 


SECTION 13.4.  Sunday Closing Law Compliance.  The Developer shall comply with the
provisions of the Sunday Closing Law, N.J.S.A. 2A:171-5.8, to the extent in
effect in Bergen County, New Jersey, and covenants not to challenge the
applicability of same to the Project or any portion thereof.  Each of the agreements with Tenants and
operators of the Entertainment/Retail Component shall require compliance with
Legal Requirements.


 


SECTION 13.5.  Declaration of Covenants and Restrictions.  (a) Contents and Effect of Declaration.  As a Material Condition to the Ground Lease
Closing, Developer and the Authority shall negotiate in good faith and enter
into a mutually satisfactory Declaration of Covenants and Restrictions (the “Declaration”)
to be recorded in the Bergen County, New Jersey land records on the Ground
Lease Closing Date and prior to the recording of any leasehold mortgage or
other encumbrance relating to the Project Site.  It is intended and agreed, and the Declaration shall so expressly
provide, that the agreements and covenants set forth therein shall be covenants
running with the land and that they shall, in any event, and without regard to
technical classification or designation, legal or otherwise, and except only as
otherwise specifically provided in this Agreement, be binding, to the fullest
extent permitted by law and equity, for the benefit and in favor of, and
enforceable by the Authority and/or the Developer, as their interests may
appear, and any successor in interest to the Project Site, or any part thereof,
against Developer and/or the Authority, as the case may be, its successors and
assigns and every


 


64

















 


successor in interest therein, and any party in possession or occupancy
of the Project Site or any part thereof. 
It is further intended and agreed that the provisions of the Declaration
shall remain in effect without limitation as to time; provided  however,
that such agreements and covenants shall be binding on the Parties, each
successor in interest to the Project, the Project Site, or any part thereof,
and each party in possession or occupancy. 
The Declaration shall address matters of material interest to the Parties
including, without limitation, the following: 
uses, design criteria, parking, non-interference, reciprocal access to
and from the Arena and Project Site, respective maintenance obligations and
Right of First Refusal.


 


(b)                                 Restriction Against
Transfers.  The Declaration shall
contain a restriction against transfers, as set forth in Article 14
hereof and, in addition, shall provide that in the event of any attempted
transfer in violation of the restriction in Article 14 hereof, the
Authority shall be entitled to the ex  parte issuance of an injunction
restraining such transfer, and legal fees and related expenses of the Authority
in connection with any such legal action. 
Upon the recording of the Declaration in the land records of Bergen
County, the provision affording such injunctive relief shall have the same
force and effect as a Notice of Lis Pendens.


 


(c)                                  Enforcement by the
Authority.  In furtherance, and not
in restriction of the provisions of this Section 13.5, it is
intended and agreed that the Authority shall be deemed beneficiary of the
provisions of the Declaration in its own right but also for the purposes of
protecting the interests of the community and other parties, public or private,
in whose favor or for whose benefit such agreements and covenants shall run
(and the Declaration shall so state), without regard to the nature of the
Authority’s interest in the Project Site. 
The Authority shall have the right, in the event of any breach of any
provision of the Declaration, to exercise all the rights and remedies and to
maintain any actions or suits at law or in equity or other proper proceedings
to enforce the curing of such breach of agreement or covenant, to which it or
any other beneficiaries of such provision may be entitled, including without
limitation, recoupment of any funds from a rental in violation of the
Declaration, injunctive relief to prevent further violation of the Declaration,
entry on the premises and specific performance.


 


SECTION 13.6.  Mutual
Use Recognition.  As
provided in this Agreement including but not limited to Sections 3.7, 10.1
and 11.1, the Authority has expressly informed the Developer and the
Developer has acknowledged that the Authority requires a certain level of
flexibility with respect to the current and future uses at the Sports Complex
including Giants’ Stadium, Arena and Meadowlands Racetrack. The Parties have
agreed herein that the mutual provisions addressing the Parties’ respective use
issues will be addressed in the Project Agreements including but not limited to
the Declaration. In furtherance of the foregoing, the Parties agree as follows:


 


(a)           Developer
Recognition. Developer acknowledges and agrees that the Sports Complex
includes the Arena, Giants Stadium and the Meadowlands Racetrack, each of which
are established venues operated and maintained by the Authority in accordance
with and pursuant to the Enabling Legislation, which venues may be upgraded,
renovated or otherwise altered at any time after the Effective Date, subject to
the terms of this Agreement and the Project Agreements.  Developer further acknowledges that
following the Effective Date, the Authority shall continue to use, occupy and
operate, directly or indirectly, Giants Stadium, the Arena and Meadowlands


 


65

















 


Racetrack pursuant to applicable Existing Sports Complex Agreements and
the Enabling Legislation including for future uses; provided, such uses are
substantially consistent with the uses for which the assets are currently being
used or permitted to be used by the Authority as of the Effective Date hereof
and subject to the terms of this Agreement, Project Agreements, Right of First
Refusal (hereinafter defined), and the Enabling Legislation. The Developer
recognizes the Existing Sports Complex Agreements and acknowledges that the
rights granted to Developer and the obligations assumed by Developer hereunder
are subordinate to the rights granted by the Authority to the Sports Complex
Tenants. Accordingly, subject to the Master Plan and the Project Agreements,
the Developer shall use its diligent and commercially reasonable efforts to
accommodate such continuing use of the Sports Complex facilities including but
not limited to the renovation or redevelopment thereof consistent with the
terms of Section 10.1 and Section 13.6(b) herein.  Subject to the foregoing, the Authority
shall have maximum flexibility related to authorizing and approving uses,
renovation and redevelopment plans provided such uses, renovation and/or plans
are directly related to the primary business purposes of Giants Stadium, the
Arena and Meadowlands Racetrack as sports and/or entertainment related
spectator oriented venues. Specifically, the Authority shall have the right to:


 


(i)                                     authorize and/or
approve entertainment, recreational, 
training or educational facilities and such facilities necessary or
useful to promote athletic contests, spectator events, trade shows and other
expositions that are directly related to the primary business purpose of the
Arena, Giants Stadium or the Meadowlands Racetrack as the case may be; provided
however, that such facilities shall (A) not routinely and primarily be
open to the general public during non-event times, (B) generally require
payment of the admission price and/or presentation of the spectator ticket
prior to accessing the space containing such facilities, and (C) not include
Entertainment/Retail Uses which when taken in the aggregate (determined by
square footage) could in the commercially reasonable discretion of the
Developer be viewed as competing directly with the Entertainment/Retail
Component Uses on the Project Site;


 


(ii)                                  authorize and/or
approve business offices which are directly related to the primary business
purposes of the Arena, Giants Stadium and the Meadowlands Racetrack as the case
may be, including, without limitation, sports franchise offices, Authority
offices and offices maintained in connection with any other uses permitted to
be carried out at the Sports Complex; provided  however, that
such  offices permitted hereunder shall
not be offered for lease, license or other form of occupancy agreement to third
parties separately from the primary business permitted to be conducted
hereunder.


 


(iii)                               any souvenir store,
concession stand, restaurant, pushcart, or similar customary
stadium/arena/track amenity within the Arena, Giants Stadium and the
Meadowlands Racetrack including but not limited to, the sale at retail of food
and beverage (including “white tablecloth” fine dining facilities), sports
branded merchandise including clothing and souvenirs, provided  however,
that such facilities shall (a) routinely and primarily not be open to the
general public during non-event times, (b) generally require payment of the
admission price and/or presentation of the spectator ticket prior to accessing
the space containing such facilities, and (c) not include Entertainment/Retail
Uses which when taken in the aggregate square footage could in the commercially
reasonable discretion of the Developer be viewed as competing directly with the
Entertainment/Retail Component Uses on the Project Site.


 


66

















 


(b)                                 Authority
Recognition. The Authority acknowledges and agrees that the exclusive
development rights granted to the Developer pursuant to the terms hereof have a
significant value by reason of their exclusivity, and Developer acknowledges
that the Authority has selected Developer as the exclusive developer by reason
of the Developer’s unique experience and business acumen in the exercise of
such rights.  In consideration of the
foregoing, the Authority covenants and agrees to protect the exclusivity of
such rights, subject to the terms hereof and the other Project Agreements, by
and through the imposition and exercise of the rights and obligations provided
in this Section 13.6. Subject to the Existing Sports Complex
Agreements and the rights provided in Section 13.6(a) above, the
Authority grants Developer an exclusive with respect to the Component Uses. The
covenants, conditions, and restrictions contained in this Section 13.6
are for the benefit of the Project Site, and shall run with the land and inure
to and pass with the Project Site, and are intended to be binding on Authority
and its successors and assigns. As noted above, these exclusive rights shall be
memorialized in the Declaration and recorded against the Project Site and
Sports Complex. The Authority shall use diligent, commercially reasonable
efforts to enforce the restrictive covenants provided herein at the Authority’s
sole cost and expense.  The Authority
acknowledges that Developer may, but is not obligated to, enforce such
restrictive covenants and the Authority hereby authorizes Developer, at
Developer’s election following the failure of the Authority to enforce such
rights, to file suit at law or in equity on the Authority’s behalf and seek a
court injunction or damages against any third party in violation of such
restrictive covenants, in which event Authority shall reimburse Developer for
all reasonable attorney’s fees, expenses and costs of suit.  The rights granted herein shall be
incorporated into the Ground Lease, the Declaration and any Component Agreement
and Component Lease (except a Component Lease to which the Authority is not a
party).


 


ARTICLE 14


TRANSFER RESTRICTIONS


 


SECTION 14.1.  Transfers Prohibited.  Except as otherwise specified in Section 14.2
below, neither this Agreement nor the Developer’s interest in the Project or
any Component thereof, shall be assigned, mortgaged, pledged, encumbered or
otherwise transferred, directly or indirectly, by operation of law or otherwise
(all of the foregoing, collectively a “Transfer”), without the prior
Approval of the Authority, which Approval shall not be unreasonably withheld,
conditioned or delayed so long as Developer shall have complied with the terms
of this Article 14, as applicable.


 


SECTION 14.2.  Permitted Transfers.  (a) Notwithstanding the prohibitions set
forth in Section 14.1 of this Agreement, the following Transfers
shall be permitted without prior Approval of the Authority:


 


(i)                                     a Transfer to an
Affiliate of either Mills or Mack-Cali solely for the purpose of owning,
developing, constructing, financing, leasing, operating and/or managing the
Project, the Project Site and/or a Component under this Agreement, provided
that such entity shall have promptly following formation executed and delivered
to the Authority (A) evidence 


 


67

















 


reasonably satisfactory to the Authority of the due formation and
identity of the constituent members of such Affiliate, (B) a Component
Agreement or other written assumption of all or a portion of the obligations
and liabilities of Developer hereunder in form and substance reasonably
satisfactory to the Authority, (C) if applicable, a Component Lease executed
and delivered in accordance with and subject to the terms of this Agreement,
and (D) completed documents required pursuant to Section 19.4
hereof, with contents reasonably acceptable to the Authority; or


 


(ii)                                  a mortgage or
mortgages (including a deed or deeds of trust or other security instruments)
granted to Project Lender(s) in connection with Project Indebtedness, including
any Transfer to the holder of a mortgage (or deed of trust or other security
instrument) securing Project Indebtedness in connection with a foreclosure of a
mortgage or exercise of remedies under other security instruments or a deed in
lieu of foreclosure or to any purchaser at any foreclosure sale under such
Project Indebtedness; provided  however, any purchaser at a
foreclosure sale or any successor in interest from the holder of the mortgage
(or deed of trust or other security instrument) that shall acquire title
through foreclosure or deed in lieu of foreclosure shall, as a condition to
exercising the rights of Developer under this Agreement,  execute a recognition and estoppel or other
agreement in form reasonably acceptable to the Authority in which such holder
or successor agrees to be bound by the terms and conditions of this Agreement.


 


(iii)                               any lease, license or
other occupancy or similar agreement with a Tenant or operator, however styled
or denominated, for all or any portion of the Project with occupancy to occur
following issuance of a Certificate of Completion for the relevant portion of
the Project subject to such lease, license, occupancy or other agreement;


 


(iv)                              Transfers of ownership
interests in Developer, or their existing respective direct or indirect equity
owners, provided that Mills or Mack-Cali shall retain Control of the Developer
following such Transfer;


 


(v)                                 Transfers that are
required in order to protect The Mills Corporation’s or Mack-Cali Realty
Corporation’s status as a Real Estate Investment Trust under the Internal
Revenue Code (“REIT”);


 


(vi)                              Transfer as a result of
(A) a change in ownership or Control of Developer, The Mills Corporation, The
Mills Limited Partnership and/or Mack-Cali Realty Corporation and/or Mack-Cali
Realty, L.P. (including as a result of change in Control, by operation of law
or otherwise) occurring in connection with the merger, acquisition or
consolidation of The Mills Corporation and/or Mack-Cali Realty Corporation or
(B) the sale of all or substantially all of their respective assets, as the
case may be.


 


The foregoing are referred to in this Agreement as “Permitted
Transfers”.  In addition to any
other documentation required pursuant to the terms of this Agreement, to the
fullest extent practicable, the Developer shall deliver written notice of a
Permitted Transfer (together with all other documents required in connection
with the transfer enumerated above) not less than fifteen (15) days prior to
the effective date of such Permitted Transfer. 
To the extent fifteen (15) days 


 


68

















 


advance written notice is not practicable, notice of such Permitted
Transfer shall be provided as soon as practicable and in any event no later
than contemporaneously with such Permitted Transfer.


 


(b)                                 Notwithstanding the
provisions of Section 14.1, changes in the ownership of the
Developer to admit entities who wish to acquire an equity interest in the
Developer shall not constitute a Transfer hereunder so long as such Transfer
does not result in a change in Control of the Developer.  However, in such event, the Developer shall
provide written notice to the Authority setting forth the name of the entity
that has purchased such equity interest in the Developer as provided in Section 14.2(a)
above.


 


SECTION 14.3.  Involuntary Transfers; Bankruptcy.  (a) Successors.  Upon
any transfer or assignment of this Agreement or the development rights granted
hereunder in fact or by operation of law, as a result of any bankruptcy or
insolvency proceeding, to any Successor, such Successor shall execute,
acknowledge and deliver to the Authority an agreement in form and substance satisfactory
to the Authority whereby such Successor shall agree to assume all of the
covenants and agreements set forth in this Agreement on the part of Developer
to be performed, and whereby such Successor shall expressly agree that all of
the provisions of this Article shall, notwithstanding such assignment,
continue to be binding upon it with respect to all future assignments and
transfers.  For purposes of this
Agreement, a “Successor” means any entity assuming the obligations of
Developer under this Agreement or otherwise acquiring an interest in and to the
development rights either separately or in connection with the acquisition of
the goodwill and all or substantially all of the other property and assets of
the Developer, or assuming all or substantially all of the Developer’s
liabilities (including the liabilities of Developer hereunder); provided
however, that such assignment shall not be effected with the primary
intent of subverting or avoiding the restrictions and prohibitions set forth in
this Article.


 


(b)                                 Bankruptcy.  In the event that Developer shall file a
petition under the Bankruptcy Code or if any involuntary petition under the
Bankruptcy Code is filed against Developer, and Developer assumes this
Agreement and proposes to assign this Agreement pursuant to the provisions of
the Bankruptcy Code to any Person who shall have made a bona  fide
offer to accept an assignment of this Agreement on terms acceptable to
Developer, then notice of such proposed assignment shall be given to the
Authority by the Developer no later than twenty (20) Business Days after
acceptance by the Developer of such bona  fide offer, but in any
event no later than ten (10) Business Days prior to the date that Developer
shall make application to a court of competent jurisdiction for authority and
approval to enter into such assignment and assumption.  Such notice shall set forth (i) the name and
address of such Person, (ii) all of the terms of such offer, and (iii) adequate
assurance of future performance by such Person under this Agreement as set
forth in Section 14.3(c) below, including without limitation, the
assurance referred to in Section 365(b)(1) of the Bankruptcy Code.


 


(c)                                  Adequate Assurance.  The term “adequate assurance of future
performance” as used in this Agreement shall mean that any proposed assignee
shall, among other things, (i) deliver to the Authority financial statements of
such assignee (or the Person or Persons having Control over such assignee) for
the prior three (3) fiscal years, as finally determined after an audit and
certified as correct in all material respects by a certified public accountant,
which financial statements shall disclose a net worth determined in accordance
with


 


69

















 


generally accepted accounting principles substantially equal to the net
worth determined in accordance with generally accepted accounting principles
and adjusted for the effect of inflation, of The Mills Corporation on the
Effective Date; (ii) provide evidence reasonably satisfactory to the Authority
that neither The Mills Corporation nor Mack-Cali Realty Corporation nor any of
their Affiliates shall have a financial, beneficial or other interest in the
proposed assignee and (iii) provide such other information or take such action
as the Authority, in its reasonable discretion, shall determine is reasonably
necessary to provide adequate assurance of future performance by such assignee
of its obligations under this Agreement.


 


SECTION 14.4.  Transfers
for Which Authority Approval Required.  (a) Request for Transfer. In the event that the Developer
proposes to Transfer this Agreement or its interest in the Project (or any
Project Component or Component Part) or its leasehold interest in the Project
Site (or any Project Component Site or Component Part) other than in connection
with a Permitted Transfer, the Authority’s prior written Approval shall be
required, which Approval shall not be unreasonably withheld, delayed or
conditioned.  In such event, the
Developer shall provide written notice to the Authority at least thirty (30)
days but not more than one hundred fifty (150) days prior to the date of the
proposed Transfer.  Together with such
notice, the Developer and the proposed transferee (“Proposed Transferee”
and, if Approved pursuant to this Section 14.4, a “Transferee”)
shall submit to the Authority:


 


(i)                                     A written request
for Approval of the Proposed Transferee (a “Transferee Application”)
executed by the Developer and the Proposed Transferee setting forth the full
and correct legal name of the Proposed Transferee and any assumed names used by
such Proposed Transferee during the preceding five (5) years, the principal
place of business of the Proposed Transferee, the name, mailing address,
telephone and fax number and e-mail address of the Proposed Transferee’s
contact person to whom the Authority shall direct communications and inquiries
and stating the proposed date and general terms of the proposed Transfer.


 


(ii)                                  Financial statements,
including profit and loss and cash flow statements prepared in accordance with
generally accepted accounting principles consistently applied for the three (3)
fiscal years of the Proposed Transferee next preceding the date of submission
of the Transferee Application, or, if the last preceding fiscal year has ended
less than one hundred twenty (120) days prior to the date of the Transferee
Application and financial statements for such year have not been completed,
financial statements for the three (3) fiscal years next preceding that year shall
be provided, which financial statements, in each case, shall have been reviewed
by an independent certified public accountant and certified by the Chief
Financial Officer of the Proposed Transferee to be true and complete in all
material respects.  In the event that a
Proposed Transferee cannot demonstrate such operating history, then evidence of
such operating and/or management experience by the Proposed Transferee or the
principal owners/operators of the Proposed Transferee with respect to similar properties
which shall be reasonably acceptable to the Authority.


 


(b)                                 Approval of
Transfer Documents.  No Transfer for
which the Approval of the Authority is required under this Section 14.4
shall occur until such time as the Authority has Approved fully executed
documents evidencing such Transfer which are reasonably satisfactory in form
and substance to the Authority, including without limitation, the following
items (collectively, the “Transfer Documents”):


 


70

















 


(i)                                     If
applicable, Component Agreement and Component Lease relating to the Component
Interest to be transferred, executed by the Authority and the Transferee (which
shall be a Component Entity), by virtue of which the Transferee recognizes and
assumes the obligations of the Developer under this Agreement and the Project
Agreements as they relate to the Component Interest being transferred.


 


(ii)                                  In
the event of a Component Lease being entered into pursuant to Section 9.4(g)
hereof, a Component Lease executed by the Developer and the Transferee.


 


(iii)                               To
the extent not previously provided or otherwise required to be provided
hereunder or to the extent any previously provided information or materials are
no longer accurate, (A) a statement providing the Transferee’s full and
accurate legal name, any assumed name under which it intends to operate, and
its notice address, (B) if an entity, its state of formation, copies (bearing
filing stamps, as appropriate) of its formation and operating documents, (C) the
names and addresses of each of the executive officers and directors or,
partners or members, as applicable, of the Transferee, (D) evidence of the
authority of the entity to assume and perform the obligations of the Developer
under the Component Agreement and of the individual acting for such entity to
so act, and (E) a certificate of existence and good standing from the Secretary
of State of its state of formation, and, if doing business in New Jersey, a
certificate from the Secretary of State of the State, establishing its
qualification to do business in the State.


 


(iv)                              Completed
documents required pursuant to Section 19.4 hereof, with contents
reasonably acceptable to the Authority.


 


(c)                                  Release
of Developer.  A Transfer to a
Transferee Approved by the Authority pursuant to this Section 14.4,
as evidenced by the Authority’s Approval in writing of the Transfer Documents,
shall release the Developer from any further obligation under this Agreement or
the Ground Lease as to the Component Interest transferred.  Following such Transfer, the Authority shall
look solely to the Component Entity for performance of the obligations of such
Entity with respect to the applicable Component.  The Authority shall execute such documentation as may reasonably
be requested by the Developer to evidence such discharge and release.  Notwithstanding the foregoing, a Component
Lease executed by the Developer pursuant to Section 9.4(g) hereof
shall not release the Developer hereunder.


 


(d)                                 No
Transfers Prior to Ground Lease Closing Date. Notwithstanding the foregoing
to the contrary, prior to the Ground Lease Closing Date, the Developer shall
not convey, transfer, hypothecate or grant, in whole or in part, any of the
rights granted hereunder to persons or entities that are not owned or
Controlled directly or indirectly by The Mills Corporation or Mack-Cali Realty
Corporation.


 


ARTICLE 15


ENVIRONMENTAL MATTERS


 


SECTION 15.1.  Acknowledgments; Allocation of
Responsibility; Waiver. 
(a) Acknowledgements; Allocation of Responsibility.  Subject to the terms and conditions of this
Article, the Authority and Developer acknowledge and agree that:


 


71

















 


(i)                                     Developer
has been provided certain documentary and other due diligence information and
an opportunity to conduct certain investigations of the Project Site as
authorized by the Authority.


 


(ii)                                  Developer
shall be solely responsible for the performance of any and all Remediation on,
in or under the Project Site and any other properties to which Releases of
Hazardous Materials have migrated, or shall migrate, from the Project Site, as
required by any Environmental Law, including, without limitation Remediation
arising out of the Authority’s Environmental Responsibility hereunder, provided
however, that the Authority shall pay the Authority’s Environmental
Remediation Contribution, if any is determined to be due pursuant to the terms
of this Article.


 


(iii)                               The
Authority and the Developer shall cooperate and consult with each other at all
relevant times so that the Developer may perform any and all necessary
Remediation in a timely and cost-effective manner, but without creating
Developer or Authority Interference and without intentionally causing violation
of any obligation of the Authority under any Environmental Law.  The Developer may perform the Remediation
under the voluntary cooperation program of the NJDEP pursuant to a memorandum
of agreement (“MOA”). The Authority shall have the right to review in advance
and Approve each of the steps in the Remediation (to the extent arising out of,
or relating to, the Authority’s Environmental Responsibility) that the
Developer proposes to present to the NJDEP and to receive copies of all
communications to and from the Developer, its environmental consulting firm and
the NJDEP.  Nevertheless, it is agreed
that the Developer may propose to the NJDEP to (A) remove or otherwise
remediate Hazardous Materials at the Project Site only to the extent necessary
to meet its nonresidential criteria for soils; (B) establish a CEA for
groundwater; and (C) install and maintain engineering and institutional
controls consistent with such proposal. 
If the NJDEP shall approve and the Developer shall properly perform such
Remediation, the Authority will execute and file a deed in the land records of
Bergen County giving notice that the Project Site is subject to Land Use
Restrictions.  The Developer’s
obligations to maintain engineering and institutional controls and any
monitoring or other continuing obligations shall remain in effect,
notwithstanding the issuance of a no further action letter and/or covenant not
to sue by the NJDEP.


 


(iv)                              Notwithstanding
anything in this Agreement to the contrary, the Authority shall be responsible,
at its sole cost and expense, to perform any and all activities relating to or
in any way associated with addressing a natural resource damage claim by any
Governmental Body that arises out of the Authority’s Environmental
Responsibility.


 


(b)                                 Waiver of Other
Remedies.  This Article 15
together with the indemnities provided in Article 17 are intended
by the Parties as the exclusive repository of the Parties’ respective rights
and obligations with respect to any Environmental Claim or Remediation required
under any Environmental Law.  Except as
to the right to enforce the terms and conditions of this Agreement, the
Authority and Developer each waives, relinquishes, and agrees to forbear from
exercising any rights, claims, or causes of action for any loss, contribution,
indemnity, damages, or other harm with respect to the Project Site, either
Party may have or that 


 


72

















 


may hereafter accrue against the other under any Environmental Law,
known and unknown, including without limitation the Spill Act, CERCLA, RCRA and
the common law.


 


SECTION 15.2.  Developer Initiated Data.  (a) In order to more fully inform itself
regarding any Release of Hazardous Materials (i) with respect to any area of
the Project Site identified in the Master Plan as a location for proposed
construction or demolition, Developer, at its sole cost and expense, may
conduct such investigations, sampling and other assessments as it deems
appropriate and obtain environmental data from an environmental laboratory
certified by the NJDEP for the test performed at any and all locations shown on
the Conceptual Project Site Plan or the Master Plan, as the case may be, and
the methodology of such sampling shall be performed in accordance with the
NJDEP Technical Regulations and (ii)  in
any other areas of the Project Site that may be the Authority’s Environmental
Responsibility, Developer, at its sole cost and expense, may conduct such
investigations, sampling and other assessments as it deems appropriate and
obtain environmental data from an environmental laboratory certified by the
NJDEP for the test performed at any and all locations on the Project Site, and
the methodology of such sampling shall be performed in accordance with the
NJDEP Technical Regulations; provided  however, that, in the event
that such investigations, sampling and other assessments reveals the Release of
Hazardous Material that is the Authority’s Environmental Responsibility, then
the costs associated with such activities shall be part of the Authority’s
Environmental Remediation Contribution.


 


(b)                                 Promptly upon receipt,
and in no event more than five (5) days after receipt, Developer shall provide
a copy to the Authority of such data or other reports obtained pursuant to subsection (a)
above.  Except as otherwise provided in
this Article, the Authority shall not be required to undertake any Remediation
or other actions in response to any such data or other report that are not
otherwise required by NJDEP or any other Governmental Body, but shall provide
evidence to Developer that the Authority has reported to the NJDEP any
information in such reports that the Authority is required by Environmental
Laws to report to the NJDEP.  Nothing in
this Section shall preclude or require, or be deemed to preclude or
require, Developer from making any notification to any Governmental Body .


 


SECTION 15.3.  Developer’s Remediation.  (a) Developer shall have the responsibility
to comply with all Environmental Laws subject to the payment of the Authority’s
Environmental Remediation Contribution.


 


(b)                                 Developer shall
proceed in a commercially reasonable manner with any Remediation as the NJDEP
may require, and shall use its commercially reasonable efforts to obtain for
the Project Site an NFA and, if legally available, a covenant not to sue; provided
however, the Developer shall be excused from obtaining a covenant not to
sue if and to the extent the statute or regulations applicable to the issuance
of such covenant are amended or modified such that a covenant not to sue is not
legally available or would enlarge the scope of the Developer’s Environmental
Responsibility beyond that otherwise required by this Article.


 


(c)                                  Developer shall
promptly upon receipt and in no event more than five (5) Business Days
thereafter, provide to the Authority copies of any testing results, reports, 


 


73

















 


correspondence and notices to or from Developer relating to or in
connection with the Environment.


 


(d)                                 Until the Project Site
has received all required NFA’s or equivalent written acknowledgment from a
Governmental Body to the effect that the Project Site, including all
environmental media on, at, in, under or from the Project Site, does not
require any further Remediation, the Developer shall perform any required Remediation,
including ongoing monitoring, inspection, reporting and maintenance
requirements of any Land Use Restrictions. 
In the event the groundwater under or from the Project Site is the
subject of a Classification Exception Area (“CEA”) designation by the
NJDEP, Remediation of such groundwater shall remain the Developer’s
responsibility, until such time as such CEA is terminated or made permanent
without requirement for any monitoring or active Remediation by the Developer
or any Person.


 


(e)                                  In performing any
Remediation at or with respect to the Project Site after the Effective Date,
the Developer shall:


 


(i)                                     Perform, and cause
all consultants, contractors, and other agents retained by the Developer to
perform, all such Remediation in a workmanlike manner and consistent with all
applicable Environmental Laws and Legal Requirements.


 


(ii)                                  Comply with all
Environmental Laws and Legal Requirements applicable to the implementation of
such Remediation


 


(iii)                               Provide the Authority
with a reasonable opportunity to review in advance and comment upon any work
plans, reports or any other submissions to any Governmental Body respecting any
Remediation that arises out of the Authority’s Environmental Responsibility and
to consult with the Developer, and the Developer shall incorporate such
comments of the Authority to avoid or minimize any Developer Interference.  Developer shall give the Authority an
opportunity to review and comment prior to making any submission to any Governmental
Body; provided  however, that the Authority shall provide its
comments to the Developer as quickly as reasonably possible, but in no event
more than five (5) Business Days after receipt of a document from the
Developer, except as otherwise provided in Section 11.6
hereof.  Developer may submit documents
to the appropriate regulatory agency if comments have not been provided by the
Authority at the expiration of the aforementioned five (5) day period.


 


(iv)                              Implement Remediation in
such manner, at such times and with such advance notice as to minimize any
Developer Interference and, in the event of an Interference, the Parties shall
consult in order to minimize or avoid any such Interference, and the
Authority’s written consent, which shall not be unreasonably withheld,
conditioned or delayed shall be required for the installation of any
Remediation Equipment to be permanently installed in or on the Project Site or
for any Remediation Equipment that may be temporarily installed in proximity to
any building within the Sports Complex.


 


74

















 


(v)                                 Provide the Authority
with copies of all documents relating to Remediation that the Developer (A)
submits to any Governmental Body in connection with any Remediation proposed or
implemented by the Developer at the same time the Developer submits such
documents to such Governmental Body, and (B) receives from any Governmental
Body in connection with the Project Site, within five (5) Business Days from
the date of the Developer’s receipt of the same.


 


(vi)                              Be solely responsible for
the management, transportation, treatment, handling, and disposal of all wastes
generated at the Project Site in connection with any Remediation, including,
without limitation, completion of all manifests and other shipping and disposal
documents in accordance with Environmental Law and the identification of the
Authority as the “generator” of such wastes on all such manifests and documents
and other shipping and disposal documents. 
The Redeveloper shall furnish to the Authority all manifest copies and
other information necessary to enable the Authority to fulfill its obligations
as generator.


 


(vii)                           Not develop any permanent
hazardous or solid waste facilities at or within the Project Site (for example
landfills or impoundments); provided  however, nothing in this
subsection shall preclude Developer from using or reusing excavated soils
as fill, backfill, or otherwise on the Project Site subject to the requirements
of the NJDEP soil reuse policies and procedures.


 


(viii)                        Implement any required
mitigation as a result of dredging, filling, use, encroachment, injury or
damage to wetlands, or other natural resources on any portion of the Project
Site.


 


(ix)                                Locate and remove as
soon as practicable, or relocate on the Project Site to a location reasonably
acceptable to the Authority, all Remediation Equipment and Hazardous Materials
and other wastes generated at the Project Site, including soil piles and other
visible evidence of Remediation, where their continued presence is unsightly,
or constitutes an Developer Interference or health or safety hazard.


 


(x)                                   Promptly upon
completion of any required Remediation or phase of Remediation, and if
permitted by the NJDEP, fill and grade all test holes, close any monitoring
well no longer required in connection with the Remediation in compliance with
applicable Environmental Law, remove all associated Remediation Equipment, pave
or repair any existing groundcover and regrade, seed, or landscape and
otherwise restore the Project Site to the maximum extent practicable to the
prior existing conditions consistent with any required Remediation.


 


(xi)                                Install all future
wells in connection with the Remediation with flush mounting and locks.


 


(f)                                    The Authority shall
reimburse the Developer for the Authority’s Environmental Remediation
Contribution either through: (i) payment by the Authority to the Developer for
the Authority’s Environmental Remediation Contribution arising out of the


 


75

















 


Authority’s Environmental Responsibility within thirty (30) days from
the date of receipt of all documentation supporting the Developer’s request for
payment, or (ii) offsetting such amount from (A) the Development Rights Fee (to
the extent the Ground Lease Closing Date has not occurred), or (B) to the
extent that the Ground Lease Closing Date has occurred, any payments then due
and payable or to be paid by the Developer during the term of this Agreement or
the Ground Lease (including specifically and without limitation, the Ground
Rent and/or the Developer PILOT Payments). 
The amount of such offset shall be equal to the costs paid by the
Developer to perform Remediation attributed to the Authority’s Environmental
Responsibility (together with interest thereon until fully paid at the Overdue
Rate, plus the reasonable and ordinary costs of collection, including without
limitation, reasonable attorneys fees). 
In the event that this Agreement is terminated pursuant to the terms
hereof, as the case may be, and Developer has incurred Remediation costs that
constitute a part of the Authority’s Environmental Remediation Contribution,
then the Authority shall reimburse the Developer in accordance with Section 15.3(f)(i).  If at the time that the Developer is
obligated to pay the Development Rights Fee, additional Remediation attributed
to the Authority’s Environmental Responsibility is necessary, then the
Authority shall deposit Five Hundred Thousand Dollars ($500,000) in escrow to
be held by the Developer.  The Developer
may draw from this amount to pay for Remediation costs until Remediation is
completed and all NFAs are issued for the Project Site.  In the event that this initial escrow amount
is depleted, the Authority shall deposit an additional amount of Five Hundred
Thousand Dollars ($500,000) in escrow for reimbursement of costs incurred by
the Developer that are the Authority’s Environmental Remediation
Contribution.  The Authority shall be
obligated to replenish the escrow fund, beyond the amounts specified above, on
a continuous basis, in amounts as agreed to by the parties, until all NFAs are
issued.  Any remaining balance held in
escrow shall be returned to the Authority.


 


SECTION 15.4.  Historic Fill Material.  Notwithstanding anything in this Agreement
to the contrary, in the event that the NJDEP determines that all or portions of
the Project Site contains Historic Fill Material and that an engineering
control in the form of a cap is appropriate Remediation for such material, then
the costs for construction of such cap shall not constitute part of the
Authority’s Environmental Remediation Contribution and shall be paid for by the
Developer; provided  however, that in the event that NJDEP
determines that an area within Historic Fill Material requires Remediation
other than capping, and such Remediation is not the Developer’s Environmental
Responsibility, then the costs associated with such Remediation shall remain as
the Authority’s Environmental Contribution. 
Further, in the event that NJDEP determines that maintenance and monitoring
activities are necessary in order to ensure protectiveness of the cap, then
such activities shall be undertaken and paid for by the Developer.


 


SECTION 15.5.  Environmental Insurance.  (a) Contractor’s Environmental Liability
Insurance.  (i) Developer shall
cause the Project Contractors engaged for the Remediation and the contract(s)
for construction of the Project Improvements, if Hazardous Material(s) exist
where such improvements are proposed, to obtain, prepay in full for, and
deliver to the Authority an environmental liability insurance policy(ies)
reasonably acceptable to the Authority with respect to the Project Site for
environmental investigation and clean-up costs for any releases of pollutants
or contaminants, as defined in the policy(ies), that may occur on, over or
under the Project Site or may be emitted, discharged or leaked from the Project
Site resulting from the Remediation of the Project Site and construction of the
Project Improvements or the applicable


 


76

















 


Phase thereof.  The term of such
policy(ies) shall commence upon the earlier of (A) Developer’s first
acquisition of an interest in the Project Site or (B) commencement of the
earlier of the Project Improvements and the Remediation, and continue until the
issuance of the final Completion Certificate for the Project Improvements.  Such policy shall provide coverage
(including legal defense costs) for bodily injury, property damage, and environmental
cleanup costs on a claims-made basis, with a deductible or self-insured
retention not greater than Twenty-Five Thousand Dollars ($25,000) per
occurrence.  Such insurance policy shall
be obtained from an insurer admitted to do business in New Jersey or a surplus
lines insurer reasonably acceptable to the Authority.  Such insurance policy shall name the Authority Indemnified
Parties and the Developer as additional named insured persons and shall require
the written consent of the Authority for cancellation by the Developer.  The environmental liability insurance to be
maintained pursuant to this Section 15.5(a) shall have occurrence
limits of not less than $5,000,000 per occurrence and an aggregate of not less
than $5,000,000.


 


(b)                                 Authority Approval.  The Authority shall have the right to reasonably
approve the form and substance of all insurance policies required to be
provided pursuant to this Section.


 


SECTION 15.6.  No Third-Party Rights.  Nothing in this Article 15 shall
be deemed to create any rights of contribution or subrogation in any insurer or
third party, or any third-party beneficiary rights, provided, however, such
rights shall inure to Affiliates, as applicable.


 


SECTION 15.7.  Effect on Indemnities.  Nothing in this Article 15 shall
alter or limit, or be deemed to alter or limit, the indemnities of the Parties
as provided in Article 17 hereof.


 


SECTION 15.8.  Survival.  The provisions of this Article 15
shall survive the termination of this Agreement and shall expire fifteen (15)
years after the Developer has provided the Authority with an NFA or NFAs for
the entire Project Site and a covenant not to sue, if applicable, under ISRA; provided
however, that if this Agreement is terminated, then the Developer’s
obligation to perform Remediation under this Agreement that arises out of the
Authority’s Environmental Responsibility or relates to capping Historic
Fill  Material, as well as maintaining
and monitoring such cap, shall likewise terminate and the Authority shall
within thirty (30) days of receipt of all documentation from Developer
evidencing incurrence of Remediation costs reimburse the Developer for all such
costs that are the Authority’s Environmental Remediation Contribution.  Notwithstanding anything herein to the
contrary, the Authority’s Environmental Remediation Contribution shall not
include costs associated with capping Historic Fill Materials.  Notwithstanding termination of this
Agreement, the Developer shall be obligated to complete Remediation associated
with the Developer’s Environmental Responsibility.  The foregoing provisions shall be equally applicable with respect
to any Component (or Phase thereof) upon provision by the Developer of an NFA
for such Component (or Phase thereof) and a covenant not to sue, if applicable,
with respect to such Component (or Phase).


 


SECTION 15.9.  Environmental Representations and
Warranties by the Authority. 
Except as set forth in Schedule 15.9 hereof, the Authority
hereby represents and warrants that, to the best of its knowledge:


 


77

















 


(i)                                     The Sports Complex
is not in violation of any Environmental Law.


 


(ii)                                  The Authority does
not own, operate or lease any property which a Governmental Body has demanded
to be Remediated of any Hazardous Material and which has not been Remediated of
such Hazardous Material.


 


(iii)                               There is no federal or
State lien as referred to in CERCLA, the Spill Act or similar law that has
attached to the Authority property.


 


(iv)                              Except for Remediation
undertaken by the Authority and funded by the federal or State Government,
there has been no federally or State funded removal or remedial action at the
Sports Complex.


 


(v)                                 No Section 104
information request or similar request under applicable State law, such as the
Spill Act, has been issued to the Authority pertaining to the Sports Complex.


 


(vi)                              The Authority has not
received written notice of intention to commence suit pertaining to the Sports
Complex pursuant to the New Jersey Environmental Rights Act, N.J.S.A. 2A:35A-1,
et seq., the New Jersey Water Pollution Control Act, N.J.S.A. 58:10A-1, et
seq., (as amended by the Clean Water Enforcement Act, P.L. 1990, c. 38) or the
Federal Water Pollution Act, 33 U.S.C. §1251 et seq.


 


(vii)                           With the exception of
applications filed for Development Approvals relating to the Project, there are
no pending applications for any environmental approvals or permits with respect
to the Project Site or the business conducted at the Project Site.


 


(viii)                        No underground storage tank
exists on the Project Site.


 


ARTICLE 16


REPRESENTATIONS AND WARRANTIES


 


SECTION 16.1.  Representations and Warranties by
Developer.  (a) Developer
hereby represents and warrants the following to the Authority for the purpose
of inducing the Authority to enter into this Agreement and to consummate the
transactions contemplated hereby, all of which shall be true as of the date
hereof:


 


(i)                                     Formation.  Developer is a limited partnership duly
formed, validly existing and in good standing under the laws of the State of
Delaware, and is qualified to do business under the laws of the State of New
Jersey, and has all requisite partnership power and authority to carry on its
business as now conducted and as contemplated by this Agreement will be
conducted, and to enter into and perform its obligations under this Agreement.


 


(ii)                                  Partners.  As of the Effective Date, (A) Meadowlands
Mills Limited Partnership and Mack-Cali Meadowlands Special L.L.C. are general
partners of the


 


78

















 


Developer, with Meadowlands Mills Limited Partnership, the managing
general partner of the Developer, and (B) Meadowlands Mills Limited Partnership
and Mack-Cali Meadowlands Entertainment L.L.C. are the limited partners of
Developer.


 


(iii)                               Legal Authority;
Power.  Developer has the legal
power, right and authority to (A) enter into this Agreement and the instruments
and documents referenced herein to which Developer is a party, (B) consummate
the transactions contemplated hereby, (C) take any steps or actions
contemplated hereby, and (D) perform its obligations hereunder.


 


(iv)                              Execution; No
Violation.  This Agreement has been
duly executed by Developer, and is valid and legally binding upon Developer and
enforceable in accordance with its terms on the basis of the laws presently in
effect and the execution and delivery hereof and will not violate the limited
partnership agreement or other formation or operating documents of the
Developer or result in a breach or constitute a default under or violate the
terms of any indenture, agreement or other material instrument to which
Developer is a party or by which the Developer or its material assets may be
bound or affected.


 


(v)                                 No Pending
Litigation.  There is no pending, or
to the best of Developer’s knowledge (after reasonable inquiry) threatened,
litigation that would prevent Developer from performing its duties and
obligations hereunder or have a material adverse effect on the financial
condition or business of the Developer. 
There are no outstanding judgments against the Developer that would have
a material adverse affect upon the assets or property of the Developer or which
would materially impair or limit the ability of the Developer to enter into or
carry out the transactions contemplated by this Agreement.


 


(vi)                              Financial Matters.  Developer has the capability of obtaining
the requisite debt and equity financing in an amount sufficient for the
construction, development and operation of the Entertainment/Retail Component.


 


(vii)                           No Conflict.  This Agreement is not prohibited by and does
not conflict with any agreements, instruments, judgments or decrees to which
the Developer is a party or is otherwise subject.


 


(viii)                        No Violation of Laws.  The Developer has received no notice as of
the date of this Agreement asserting any non-compliance in any material respect
by the Developer with applicable statutes, rules and regulations of the United
States of America, the State of New Jersey, the State of Virginia or of any
other state, municipality or agency. 
The Developer is not in default with respect to any judgment, order,
injunction or decree of any court, administrative agency or other governmental
authority which is in any respect material to the transactions contemplated
hereby.


 


(ix)                                No Speculation.  Developer’s undertakings pursuant to this
Agreement are for the purpose of development of the Project and the Project
Site and not for speculation in land holding.


 


79

















 


(x)                                   Project Documents.  The Conceptual Site Plan, Preliminary
Traffic and Infrastructure Sequencing Plan, Preliminary Project Sequencing
Plan, the Final Traffic and Infrastructure Improvements, the Estimated Wetlands
Restoration Amount all as set forth on the exhibits and schedules attached
hereto and incorporated herein are based upon reasonable assumptions and fairly
present to the Authority the subject matter thereof.


 


SECTION 16.2.  Representations and Warranties by
Authority.  (a) The
Authority hereby represents and warrants the following to Developer for the
purpose of inducing Developer to enter into this Agreement and to consummate
the transactions contemplated hereby, all of which shall be true as of the date
hereof:


 


(i)                                     Formation.  The Authority is an instrumentality of the
State of New Jersey, and under the Enabling Legislation has all requisite power
and authority to enter into and perform its obligations under this Agreement.


 


(ii)                                  Legal Authority;
Power.  The Authority has the legal
power, right and authority to (A) enter into this Agreement and the instruments
and documents referenced herein to which the Authority is a party, (B)
consummate the transactions contemplated hereby, (C) take any steps or actions
contemplated hereby, and (D) perform its obligations hereunder.  The Enabling Legislation provides the
Authority with sufficient right and power to carry out the Authority’s
obligations set forth in the Agreement and the terms and conditions and the
respective rights and obligations of the Parties set forth herein are
consistent with the Enabling Legislation.


 


(iii)                               Execution; No
Violation or Conflict.  This
Agreement has been duly executed by the Authority and is valid and legally
binding upon the Authority and enforceable in accordance with its terms on the
basis of laws presently in effect and the execution and delivery hereof and
will not violate the Enabling Legislation, by-laws or other regulations or
documents governing the actions of the Authority or result in a material breach
or constitute a material default under or violate the terms of, or conflict
with, any indenture, agreement or other instrument to which the Authority is a
party or by which the Authority or its material assets may be bound or
affected.


 


(iv)                              No Developer
Interference.  The Existing Sports
Complex Agreements are the only agreements relating to the use of the Sports
Complex facilities in existence as of the Effective Date.  Based upon the Conceptual Site Plan attached
hereto as Schedule 6.1(b), and in light of the activities described
in the Preliminary Project Sequencing Plan and the Preliminary Traffic and
Infrastructure Sequencing Plan, the provisions of the Existing Sports Complex
Agreements do not and will not, to the best of the Authority’s knowledge (after
diligent inquiry), conflict with the respective rights, duties and obligations
of the Parties under this Agreement, nor do such Existing Sports Complex
Agreements limit or preclude the Parties’ ability to carry out and perform
their respective rights and obligations under this Agreement.


 


(v)                                 No Pending
Litigation.  Except for the matters
disclosed on Schedule 16.2(v) hereof, there is no pending, or to
the best of the Authority’s knowledge (after


 


80

















 


reasonable inquiry) threatened, litigation that would prevent the
Authority from performing its duties and obligations hereunder or have a
material adverse effect on the financial condition or activities of the
Authority.  There are no outstanding
judgments against the Authority that would have a material adverse effect upon
the Project Site or which would materially impair or limit the ability of the
Authority to enter into or carry out the transactions contemplated by this
Agreement.


 


(vi)                              No Violation of Laws.  The Authority has received no notice as of
the date of this Agreement asserting non-compliance in any material respect by
the Authority with applicable statutes, rules or regulations of the United
States of America, the State of New Jersey, or of any other state, municipality
or agency.  The Authority is not in
default with respect to any judgment, order, injunction or decree of any court,
administrative agency or other governmental authority which is in any respect
material to the transactions contemplated hereby.


 


SECTION 16.3.  Indemnification.  This Article shall be
subject to the provisions of Section 17.6 and Section 17.7
hereof.


 


SECTION 16.4.  Incorporation
into Agreements.  The
representations and warranties set forth in this Article 16 shall
be incorporated into the Ground Lease, each Component Lease, and each Component
Agreement with such modifications as the context shall require.


 


ARTICLE 17


INSURANCE; INDEMNIFICATION


 


SECTION 17.1.  Developer Insurance.  (a) At all times during the term of this
Agreement and the Ground Lease, as applicable, Developer shall maintain or
cause to be maintained at its own cost and expense or at the cost and expense
of its subcontractors, insurance in the form and amounts detailed herein.  All policies shall be placed with insurers
reasonably acceptable to Authority, and be rated at least “A” with a financial
size category of at least “X” by A.M. Best & Co.


 


(b)                                 All insurance provided
by Developer or its subcontractors, as required by this Article, shall have the
Authority added as an additional insured, except for workers compensation and
insurance against damage to the Project Site and or the Project by fire or
other risk.


 


(c)                                  Developer shall
procure policies for all such insurance for periods of not less than one year
and shall deliver to Authority certificates or memoranda and copies of such
policies with evidence of the payment of premiums thereon and shall procure
renewals thereof from time to time at least thirty (30) days before the
expiration thereof.  See Sections
17.2-.4 hereof for the type of policies to be obtained.  All policies placed pursuant to this
Agreement shall contain provisions that they may not be canceled or materially
changed without thirty (30) days prior written notice to Authority.


 


(d)                                 All premiums on
policies referred to in this Agreement shall be paid by Developer.  Certificates representing such policies
shall be delivered to the Authority’s Vice


 


81

















 


President of Risk Management immediately upon receipt from the
insurance company or companies. 
Certificates and copies of new or renewal policies replacing any
policies expiring during the term hereof shall be delivered to Authority at
least thirty (30) days before the date of expiration, together with proof
satisfactory to Authority that the premiums have been paid by Developer.  Premiums on policies shall not be financed
in any manner whereby the lender, on default or otherwise, shall have the right
or privilege of surrendering or canceling the policies, provided  however,
that Developer may pay premiums in installments so long as same does not
constitute a default under any Project Indebtedness.


 


(e)                                  If the Developer
shall have secured and maintained the policies of insurance described in this
Section in the limits set forth in Section 17.2, Section 17.3
or Section 17.4, as the case may be, and the proceeds of such
insurance shall be insufficient to pay the entire cost of the rebuilding,
restoration, repair, replacement and alteration work required by the Developer
pursuant to this Section, the excess cost shall be borne by Developer.


 


(f)                                    Developer shall not
carry separate insurance (other than personal injury liability insurance)
concurrent in form or contributing in the event of loss with that required by
this Agreement to be furnished or which may reasonably be required to be furnished
by Developer.


 


(g)                                 Subject to the
provisions of this Agreement with respect to Interference and use of the Arena
and Arena Site, and except to the extent otherwise provided in the Construction
Management Agreement, the Project Operating Agreement and the Declaration,
Developer shall be responsible for maintaining the Project Site and the Project
in a safe and secure condition at all times. 
Developer shall ensure compliance with all federal, State, county and
municipal laws, rules and regulations having jurisdiction over the Project Site
and/or the Project.


 


(h)                                 In the event any item
of insurance required to be procured by Developer hereunder is not available,
or is not available at commercially reasonable rates,  Developer may propose a modification of such requirement and
provide the reasons therefore in writing to Authority.  Authority may, at its sole discretion, waive
or modify any provision hereunder in light of such request.


 


(i)                                     If at any time any
of the policies shall be or become unsatisfactory to Authority, acting in a
reasonable manner, as to form and substance, or if any of the insurers issuing
such policies shall be or become unsatisfactory to Authority, acting in a
reasonable manner, Developer, upon the written request of the Authority, shall
promptly attempt to obtain a new and satisfactory policy in replacement.  With respect to all insurance required to be
obtained pursuant to this Agreement, Authority will not find a policy issued by
a satisfactory insurer to be unsatisfactory as to form and substance unless it
contains an exclusion or omission of coverage not generally included in
policies issued for similar projects. 
Without limiting the generality of the provisions of this Section, from
time to time during the term hereunder, but not more than once every three (3)
years, Authority, acting in a reasonable manner, shall have the right to
require Developer to raise the limits of the various liability coverages set
forth in this section, or


 


82

















 


to require insurance against other insurable hazards, and Developer
shall comply or cause compliance with, any such reasonable request.


 


(j)                                     Developer shall be
responsible for the payment of all amounts not paid by the insurers that issue
policies required by Sections 17.2, 17.3 and 17.4 by reason of
deductibles, self-insured retentions and aggregate and per-occurrence limits.


 


SECTION 17.2.  Developer’s Insurance Obligations During
the Pre-Construction Period. 
Prior to or simultaneous with the execution of this Agreement, the
Developer shall deliver to the Authority’s Vice President of Risk Management,
certificates of insurance evidencing the insurance policies described in this Section 17.2
and copies of such policies.  The
Parties acknowledge that applicable insurance requirements and the certificates
thereto have previously been delivered to the Authority pursuant to the Right
of Entry Agreement.  These insurance
coverages shall remain in effect until the OCIP referenced in Section 17.3
has been reviewed and approved by the Authority (in the exercise of its
reasonable discretion).  These insurance
requirements apply to all Project Professionals that are retained subsequent to
the execution of this Agreement. The Developer shall thereafter deliver certificates
evidencing renewal of each policy on or before the date of certificate
expiration.


 


(i)                                     Primary commercial
general liability insurance (including contractual coverage) with limits not
less than $1,000,000 per occurrence and $1,000,000 in the aggregate, with a
$150,000 deductible.


 


(ii)                                  Excess liability
insurance with limits not less than $10,000,000 per occurrence and $10,000,000
in the aggregate providing defense and indemnity immediately upon exhaustion of
the underlying primary coverage.  The coverage
of the excess liability  policy shall
follow the form or otherwise correspond to the form of the primary policy.


 


(iii)                               Worker’s compensation
insurance in accordance with statutory requirements.


 


(iv)                              Automobile liability
insurance providing coverage of not less than $1,000,000 combined single limit
for bodily injury and property damage arising out of ownership or use of any
vehicle whether or not owned.


 


SECTION 17.3.  Developer’s Insurance Obligations During
The Construction Period. 
(a) At all times during the Construction Period, and until the Project
is Completed, Developer shall maintain or cause to be maintained at its own
cost and expense, the following kinds and the following amounts of insurance
with respect to the Project. With regard to Section 17.3(a)(i), (ii)
and (iv) below, it is the intent of the Developer to obtain an owner
controlled insurance program (OCIP) or an equivalent managed insurance program,
subject to availability of pertinent coverages/policies, the ultimate design of
which will be subject to review and 
approval by the Authority.  The
OCIP shall be obtained and delivered to the Authority for review within
forty-five (45) days following the Effective Date.  The amount of deductible for each policy will be agreed upon by
the Parties prior to the inception of the OCIP.  The Developer


 


83

















 


agrees that the OCIP (or similarly managed insurance program) will be
specific to the Project and will not be sharing limits with other projects.


 


(i)                                     Commercial General
Liability (CGL) in an amount not less than $2,000,000 per occurrence.  The policy shall cover liability arising
from premises, operations, independent contractors, products-completed
operations, personal injury and advertising injury and pollution incidents
arising from pollutants that are brought on or to the Project Site in
connection with construction operations and liability assumed under an insured
contract including, but not limited to this Agreement and the Ground Lease.


 


(ii)                                  Umbrella and/or
Excess Liability insurance sufficient to provide total liability limits of
$50,000,000 for General Liability, Auto Liability and Employer’s
Liability.  The coverage of the excess
liability policy shall follow the form or otherwise correspond to the form of
the primary policy.


 


(iii)                               Automobile liability
insurance for all owned, non-owned and hired vehicles insuring against bodily
injury, including death, and property damage in an amount not less than
$1,000,000 per occurrence.


 


(iv)                              Statutory Worker’s
Compensation coverage including Employer’s Liability limits of not less than
$1,000,000 each accident for bodily injury by accident and $1,000,000 per
employee for bodily injury by disease.


 


(v)                                 Builder’s Risk
insurance covering improvements to the site in an amount not less than the
full-completed value of the Project. 
The policy shall be written on an “All Risk” form and provide coverage
for the perils of Flood and Earthquake, separately in an amount not less than
$25,000,000.  The policy shall
include,  coverage for debris removal,
demolition and increased cost of construction, interruption by civil or
military authority and ingress/egress.


 


(vi)                              Boiler & Machinery
insurance covering all boilers and mechanical equipment when connected and
ready for use and following electrical, hydrostatic, pneumatic or gas pressure
acceptance tests, in an amount not less than $25,000,000.


 


(vii)                           Coverage offered under the
Federal Terrorism Risk Insurance Act of 2002 shall be required, in an amount
not exceeding the requirements of the Project Lenders.


 


(viii)                        Owners Protective Professional
Indemnity insurance with a minimum limit of $4,000,000 for each claim and
annual aggregate applicable solely to the Project.  The policy shall be endorsed to provide for an extended reporting
period on claims for three (3) years past the Final Completion Date and shall
include Authority Indemnified Parties as additional insureds.  The Developer shall also furnish (or cause
to be furnished) to the Authority evidence reasonably satisfactory to the
Authority that any Project Professional with whom it has contracted for the
design of the Project carries errors and omissions insurance, with a minimum
limit of $1,000,000 for each claim and annual aggregate.


 


84

















 


The Developer agrees to cause each of the
design Project Professionals to name the Authority as additional insured on the
respective Project Professionals’ errors and omissions insurance.


 


(b)                                 Developer shall obtain
performance and payment bonds from the Project Contractors in an amount not
less that 100% of the full contract value awarded for any and all improvement
to the premises. In lieu of bonds, Developer may use Subguard insurance policy.


 


SECTION 17.4.  Developer’s Insurance Obligations During
Post-Construction Period. 
It is the intention of the Developer to design the OCIP described in
Section 17.3(a) hereof to roll over into the Master Insurance Program at
Final Completion of the Project.  The
amount of deductible of each policy will be agreed upon by the Parties prior to
completion of the OCIP.  The Master
Insurance Program, which shall be maintained by the Developer, at its own cost
and expense, at all times through the Post-Construction Period until expiration
or early termination of the Ground Lease, will include the following policies
with respect to the Project:


 


(i)                                     Commercial General
Liability (CGL) in an amount not less than $1,000,000 per occurrence.  CGL insurance shall cover liability arising
from premises, operations, independent contractors, product-completed
operations, personal injury and advertising injury and liability assumed under
an insured contract including, but not limited to, this Agreement and the
Ground Lease.


 


(ii)                                  Automobile liability
insurance for all owned, non-owned and hired vehicles insuring against bodily
injury, including death, and property damage in an amount not less than
$1,000,000 per occurrence.


 


(iii)                               Statutory Worker’s
Compensation coverage including Employer’s Liability limits of not less than
$1,000,000 each accident for bodily injury by accident and $1,000,000 per
employee for bodily injury by disease.


 


(iv)                              Umbrella and/or Excess
Liability insurance sufficient to provide total liability limits of
$100,000,000 for General Liability, Auto Liability, Employer’s Liability.  The coverage of the excess liability policy
shall follow the form or otherwise correspond to the form of the primary
policy.


 


(v)                                 Property insurance on
all buildings, structures, improvements and betterments fixtures, machinery,
apparatus and business personal property owned by Developer in an amount not
less than the full replacement cost of the insured property.  The policy shall be written on an “All Risk”
form and provide coverage for the peril of Flood and Earthquake, separately in
an amount not less than $25,000,000. 
The policy shall include coverage for debris removal, demolition and
increased cost of construction, interruption by civil or military authority and
ingress/egress.


 


(vi)                              Business Interruption,
Extra Expense or Loss of Rents insurance in such amounts as shall be reasonably
required by the Developer’s Project Lenders.


 


85

















 


(vii)                           Boiler & Machinery
insurance covering all boilers and mechanical equipment when connected and
ready for use and following electrical, hydrostatic, pneumatic or gas pressure
acceptance tests, in an amount not less than $25,000,000.


 


(viii)                        Coverage available under the
Federal Terrorism Risk Insurance Act of 2002 shall be required.


 


(ix)                                Garagekeeper’s
liability insurance with aggregate and per occurrence limits of at least
$1,000,000.


 


SECTION 17.5.  Authority Insurance.  (a) At all times during the Construction
Period and until Completion of the Project, the Authority shall maintain or
cause to be maintained at its own cost and expense, the types and amounts of
insurance with respect to the Meadowlands Complex and the Authority’s
operations, as described below, with such variations as shall reasonably be
required to conform with customary insurance practice.


 


(b)                                 The Authority shall
furnish the Developer with satisfactory proof that it has obtained the
insurance described below from insurance companies or underwriters licensed in
the State of New Jersey.  Except for the
coverages to be maintained in connection with subsections (i) and (iii)
below, the Developer shall be named as an additional insured under the policies
listed below.  The Authority shall
furnish to the Developer certificates for such insurance showing the type,
amount and class of operations insured, and the effective and expiration dates
of the policies.  The certificates shall
be submitted promptly upon execution of this Agreement.  Specific reference to this Agreement shall
be made in all policies.  All insurance
certificates provided by the Authority hereunder shall stipulate that the
insurance will not be changed or cancelled without giving at least sixty (60)
days’ prior written notice to the Developer by certified mail or other
commercially acceptable means that provides a receipt as evidence of delivery.


 


(i)                                     The Authority will maintain, at its expense,
commercial property insurance including boiler and machinery coverage on all of
its owned buildings and contents as well as on property of others that its
contractually obligated to insure. The limits of insurance will be in an amount
equal to the replacement value of the buildings and contents owned and the
property of others but not greater than $500,000,000. The amount of the
deductible maintained, if any, will be based on the impact the deductible has
on the insurance premium.  The insurance
policy will be issued by an insurance company that has an A rating by AM Best.


 


(ii)                                  The Authority will maintain, at its expense,
commercial general liability and automobile Insurance in limits of $1,000,000
combined single limits for primary exposures and $100,000,000 in excess of the
primary policy. The amount of the deductible maintained, if any, will be based
on the impact the deductible has on the insurance premium. The insurance policy
will be issued by an insurance company that has an A rating by AM Best.  Developer shall be named by
endorsement as an additional insured in these policies with respect to
occurrences arising from the Authority’s operations at the Sports Complex that
are not within the Project Site.


 


86

















 


(iii)                               The Authority, at its option, will either
maintain workmen’s compensation insurance, in statutory limits, or self insure
for workmen’s compensation exposures with a retention not greater than
$500,000.  Excess workers compensation
insurance will be obtained for exposures in excess of the retention.


 


SECTION 17.6.  Developer Indemnification.  (a) Indemnification by Developer.  The Developer (or the applicable Component
Entity, as the case may be) covenants and agrees, at its sole expense, to
indemnify, protect, defend and hold the Authority Indemnified Parties harmless
from and against all direct and actual (but not arising out of the negligence or
misconduct of the Authority or any Authority Indemnified Party), liability,
losses, damages, demands, costs, claims, actions, or expenses (including
attorneys’ fees and court costs) arising out of, directly resulting in the
failure to perform its obligations under or breach of the terms of Sections
3.7, 4.2, 5.3, 10.1, 10.3, 11.11, and 16.1 and Article 20 of this
Agreement (each constituting a breach of “Developer Indemnified Claim”).


 


(b)                                 Implementation of
Developer Indemnification Obligations. 
In any situation in which the Authority Indemnified Parties are entitled
to receive and desire defense and/or indemnification by the Developer (or the
applicable Component Entity, as the case may be) for a Developer Indemnified
Claim, the Authority Indemnified Parties shall give prompt notice of such
Developer Indemnified Claim to the Developer (or the applicable Component
Entity, as the case may be).  Failure to
give prompt notice to the Developer (or the applicable Component Entity, as the
case may be) shall not relieve the Developer (or the applicable Component
Entity, as the case may be) of any liability to indemnify the Authority
Indemnified Parties, unless such failure to give prompt notice materially
impairs the Developer’s (or the applicable Component Entity, as the case may
be) ability to defend or materially increases cost due to such delay.  Upon receipt of such notice, the Developer
(or the applicable Component Entity, as the case may be) shall resist and
defend any action or proceeding arising out of any Developer Indemnified Claim
on behalf of the Authority Indemnified Parties, including the employment of a
counsel reasonably acceptable to the Authority Indemnified Parties, and the
payment of all expenses incurred by the Developer (or the applicable Component
Entity, as the case may be) in connection therewith.  The Developer (or the applicable Component Entity, as the case
may be) shall have the right to negotiate and consent to settlement of any
Developer Indemnified Claim, subject to Approval of the Authority.  All of the Authority Indemnified Parties
shall have the right to employ separate counsel in any action arising out of
any Developer Indemnified Claim and to participate in the defense thereof, but
the fees and expenses of such separate counsel shall be at the expense of the
Indemnified Party unless the employment of such counsel is specifically
authorized by the Developer (or the applicable Component Entity, as the case
may be), which authorization may be withheld in the Developer’s reasonable discretion.  The Developer (or the applicable Component
Entity, as the case may be) shall not be liable for any settlement of any such
action effected without its consent, but if settled with the consent of the
Developer (or the applicable Component Entity, as the case may be) or if there
is a final judgment against the Developer (or the applicable Component Entity,
as the case may be) in any such action, the Developer (or the applicable
Component Entity, as the case may be) agrees to defend, indemnify and hold
harmless the Authority Indemnified Parties from and against any loss or
liability by reason of settlement or judgment of a Developer Indemnified Claim.


 


87

















 


(c)                                  Survival.  This indemnity by the Developer shall
survive the expiration or termination of this Agreement and Completion of the
Project.


 


(d)                                 Limitation.  Notwithstanding anything herein to the
contrary, the duty of the Developer hereunder to pay any Developer Indemnified
Claim shall be reduced by the amount the Authority recovers from any third
party regarding such Developer Indemnified Claim.


 


SECTION 17.7.  Authority Indemnification.  (a) Indemnification by Authority.  Authority covenants and agrees, at its sole
expense, to indemnify, protect and hold the Developer Indemnified Parties
(which shall also include any Component Entity which has executed a Component
Lease and Component Agreement) harmless from and against all direct and actual
(but not arising out of the negligence or misconduct of the Developer or any
Developer Indemnified Party), liability, losses, damages, demands, costs,
claims, actions or expenses (including attorneys’ fees and court costs) arising
out of, directly resulting from the Authority’s actions or inactions with
respect to perform any of its obligations under or breach of the terms of Sections
3.7, 4.2, 5.3, 10.1, 10.3, 11.11 and 16.2 and Article 20 of this
Agreement (each constituting an “Authority Indemnified Claim”).


 


(b)                                 Implementation of
Authority Indemnification Obligations. 
In any situation in which the Developer Indemnified Parties are entitled
to receive and desire defense and/or indemnification by the Authority for an
Authority Indemnified Claim, the Developer Indemnified Parties shall give
prompt notice of such Authority Indemnified Claim to Authority.  Failure to give prompt notice to Authority
shall not relieve the Authority of any liability to indemnify the Developer
Indemnified Parties, unless such failure to give prompt notice materially
impairs Authority’s ability to defend. 
Upon receipt of such notice, the Authority shall resist and defend any
action or proceeding arising out of any Developer Indemnified Claim on behalf
of the Developer Indemnified Parties, including the employment of counsel
reasonably acceptable to the Developer Indemnified Parties, the payment of all
expenses and the right to negotiate and consent to settlement of any Authority
Indemnified Claim.  All of the Developer
Indemnified Parties shall have the right to employ separate counsel in any
action arising out of any Developer Indemnified Claim and to participate in the
defense thereof, but the fees and expenses of such separate counsel shall be at
the expense of the indemnified party unless the employment of such counsel is
specifically authorized by the Authority, which authorization shall not be
unreasonably withheld or delayed.  The
Authority shall not be liable for any settlement of any such action effected
without its consent, but if settled with the consent of Authority or if there
is a final judgment against Authority in any such action, Authority agrees to
defend, indemnify and hold harmless the Developer Indemnified Parties from and
against any loss or liability by reason of such settlement or judgment of an
Authority Indemnified Claim.


 


(c)                                  Survival.  This indemnity by the Authority shall
survive the expiration or termination of this Agreement and Completion of the
Project.


 


(d)                                 Limitation.
Notwithstanding anything herein to the contrary, the duty of the Authority
hereunder to pay any Authority Indemnified Claim shall be reduced by the amount
that the Developer recovers from any third party regarding such Authority
Indemnified Claim,


 


88

















 


and shall be payable only from the Development Rights Fee, the Ground
Rent or Developer PILOT Payments.


 


ARTICLE 18


EVENTS OF DEFAULT AND REMEDIES


 


SECTION 18.1.  Events of Default By Developer.  Any one or more of the following shall
constitute a “Developer Event of Default” hereunder, unless such event
results from the occurrence of a Force Majeure Event:


 


(i)                                     Breach of
Covenant.  Failure of Developer to
observe and perform any material covenant, condition or agreement in this
Agreement or any Project Agreement (including without limitation, the Right of
Entry Agreement) and continuance of such failure for a period of thirty (30)
days, after receipt by Developer of written notice from the Authority
specifying the nature of such failure and requesting that such failure be
remedied; provided, however, if the breach of any such covenant, condition or
agreement is one that cannot be substantially remedied within the thirty (30)
days after such written notice has been given, it shall not be an Event of
Default as long as Developer is proceeding with due diligence to remedy the
same as soon as practicable.


 


(ii)                                  Insolvency.


 


(A)                              Developer shall have
applied for or consented to the appointment of a custodian, receiver, trustee
or liquidator of all or a substantial part of its assets;


 


(B)                                a custodian shall have been
legally appointed with or without consent of the Authority;


 


(C)                                Developer shall have
made a general assignment for the benefit of creditors, or shall have filed a
voluntary petition in bankruptcy or a petition or an answer seeking an
arrangement with creditors or has taken advantage of any insolvency law;


 


(D)                               Developer shall have
filed an answer admitting the material allegations of a petition in any
bankruptcy or insolvency proceeding;


 


(E)                                 Developer shall take
any action for the purpose of affecting any of the foregoing;


 


(F)                                 a petition in
bankruptcy shall have been filed against Developer and shall not have been
dismissed for a period of ninety (90) consecutive days;


 


(G)                                an order for relief
shall have been entered with respect to or for the benefit of Developer under
the Bankruptcy Code; or


 


(H)                               an order, judgment or
decree shall have been entered, without the application, approval or consent of
subject party by any court of competent


 


89

















 


jurisdiction appointing a receiver, trustee, custodian or liquidator of
Developer or a substantial part of its assets and such order, judgment or
decree shall have continued unstayed and in effect for any period of ninety
(90) consecutive days.


 


(iii)                               Liens; Assessments.  Subject to the Developer’s right of offset,
as provided in Section 3.3 and Section 5.3(b) hereof,
Developer shall fail to pay any Developer PILOT Payments when due, or shall
place thereon any encumbrance or lien unauthorized by this Agreement, or shall
suffer any levy or attachment to be made, or any materialmen’s or mechanics’
lien, or any other unauthorized encumbrance or lien to attach (other than a
Permitted Lien or Project Indebtedness) and such encumbrance or lien is not
removed, insured over, bonded or discharged or other provision reasonably
satisfactory to the Authority made for such payment, removal, or discharge,
within sixty (60) days after written demand by the Authority to do so.


 


(iv)                              Fraud, Willful
Misconduct.  A final, non-appealable
decision or other determination by a court of competent jurisdiction that
Developer, a partner of Developer or an Affiliate of either, has engaged in
fraud in the inducement of this Agreement, the Ground Lease and/or any Project
Agreement, or willful misconduct with respect to the Project and such
determination results in a Material Adverse Effect to the Authority.


 


(v)                                 To the extent that the
Developer has been released from further obligations under the Ground Lease by
reason of the assignment and assumption of the Developer’s obligations
hereunder pursuant to the terms of a Component Agreement and Component Lease by
a Component Entity, the Authority shall look solely to the performance of the
Component Entity for performance of the duties and obligations set forth in
this Agreement with respect to the Component that is the subject of such
Component Agreement and Component Lease arising after the effective date of the
Component Agreement.  As such, the
occurrence of an “event of default” under a Component Agreement and a Component
Lease shall (1) have no effect on the rights or obligations of the Developer
under the terms of this Agreement or the Ground Lease with respect to those
Components that have not been released, and (2) shall not constitute a Developer
Event of Default hereunder, and the occurrence of a Developer Event of Default
under this Agreement or an “event of default” under the Ground Lease with
respect to those Components that have not been released shall have no effect on
the rights or obligations of the other Component Entities under the terms of
their respective Component Agreements and Component Leases and shall not
constitute an event of default thereunder.


 


SECTION 18.2.  Events of Default by Authority.  Any one or more of the following shall
constitute an “Authority Event of Default” hereunder, unless such event results
from the occurrence of a Force Majeure Event:


 


(i)                                     Breach of
Covenant. Failure of Authority to observe and perform any material
covenant, condition or agreement in this Agreement or any Project Agreement and
(i) continuance of such failure for a period of thirty (30) days, after receipt
by Authority of written notice from the Developer specifying the nature of such
failure and requesting that such failure be remedied; provided  however,
if the breach of any such covenant, condition or agreement is one that cannot
be completely remedied within the thirty (30) days after such


 


90

















 


written notice has been given, it shall not be an Event of Default as
long as Authority is proceeding with due diligence to remedy the same as soon
as practicable.


 


(ii)                                  Failure to Deliver
Approval.  Failure by the Authority
to deliver any consent or Approval required to be delivered by the Authority
within the time frame specified in this Agreement or any Project Agreement, and
such failure shall continue for a period of fifteen (15) days after written
notice from the Developer.  The
Developer shall be precluded from sending any notice of an Authority Event of
Default resulting from failure by the Authority to deliver any consent or
Approval required to be delivered, as provided above, until the Developer has
provided a written notice (a “Caution Notice”) to the Authority
cautioning that the Authority’s failure to deliver the required consent or
Approval will result in the occurrence of an Authority Event of Default.  Such Caution Notice shall provide the date
by which such consent or Approval shall be delivered (which shall not be less
than five (5) but more than ten (10) days following the date of such Caution
Notice) by the Authority in order to avoid the occurrence of an Authority Event
of Default described in this Section 18.2(ii).


 


(iii)                               Insolvency.


 


(A)                              the Authority shall have
applied for or consented to the appointment of a custodian, receiver, trustee
or liquidator of all or a substantial part of its assets under the applicable
provisions of the Bankruptcy Code or is unable to meet its financial
obligations, as they become due;


 


(B)                                a custodian shall have
been legally appointed with or without consent of the Developer;


 


(C)                                Authority shall have
made a general assignment for the benefit of creditors, or shall have filed a
voluntary petition in bankruptcy or a petition or an answer seeking an
arrangement with creditors or has taken advantage of any insolvency law;


 


(D)                               the Authority shall have
filed an answer admitting the material allegations of a petition in any
bankruptcy or insolvency proceeding;


 


(E)                                 the Authority shall
take any action for the purpose of affecting any of the foregoing;


 


(F)                                 a petition in
bankruptcy shall have been filed against the Authority and shall not have been
dismissed for a period of ninety (90) consecutive days;


 


(G)                                an order for relief
shall have been entered with respect to or for the benefit of the Authority
under the Bankruptcy Code; or


 


(H)                               an order, judgment or
decree shall have been entered, without the application, approval or consent of
subject party by any court of competent jurisdiction appointing a receiver,
trustee, custodian or liquidator of the Authority or a substantial


 


91

















 


part of its assets and such order, judgment or decree shall have
continued unstayed and in effect for any period of ninety (90) consecutive days.


 


(iv)                              Fraud, Willful
Misconduct.  A final, non-appealable
decision or other determination by a court of competent jurisdiction that the
Authority or any Authority Indemnified Party has engaged in fraud in the
inducement of this Agreement, the Ground Lease and/or any Project Agreement, or
willful misconduct and such determination results in a Material Adverse Effect
to the Project.


 


SECTION 18.3.  Force Majeure Events.  Notice by the Party claiming the occurrence
of a Force Majeure Event shall be sent to the other Party in accordance with
the terms hereof as soon as commercially practicable after actual notice of
such occurrence has been received by the Party claiming the occurrence of such
Force Majeure Event, and the failure to deliver such notice by either Party in
accordance with the terms hereof shall constitute a waiver of the Force Majeure
Event.  During any Force Majeure Event
that affects the Project (or any Component thereof) or the performance of any
material obligation under this Agreement, the Parties shall continue to perform
their respective obligations with respect to the unaffected portions of the
Project and/or Components thereof. 
Notwithstanding the foregoing, the unavailability of funds for payment
of the costs of the Project shall not constitute a Force Majeure Event.  The existence of a Force Majeure Event shall
not prevent a Party from declaring the occurrence of an Event of Default by the
Party relying on such Force Majeure Event provided that the event that is the
basis of the Event of Default is not a result of the Force Majeure Event.


 


SECTION 18.4.  Limited Remedies of Authority Upon
Developer Event of Default. 
Subject to the provisions of Section 8.2 hereof relating to
termination of this Agreement prior to the Ground Lease Closing Date and
subject to the provisions of Section 18.6 hereof, the Authority may
pursue all remedies at law or in equity upon the occurrence of a Developer
Event of Default including, without limitation, termination of this Agreement.


 


SECTION 18.5.  Limited Remedies of Developer Upon
Authority Event of Default. 
Subject to the provisions of Section 18.6 hereof, the
Developer may pursue all remedies at law or in equity upon the occurrence of an
Authority Event of Default including, without limitation, termination of this
Agreement.


 


SECTION 18.6.  Limitation on Damages.  (a) Notwithstanding the provisions of this Article 18
to the contrary, the liability of the Developer (as a result of the occurrence
of a Developer Event of Default) and/or the liability of the Authority (as a
result of the occurrence of an Authority Event of Default) shall be limited to
the actual damages incurred by the non-defaulting Party and in no event shall
the defaulting Party be liable to the non-defaulting Party for economic or consequential
damages.  In furtherance of the
foregoing, the non-defaulting Party shall execute a written release evidencing
such Party’s release of the non-defaulting Party for any and all claims for
economic or consequential damages.


 


(b)                                 Notwithstanding anything
contained in this Agreement to the contrary, neither the partners, members nor
officers, directors or employees (disclosed or undisclosed) of the Developer
shall be liable or responsible for payment of moneys, liabilities or
obligations due


 


92

















 


to the Authority under this Agreement and the Authority shall look
solely to the assets of the Developer for satisfaction of any remedy provided
under this Agreement or for payments of any amounts due as a result of the
occurrence of a Developer Event of Default.


 


(c)                                  Notwithstanding
anything contained in this Agreement to the contrary, neither the partners nor
officers, directors or employees of the Authority shall be liable or
responsible for payment of moneys due to the Developer under this Agreement and
the Developer shall look solely to the assets of the Authority for satisfaction
of any remedy provided under this Agreement or for payments of any amounts due
as a result of the occurrence of an Authority Event of Default.


 


SECTION 18.7.  Failure or Delay.  Except as otherwise expressly provided in
this Agreement, any failure or delay by either Party in asserting any of its
rights or remedies as to any default, shall not operate as a waiver of any
default, or of any such rights or remedies, or deprive either such Party of its
right to institute and maintain any actions or proceedings that it may deem
necessary to protect, assert or enforce any such rights or remedies.


 


SECTION 18.8.  Remedies Cumulative.  Except as expressly provided herein to the
contrary, (i) no remedy conferred by any of the provisions of this Agreement is
intended to be exclusive of any other remedy and each and every remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or
now or hereafter existing at law or in equity or by statute or otherwise, and
(ii) the election of any one or more remedies shall not constitute a waiver of
the right to pursue other available remedies.


 


ARTICLE 19


MINORITY PARTICIPATION;


NON-DISCRIMINATION; DISCLOSURES


 


SECTION 19.1  Developer Affirmative Action Obligations.  With respect to affirmative action,
Developer shall use diligent and commercially reasonable efforts to comply with
all terms and conditions imposed on the Project by State law, with the
Authority being a third party beneficiary thereof with full rights of
enforcement.  The Developer shall submit
to the Authority for its review a plan for the engagement or retention of
businesses owned and operated by persons of African-American, Latino or Asian
descent and businesses owned and operated by women.  Such plan shall be submitted concurrently with (but not as part
of) the Master Plan.


 


SECTION 19.2.  Non-Discrimination.  To the extent that the provisions of
N.J.S.A. 10:2-1 through 10:2-4 and the rules and regulations promulgated
pursuant thereto are applicable to the Project, the Parties hereby agree to
endeavor in good faith to voluntarily make such provisions a part of this
Agreement, with such provisions to be binding upon the Parties and included in
the Declaration.  In furtherance of the
foregoing, neither Party shall discriminate against or segregate any person, or
group of persons, on account of race, color, religion, creed, national origin,
ancestry, physical handicap, age, marital status, sex, affectional or sexual
orientation in the sale, lease, sublease, rental, transfer, use, occupancy,
tenure or enjoyment of the Project Site. 
In addition, neither Party, nor any person claiming under or through
Developer or the Authority, shall establish or permit such practice or
practices of discrimination or


 


93

















 


segregation with reference to the selection, location, number, use of
occupancy of tenants, lessees, subtenants, sub lessees, or vendees on the
Project Site.


 


SECTION 19.3.  Prevailing Wages.  Except as otherwise provided in any Project
Labor Agreement executed by the Developer with respect to the Project, and
notwithstanding any inapplicability to the Project, as a matter of law, of the
provisions of the New Jersey Prevailing Wage Act, N.J.S.A. 34:11-56.25 et seq.,
the Parties hereby agree to voluntarily make such provisions a part of this
Agreement, with such provisions to be binding upon the parties and included in
the Declaration.  Developer represents
and warrants to Authority that neither Developer, nor, to its best knowledge,
any Project Contractor or Project Professional, is on record with the New
Jersey Office of the Commissioner of the Department of Labor as having failed
to pay prevailing wages in accordance with the New Jersey Prevailing Wage Act.


 


SECTION 19.4.  Additional Disclosures.  On the Effective Date, Developer, Mills and
Mack-Cali shall each shall execute and deliver to the Authority the following
acknowledgments; (a) Moral Integrity Affidavit; the form of which is attached
hereto as Schedule 19.4-1; (b) Stockholder Disclosure Form, the
form of which is attached hereto as Schedule 19.4-2; and (c)
Stockholder Disclosure Form B, the form of which is attached hereto as Schedule 19.4-3.


 


ARTICLE 20


PUBLICITY; PROMOTIONAL MATERIALS;


PROJECT MARKETING PLANS; SIGNAGE


 


SECTION 20.1.  Publicity; Promotional Materials.  (a) Promotional Materials.  The Parties shall mutually agree as to the
protocols to be followed with respect to any public announcements, press
releases, advertising, marketing materials or promotional materials
(collectively, the “Promotional Materials”) regarding the Project.  Such protocols shall recognize and balance
the respective prerogatives of the Parties and the respective obligations of
the Parties to comply with differing Legal Requirements, as well as the need
for the Developer to promote a lease, manage, operate and finance the Project
(or any Component).


 


(b)                                 Cooperation.  The Parties shall undertake good faith
efforts and endeavor to use commercially reasonable efforts to consult,
cooperate, and coordinate their activities with respect to publicity and
distribution of Promotional Materials with respect to the Project.


 


SECTION 20.2.  Signage, Advertising and Marketing Rights.  (a) The Parties acknowledge and recognize
the importance of signage, advertising and Promotional Materials to the
economic and operational success of the Project and the Authority’s operation
of the Sports Complex.  Further, the
Parties agree that without cooperation, coordination and a mutual understanding
of the policies, prerogatives and competitive issues involved, each Party will
likely suffer harm (economic or otherwise) and/or the loss of competitive
market and other economic benefits.


 


(b)                                 As such, the Parties
shall exercise their respective diligent and commercially reasonable efforts to
negotiate (at the earliest practicable date, but in no event later than the
Material Conditions Termination Date) such mutually acceptable and beneficial
terms


 


94

















 


and conditions relating to Signage, advertising and marketing and such
terms and conditions shall be included in the Project Operating Agreement.


 


(c)                                  The Project Operating
Agreement shall (as to matters of Signage, advertising and marketing) be based
upon the following:


 


(i)                                     The Developer
shall have complete discretion with respect to Signage, tenant identification,
promotion of the Project (or any Component) and similar activities (whether
revenue producing or otherwise), as long as such Signage, etc. is
wholly-contained within the interior of the buildings and structures of the
Project (or any Component thereof).


 


(ii)                                  As part of the Master
Plan process, the Authority and the Developer shall negotiate mutually
acceptable design criteria and aesthetic standards or requirements that will
govern exterior Signage, advertising, tenant identification and other
revenue-producing materials or activities, to the extent displayed on the
exterior of the Project’s buildings or structures, on totem or monument signs,
etc.  Thereafter, as long as the
Developer adheres to such design criteria and aesthetic standards and
requirements, as set forth in the Master Plan, the Developer shall, subject to
the provisions of Section 20.2(c)(iv) below, have the sole and
excusive right to (A) undertake any and all advertising or marketing of any
kind on the Project and/or the Project Site including, without limitation,
advertising and marketing distributed through Signage and any related media
(whether printed, transmitted on a video screen or message board, transmitted
verbally or otherwise, whether presently available or made available in the
future, and (B) grant to Project tenants or other third parties and/or manage
and coordinate the use and distribution of such rights by and among such
Project tenants or other third parties.


 


(iii)                               Except as provided in Section 20.2(c)(iv)
below, the Developer shall be permitted (with Authority Approval) to negotiate,
execute and perform under any agreements relating to advertising, naming
rights, sponsorships, pouring rights, and other revenue-producing activities as
the Developer may determine.  However,
the Developer shall review and coordinate any such activities with the
Authority so as to minimize or avoid the potential for Developer Interference
and/or Authority Interference.


 


(iv)                              The Developer
acknowledges that the Authority has, prior to the Effective Date, executed
certain Existing Sports Complex Agreements which may provide Signage, marketing
and advertising rights for or with respect to Sports Complex facilities, events
and Sports Complex Tenants.  Subject to Section 6.4
hereof, the Developer’s rights under this Section 20.2 and the
Project Operating Agreement shall be subject to the rights, duties and
obligations of the Authority and the priority of such Existing Sports Complex
Agreements in effect as of the Effective Date over the rights of the
Developer.  The provisions of Section 3.7
hereof shall govern the rights of the Parties during the period from the
Effective Date to the date that the Project Operating Agreement is executed and
effective.  Thereafter, the rights and
obligations of the Parties shall be governed by the Project Operating Agreement.


 


SECTION 20.3.  Intellectual Property.  (a) Developer, the Project Professionals,
and the Project Contractors shall not acquire any right or interest to
proprietary materials or


 


95

















 


intellectual property owned or used by the Authority, the Sports
Complex Users, or the Authority’s Construction Representative, including but
not limited to their respective trademarks and trade names.


 


(b)                                 Neither the Authority
nor the Authority Indemnified Parties shall acquire any right or interest in
proprietary materials or intellectual property owned or used by the Developer
or the Developer’s Project Professionals or Project Contractors, including but
not limited to trademarks and trade names.


 


ARTICLE 21


ARBITRATION


 


SECTION 21.1.  Scope.  Notwithstanding anything to the contrary
elsewhere in this Agreement, the alternative dispute resolution processes
provided for in this Article 21 (“Project Arbitration”)
shall be the exclusive means for resolution of disputes arising under, relating
to, or touching upon this Agreement and Project Documents that contain this
project arbitration provision (“Project Arbitration Provision”), the
interpretation thereof, or the performance or breach by any party thereto,
including but not limited to original disputes as well as all disputes asserted
as cross claims, counterclaims, third party claims, or claims for indemnity or
subrogation, in any threatened or ongoing court litigation with third parties,
if such disputes involve parties to contracts containing this Project
Arbitration Provision (collectively “Arbitration Claims”, individually an “Arbitration
Claim”); provided  however, that these Project Arbitration
processes shall not apply to (a) any dispute that involves an Arbitration Claim
exceeding $5,000,000.00, exclusive of interest, fees and costs; (b) any
Arbitration Claim arising or relating to any matter asserted as an issue in any
Project Litigation; (c) any Arbitration Claim relating to a breach of the use
restrictions provided in this Agreement, the Ground Lease or Declaration or (d)
any Environmental Claim.  In such event,
the Parties shall be free to pursue all available actions at law or in equity
in the Superior Court of New Jersey, subject to the restrictions and limitations
provided herein.


 


SECTION 21.2.  Arbitration Procedures.  (a) Demand for Arbitration.  Notice of a demand for arbitration of any
Arbitration Claim by one Party shall be filed in writing with the other Party.


 


(b)                                 Selection of
Arbitrator.  The arbitration shall
be conducted by a single arbitrator, selected as follows:   Within ten (10) days of receipt of a demand
for arbitration, the parties shall exchange a list of five (5) proposed
arbitrators, ranked in order of preference, all of whom shall be either a
former judge of the New Jersey Superior Court, Appellate Division or a former
justice of the New Jersey Supreme Court. 
The Parties shall select the highest ranked arbitrator from the names
common to the lists of the Parties.  If
no common names exist, the parties shall exchange a further list of five (5)
ranked proposed arbitrators from the same pool of former judges and justices
within ten (10) days until the parties agree upon an arbitrator (the
“Arbitrator”).


 


(c)                                  Rules.  The Arbitrator will conduct the hearing
pursuant to the rules and procedures of the American Arbitration Association,
then in effect.


 


96

















 


(d)                                 Discovery.  The Arbitrator shall determine the nature
and scope of discovery, if any.  No discovery
may be had of privileged materials or information.  The Arbitrator upon proper application shall issue such orders as
may be necessary and permissible under law to protect confidential, proprietary
or sensitive materials or information from public disclosure or other
misuse.  Either Party may make
application to the Superior Court of the State of New Jersey to have a
protective order entered as may be appropriate to confirm such order of the
Arbitrator.


 


(e)                                  Hearing.  The Parties have structured this procedure
with the goal of providing for the prompt and efficient resolution of all
disputes falling within the purview of this Article.  To that end, either Party can petition the Arbitrator for an
expedited hearing if circumstances justify it. 
In any event, the hearing of any dispute not expedited will commence as
soon as practicable, but in no event later than thirty (30) days after
selection of the Arbitrator.  This
deadline can be extended only with the consent of the Parties to the dispute,
or by decision of the Arbitrator upon a showing of emergency
circumstances.  The hearing, once
commenced, will proceed from Business Day to Business Day until concluded.


 


(f)                                    Award.  The Arbitrator shall, within fifteen (15)
days from the conclusion of any hearing, issue his or her award.  Any award providing for deferred payment
shall include interest at a reasonable rate. 
The award is to be rendered in accordance with the Project Agreements
and State law.


 


(g)                                 Scope of Award.  The Arbitrator shall be without authority to
award punitive damages, and any such punitive damage award shall be void.  The Arbitrator shall also be without
authority to issue an award against any individual party in excess of
$5,000,000, exclusive of interest, arbitration fees, costs and attorneys’ fees,
attributable to any Arbitration Claim by or against the Project Architect or
Project Contractor, and any such award shall be void.  If an award is made against any party in excess of $200,000,
exclusive of interest, arbitration fees, costs and attorneys’ fees, it must be
supported by written findings of fact, conclusions of law and a statement as to
how damages were calculated.


 


(h)                                 Jurisdiction.  The Arbitrator shall not be bound for
jurisdictional purposes by the amount asserted in either Party’s Arbitration
Claim, but shall conduct a preliminary hearing into the question of
jurisdiction upon application of either Party at the earliest convenient time,
but not later than the commencement of the arbitration hearing.


 


(i)                                     Entry of
Judgment.  Either Party can make
application to the New Jersey Superior Court for confirmation of an award, and
for entry of judgment on it.  Payment of
such judgment shall be made following receipt of a final non-appealable
decision or order of the Court’s decision or order.


 


(j)                                     Severance and
Joinder.  To reduce the possibility
of inconsistent adjudication, (i) an identical Project Arbitration Provision
must be included in all Project Documents, (ii) at the request of either Party,
the Arbitrator may join and/or sever any party or parties, and consolidate or
sever claims arising under other contracts containing this Project


 


97

















 


Arbitration Provision and (iii) the Arbitrator may, on his own
authority, join or sever parties and claims subject to this Project Arbitration
process as he deems necessary for a just resolution of the dispute, consistent
with the Parties’ goal of the prompt and efficient resolution of disputes.  Nothing herein shall create the right by
either Party to assert claims against another party not recognized under the
substantive law applicable to the dispute. 
The Arbitrator is not authorized to join to the proceeding parties not
in privity with the Authority or the Developer.


 


(k)                                  Appeal.  Either Party may appeal (i) errors of law by
the Arbitrator if, but only if, the errors arise in an award in excess of
$200,000, (ii) the exercise by the arbitrator of any powers contrary to or
inconsistent with this Agreement, or (iii) any grounds provided for in N.J.S.A.
2A:24-8.  Appeals shall be to the
Superior Court within fifteen (15) days of entry of the award.  The Superior Court shall have the authority
to confirm, vacate, modify or remand an award appealed under this section.


 


(l)                                     Statutory
Arbitration Provisions.  Except as
otherwise provided herein, arbitration pursued under this provision shall be
governed by N.J.S.A. 2A:24-1 et  seq.


 


SECTION 21.3.  Fees and Costs.  All fees and costs associated with any
arbitration pursuant to this Article 21, including without
limitation the Arbitrator’s fees, and the prevailing Party’s reasonable
attorneys’ fees, expert witness fees and costs, will be paid by the
non-prevailing Party.  The determination
of prevailing party and non-prevailing Party, and the appropriate allocation of
fees and costs, will be included in the award by the Arbitrator.


 


SECTION 21.4.  Confidentiality.  Any proceeding initiated under this Article 21
shall be deemed confidential to the maximum extent allowed by New Jersey law
and no party shall make any disclosure related to the disputed matter or the
outcome of any proceeding except to the extent required to seek interim
equitable relief or to enforce an agreement reached or award made hereunder.


 


ARTICLE 22


MISCELLANEOUS


 


SECTION 22.1.  Cooperation, Assurances, Estoppel
Agreements, etc.  The
Authority and Developer have executed this Agreement to set forth their basic
agreements as to the rights, restrictions, procedures and principles that will
govern the development of the Project. 
As a result the Authority and the Developer understand that the Parties
shall be required to agree to and work-out additional details and agreements in
good faith and using their commercially reasonable efforts following the
Effective Date. The Developer and the Authority agree to take such actions,
including the execution and delivery of such documents and instruments as shall
become necessary or appropriate to carry out the terms, provisions and intent
of this Agreement.  The Authority
further understands and acknowledges that in order for the Developer to obtain
Project financing that the lending institutions and/or public or private
capital markets may require certain additional agreements with the Authority
and Developer (or Component Entity, as the case may be) to enable Developer (or
Component Entity, as the case may be) to obtain the necessary financing.
Understanding that the basic agreements, rights, restrictions, procedures and
principles that govern the development of the Project will not be materially modified
as a result,


 


98

















 


the Authority will cooperate with Developer (or Component Entity, as
the case may be) and its Project Lenders to put into effect changes and
modifications to this Agreement and enter into additional agreements and
understandings reasonably necessary to enable Developer (or Component Entity,
as the case may be) to obtain Project financing from designated lenders and
carry out the intent of this Agreement. Such agreements and instruments may
include, but not be limited to, tri-party agreements, estoppels,
non-disturbance agreements, attornment agreements, certifications and the like,
all of which shall be reasonably acceptable to the Authority and the Developer
(or Component Entity, as the case may be). 
Whenever this Agreement provides for the approval or consent of the
Authority or the Developer, or any matter is to be to the Authority’s or
Developer’s satisfaction or discretion, unless specifically stated to the
contrary, such approval, consent or satisfaction shall be made, given or
determined in the reasonable discretion of the Party whose approval, consent or
satisfaction is required or called for hereunder.  The Party acting for the Authority or Developer or the persons
designated by the Authority or Developer to so act on its or their behalf in
making all approvals, consents or determinations shall evidence such authority
as the Parties shall reasonably request. 
Notwithstanding the foregoing, neither of the Parties shall have any obligations
to enter into any agreement, including without limitation the modification of
any existing agreement, that shall materially diminish the rights, increase the
obligations or alter the reasonable commercial expectations of the Parties.


 


SECTION 22.2.  Invalidity.  If any term or provision of this Agreement
shall to any extent or for any reason be held invalid, illegal or
unenforceable, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement, but the remainder of this Agreement and
each term and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law, subject to such modification hereof as may be
necessitated by such invalidity.


 


SECTION 22.3.  Legal Requirements; Venue.  This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New Jersey,
without regard to principles of conflicts of law.  New Jersey shall be the venue for resolution of any disputes that
are not resolved pursuant to Article 21 hereof, without regard to
principles of federal or State jurisdiction.


 


SECTION 22.4  Notices.  Any notice, report, demand, request or other
instrument or communication authorized, required or desired to be given under
this Agreement by Developer or the Authority shall be in writing and shall be
deemed given if addressed to the party intended to receive the same, at the
address of such party set forth below, when delivered at such address by hand
or by overnight delivery service, or three (3) days after the same is deposited
in the United States mail as first class certified mail, return receipt
requested, postage paid, whether or not the same actually shall have been
received by such party:


 


If to Developer:


 


Meadowlands Mills/Mack-Cali Limited Partnership


c/o The Mills Corporation


1300 Wilson Blvd., Suite 400


Arlington, VA 22209


 


Attn.: Kenneth R. Parent, Chief Operating Officer


 


99

















 


 


 


With a copy to:


 


Mack-Cali Meadowlands Corporation


c/o Mack-Cali Realty Corporation


11 Commerce Drive


Cranford, NJ 07016


Attn: Mitchell Hersh, President and Chief Executive Officer


 


and


 


DeCotiis, FitzPatrick, Cole & Wisler, LLP


Glenpointe Centre West


500 Frank W. Burr Blvd.


Teaneck, NJ 07666


Attention: M. Robert DeCotiis, Esq. and Eric D. Wisler, Esq.


 


If to the Authority:


 


New Jersey Sports and Exposition Authority


Meadowlands Sports Complex


50 State Route 120


East Rutherford, NJ 07073


Attn.: President


 


With a copy to:


 


Windels Marx Lane & Mittendorf, LLP


120 Albany Street Plaza


Suite 600


New Brunswick, NJ 08901


Attn.:  Karl Piirimae, Esquire


 


SECTION 22.5.  Notice Address.  Either Party may change the address to which
any such notice, report, demand, request or other instrument or communication
to such Party is to be delivered or mailed, by giving written notice of such
change to the other Parties, but no such notice of change shall be effective
unless and until received by such other Parties.  No such notice, report, demand, request or other instrument or
communication given hereunder shall be invalidated or rendered ineffective due
to any failure to give, or delay in giving, a copy of such notice, report,
demand, request or other instrument or communication to any Party to whom such
copy is to be given as provided above.


 


SECTION 22.6.  Calculation of Time.  In computing any period of time prescribed
by or allowed by any provisions of this Agreement, the day of the act, event or
default from which the designated period of time begins to run shall not be
included, provided  however, that when


 


100

















 


any period of time so stated would end on a Saturday, Sunday or legal
holiday, such period shall be deemed to end on the next day following which is
not a Saturday, Sunday or legal holiday. 
Unless otherwise stated herein, all notices and other periods shall
expire as of 5:00 p.m. local time in East Rutherford, New Jersey on the last
day of the notice or other period.


 


SECTION 22.7.  Expenses.  Whether or not the transaction contemplated
by this Agreement is consummated, unless otherwise provided by the terms of
this Agreement, each Party shall pay its own expenses incident to the
preparation and performance of this Agreement, including, without limitation,
attorneys’ fees.


 


SECTION 22.8.  Waivers; Extensions.  No waiver of any breach of any agreement or
provision herein contained shall be deemed a waiver of any preceding or
succeeding breach thereof or of any other agreement or provision herein
contained.  No extension of time for the
performance of any obligation or act shall be deemed an extension of time for
the performance of any other obligation or act.


 


SECTION 22.9.  Counterparts; Captions; Context.  This Agreement may be executed in
counterparts, each of which shall be deemed an original.  This Agreement shall not be binding or
effective until duly executed by the Authority and Developer.  The captions are for convenience of reference
only and shall not affect the construction to be given to any of the provisions
hereof.  Where the context shall
indicate or require: (i) all references to singular nouns or pronouns shall
include the plural, and vice versa; (ii) the masculine shall include the
feminine, and the neuter, and vice versa; and (iii) all pronouns shall be
deemed modified to reflect the correct gender where so required.


 


SECTION 22.10.  Entire Agreement, Modifications.  This Agreement, the Deposit Letter, and the
Access and Indemnity Agreements constitute the entire contract between the
Parties hereto with respect to the Project and the subject matter hereof and
supersedes any and all prior negotiations, agreements and understandings,
written or oral, formal or informal, all of which are deemed to be merged
herein.  No provision of this Agreement
be supplemented, terminated, modified or waived except by a writing signed by
both Parties.  No modification or
amendment to this Agreement of any kind whatsoever, shall be made or claimed by
the Authority or Developer, and no notice of any extension, change, modification
or amendment made or claimed by the Authority or Developer shall have any force
or effect whatsoever unless the same shall have been reduced to writing,
approved by the board of directors of the Party (to the extent required by the
constituent documents of a Party) and fully signed by the Authority and
Developer.


 


SECTION 22.11.  Binding Effect.  This Agreement shall be binding upon and
inure to the benefit of the Parties hereto and, to the extent permitted hereby,
their respective heirs, legal representatives, successors and assigns.


 


SECTION 22.12.  No Joint Venture.  Nothing in this Agreement shall be construed
to create a joint venture or partnership between the Authority and Developer.


 


101

















 


SECTION 22.13. Time of
the Essence.  The Parties
acknowledge and agree that time is of the essence as to all of the dates
provided in this Agreement and the Project Schedule.


 


SECTION 22.14.  Negation of Third-Party Beneficiaries.  The provisions of this Agreement are for the
exclusive benefit of the Parties hereto and not for the benefit of any third
person, nor shall this Agreement be deemed to have conferred any rights,
express or implied, upon any third person.


 


 


[Signature Page to Follow]


 


102

















 


IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the date first written above (“Effective Date”).


 


	
  NEW JERSEY SPORTS AND

  EXPOSITION AUTHORITY

  	
  MEADOWLANDS MILLS/MACK-CALI

  LIMITED PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Meadowlands Mills Limited Partnership,

  
	
  By:

  	
  /s/ George R. Zoffinger

  	
   

  	
   

  	
  its General Partner

  
	
   

  	
  Name: George R. Zoffinger

  	
   

  	
  By:

  	
  Meadowlands Mills, L.L.C.,

  
	
   

  	
  Title : President

  	
   

  	
  its Majority
  Partner

  
	
   

  	
   

  	
  By:

  	
  The Mills Limited Partnership,

  
	
   

  	
   

  	
  its Manager

  
	
   

  	
   

  	
  By:

  	
  The Mills
  Corporation,

  
	
   

  	
   

  	
  its General
  Partner

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
         /s/
  Laurence C. Siegel

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Laurence C. Siegel

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Chairman, Chief Executive
  Officer

  and President

  
										



 


103

















 


SCHEDULE 1.1


 


DEFINITIONS


 


“Access and Indemnity
Agreements” means (a) that certain Right of Entry Agreement, dated
April 25, 2003 and (b) that certain Right of Entry Agreement dated as of
October 24th, 2003 to be effective as of July 28th,
2003, by and between the Authority and Developer.


 


“Actual Traffic and
Infrastructure Costs” shall have the meaning ascribed to such term in Section 3.3(d)
hereof.


 


“Affiliate” means
with respect to any Person, any other Person directly or indirectly Controlling
or Controlled by, or under direct or indirect common Control with, such Person.


 


“Agreement” means
this Redevelopment Agreement, as the same may be amended or supplemented from
time to time in accordance with its terms.


 


“ALTA Survey”
shall have the meaning ascribed to such term in Section 6.1 hereof.


 


“Approval”, “Approve”
or “Approved” means the written consent, authorization or
acknowledgement to be issued or granted by the Authority or the Developer, as
and to the extent required under the terms of this Agreement, and, unless expressly
noted otherwise, which shall not be unreasonably withheld, conditioned or
delayed.


 


“Approval Notice”
shall have the meaning ascribed to such term in Section 6.2(e)(i)
hereof.


 


“Approved Plans”
shall have the meaning ascribed to such term in Section 11.5
hereof.


 


“Arbitration Claim”
and “Arbitration Claims” are defined in Section 21.1 hereof.


 


“Arbitrator” shall
have the meaning ascribed to such term in Section 21.2(b) hereof.


 


“Arena” is defined
in the third paragraph of the Preamble hereof.


 


“Arena Site” means
that portion of the Project Site upon which the Arena is situated, comprised of
approximately 11 acres of land and as more particularly depicted in Exhibit
“A” hereto.


 


“Authorized
Representative” means an agent of the Authority or the Developer that is
expressly permitted to perform the acts and enter into the agreements on behalf
of the Authority or the Developer, as applicable.


 


“Authority” means
the New Jersey Sports and Exposition Authority and its successors and assigns.


 


“Authority’s Construction
Representative” is defined in Section 11.3 hereof.


 


1

















 


“Authority’s
Environmental Remediation Contribution” means the Authority’s obligation to
pay or reimburse the Developer one hundred percent (100%) of the Incremental
Cost or such other portion of the Incremental Cost as the Parties may mutually
agree.


 


“Authority’s
Environmental Responsibility” means the Release or suspected or threatened
Release of any Hazardous Material (i) occurring prior to, existing on or
originating from the Project Site or the Sports Complex property, as of the
Effective Date and/or (ii) on the Project Site after the Effective Date, except
for Remediation within Developer’s Environmental Responsibility.  Notwithstanding the foregoing, with respect
to Hazardous Material migrating onto the Project Site from property other than
the Sports Complex, the Authority’s Environmental Responsibility shall extend
only to required investigation of such material, including monitoring activities,
together with preparation of any reports, other required documents or any
administrative matter required by applicable Environmental Law.  For purposes of this definition, a
threatened Release shall include, but not be limited to, drums, underground
storage tanks and other containers on the Sports Complex that at one time
contained, contain or are suspected to contain a Hazardous Material from which
an actual Release has not occurred.


 


“Authority Event of
Default” shall have the meaning ascribed to such term in Section 18.2
hereof.


 


“Authority Indemnified
Claim” shall have the meaning ascribed to such term in Section 17.7(a)
hereof.


 


“Authority Indemnified
Parties” means Authority and its officers, board members, agents,
employees, contractors and consultants.


 


“Authority
Interference” shall mean an actual, direct interference by (or on behalf
of) the Authority (or any Sports Complex User) having a material and adverse
impact on any of the following: (i) the Developer’s contractual obligations
under any agreements executed by the Developer (or Component Entity) for or
with respect to the Project (or any Component thereof) and/or the performance
by the Developer of its obligations hereunder or under any of the Project
Documents (or any third-party agreements contemplated by this Agreement,
including but not limited to, under Article 21), (ii) the
construction, use, management or operation of the Project and/or the Project
Site, (iii) the timely delivery of supplies, inventory, food stuffs or any
other item required for the construction, use, management or operation of the
Project and/or the Project Site, or (iv) the right or ability of the Developer
(or Component Entity)  to carry out or
effectuate the transactions contemplated hereunder or under this Agreement or
any of the Project Documents; provided  however, that any such
determination shall be made taking into consideration the construction
activities required to be undertaken in order to carry out the Developer’s
obligations with respect to the construction of the Project (including without
limitation, the presence and operation of construction equipment, lay down
areas and delivery of construction materials).


 


“Authority Profit
Participation” shall have the meaning ascribed to such term in Section 5.4
hereof.


 


2

















 


“Authority Traffic and
Infrastructure Payment Amount” shall have the meaning ascribed to such term
in Section 8.2(b)(xi) hereof.


 


“Bankruptcy Code”
means 11 U.S.C. § 101 et seq., as the same may be amended and
supplemented from time to time.


 


“Baseball Stadium”
shall have the meaning ascribed to such term in Section 3.2(a)(ii) hereof.


 


“Borough” means
the Borough of East Rutherford, a municipal corporation of the State of New
Jersey.


 


“Building Permit(s)”
means the permit(s) issued by the New Jersey Department of Community Affairs
with respect to the Project or any Component (or Phase) thereof, which Building
Permits shall be based upon the Plans and Specifications prepared by the
Developer in support of an application for such Building Permit.


 


“Business Day”
means Monday through Friday, excluding weekends and federal holidays, from the
hours of 9:00 am to 5:00 pm, Eastern Standard Time.


 


“Caution Notice”
shall have the meaning ascribed to such term in Section 18.2(ii)
hereof.


 


“CEA” is defined
in Section 15.3(d) hereof.


 


“CERCLA” means the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended, 42 U.S.C. 9601 et seq.


 


“Certificate of
Completion” shall have the meaning ascribed to such term in Section 9.5(a)
hereof.


 


“Claim” means any
pending or threatened claim, demand, notice, allegation, order, directive,
suit, action, cause of action, judgment, lien, demand for arbitration,
proceeding, or investigation by any Person seeking or asserting Damage against
the Authority or the Developer (or any Affiliate or Component Entity or
predecessor of same).


 


“Commence Construction”
or “Commencement of Construction” means the undertaking by Developer of
any actual physical construction of the Project (or any Component or Phase
thereof) and/or the Traffic and Infrastructure Improvements.


 


“Completion” or “Completed”
means, as to any Component (or Phase or Component Part thereof), that the
requirements set forth in Section 9.5(a) hereof have been
satisfied.


 


“Completion Dates”
means the dates set forth in the Project Schedule by which Certificates of
Occupancy for the applicable Component (or Phase thereof) shall have been
issued, or such later date as shall have been established as a result of an
occurrence of one or more Force Majeure Events.


 


3

















 


“Complex Agreement
Objections” shall have the meaning ascribed to such term in Section 6.4(a)
hereof.


 


“Component” shall
have the meaning ascribed to such term in the Recitals and shall refer to an
element of the Project, such as the Parking Component, the Entertainment/Retail
Component, the Office Component and the Hotel Component, or any Component Part.


 


“Component Agreement”
means each of the separate “redevelopment agreements” executed by the Authority
and a Component Entity setting forth the rights, duties and obligations with
respect to a particular Project Component or Component Part (as opposed to the
Project in its entirety), which Component Agreement shall contain terms and
conditions with respect to the Project Component or Component Part that is the
subject of such Component Agreement which are substantially similar in all
material respects as those contained in this Agreement, taking into
consideration the nature and extent of the applicability to such Component or
Component Part.


 


“Component Entity”
means any Permitted Transferee or Transferee that has executed a Component
Agreement and Component Lease.


 


“Component Interest”
shall have the meaning ascribed to such term in Section 9.4(b)
hereof.


 


“Component Lease”
means each of the separate subleases, condominium unit, air rights agreements,
separate and direct ground leases or other real estate interest acquired by and
entered into by a Component Entity and the Authority (or the Developer and
Transferee, as permitted hereunder) setting forth the rights, duties and
obligations with respect to the particular Project Component Site or Component
Part (as opposed to the Project Site in its entirety) which Component Lease
shall contain terms and conditions with respect to the Project Component Site
or Component Part that is the subject of such Component Lease, which are
substantially similar to those contained in the Ground Lease and Project
Documents, taking into consideration the nature and extent of their
applicability to such Project Component Site or Component Part.


 


“Component Parts”
shall have the meaning ascribed to such term in Section 9.4(a)
hereof.


 


“Component Uses”
means collectively the Entertainment/Retail Uses, Office Component Uses, Hotel
Component Uses and Parking Component Uses.


 


“Conceptual Site Plan”
means the documentation attached as Schedule 6.1(b) hereof.


 


“Construction
Contracts” means, collectively, the contracts entered into, from
time-to-time, between Developer or a Component Entity and any Project
Contractor for performance of services or sale of goods in connection with the
design, engineering, installation or construction of the Project.


 


“Construction Management
Agreement” means the agreement to be executed between the Authority and the
Developer setting forth the respective rights and obligations of the Parties
during the Construction Period so as to minimize the potential for the
occurrence of Developer Interference or Authority Interference.


 


4

















 


“Construction Notice
Period” shall have the meaning ascribed to such term in Section 11.7
hereof.


 


“Construction Period”
means as to the Project, or any Component (or Phase thereof) or the Traffic and
Infrastructure Improvements (or Phase thereof), that period of time commencing
on the Commencement of Construction and ending on the Completion Date such
Component (or Phase thereof) or the Traffic and Infrastructure Improvements (or
Phase thereof).


 


“Consumer Price Index”
or “CPI” means the Consumer Price Index for Urban Consumers for the New
York-Northern New Jersey-Long Island, New York-New
Jersey-Connecticut-Pennsylvania Urban Area (CPI-U) published by the United
States Department of Labor, Bureau of Labor Statistics, or such other index
compiled and published by the Department of Labor in lieu of or in substitution
for the CPI.


 


“Control”
(including the correlative meanings of the terms “Controlled by” and “under
common Control with”) means with respect to any Person, including without
limitation any Affiliate or Component Entity, the possession, directly or
indirectly, of the power to direct or cause the direction of its management or
policies, whether through the ownership of voting securities, by contract or
otherwise.


 


“DCA” means the
New Jersey Department of Community Affairs, or such other governmental or
regulatory agency to which the powers and responsibilities relating to
construction code enforcement may be transferred by Executive Order signed by
the Governor or by statute.


 


“Damage” means any
loss, cost, assessment, damage, debt, liability, deficiency, fine, penalty,
judgment, lien or expense incurred or to be incurred by Authority or Developer,
including, without limitation, fees and disbursements of attorneys,
consultants, engineers and other professionals, damages from business
interference or interruption, costs to avoid business interference or
interruption, costs and expenses of any Remediation, environmental damages, and
response costs (including, without limitation, response costs under CERCLA or
any other Environmental Law).


 


“Declaration”
shall have the meaning ascribed to such term in Section 13.5
hereof.


 


“Deposit Letter”
means that certain letter agreement between the Authority and Mills and
Mack-Cali (or the Developer as assignee), dated March 26, 2003, pursuant
to which a $500,000 earnest money deposit was deposited with the Authority for
use by the Authority in furtherance of the performance of its obligations
hereunder, as and to the extent provided in such letter agreement.


 


“Deposit Letter of
Credit” shall have the meaning ascribed to such term in Section 5.2(a)(ii)(A)
hereof.


 


“Designated
Representatives” shall mean those individuals designated by Developer and
the Authority, respectively, to receive and deliver notices and/or make
decisions with regard to certain matters specifically provided in this
Agreement.


 


5

















 


“Developer” means
Meadowlands Mills/Mack-Cali Limited Partnership.


 


“Developer Event of
Default” shall have the meaning ascribed to such term in Section 18.1
hereof.


 


“Developer Fault”
shall have the meaning ascribed to such term in Section 5.2 hereof.


 


“Developer Indemnified
Claim” shall have the meaning ascribed to such term in Section 17.6(a)
hereof.


 


“Developer Indemnified
Parties” means the Developer and its officers, partners, agents, employees,
contractors and consultants.


 


“Developer
Interference” shall mean an actual, direct material interference by (or on
behalf of) the Developer, having a material and adverse impact on any of the
following: (i) the Authority’s contractual obligations under this Agreement or
the Sports Complex Agreements; (iii) reasonable or customary access to the
Sports Complex by Sports Complex Users or patrons of events held at any of the
venues located within the Sports Complex, whether on, over or through roads
located within the Sports Complex or from off-site roads and accessways; (iv)
subject to the terms of this Agreement, provision of services, utilities, labor
or amenities to Sports Complex Users, or (v) the delivery of supplies,
inventory, foodstuffs or any other item required for the use, operation and
conduct of sports and entertainment events at the Sports Complex; provided
however, that any purported Interference shall be considered taking into
consideration the construction activities required to be undertaken in order to
carry out the Developer’s obligations with respect to the construction of the
Project (including, without limitation, the presence and operation of
construction equipment, lay down areas and delivery of construction materials).


 


“Developer PILOT
Payments” is defined in Section 5.3(a) hereof.


 


“Developer’s
Environmental Responsibility” means the Remediation of the Release of any
Hazardous Materials caused by any Remediation of the Project Site and
construction of the Project by the Developer or its Affiliates, employees,
agents, or contractors.


 


“Developer’s Response” means, collectively, the following
documents, provided by Developer, in their entirety, and does not include oral
representations related thereto:


 


(i)                                     Response to
Request for Proposals, dated on or about September 16, 2002 (responds to
Authority Request for Proposals of June 29, 2002 and Addendum No. 1 of
August 2002);


 


(ii)                                  Response to First
Request for Additional Information (“RAI”), dated on or about October 30,
2002 (responds to RAI of October 14, 2002);


 


(iii)                               Response to Second RAI,
dated December 30, 2002 (responds to Second RAI of November 21, 2002
and Authority’s letters clarifying this request dated on or about
November 22, 2002 and on or about November 25, 2002);


 


6

















 


(iv)                              Response to Third RAI,
dated January 29, 2003  (responds
to Third RAI of January 22, 2003); and


 


(v)                                 Response to Fourth
RAI, dated February 11, 2003 
(responds to Fourth RAI of February 10, 2003).


 


“Development Approvals”
means the permits, licenses, approvals, authorizations, consents, decrees,
waivers, and certifications set forth on Schedule 8.2(b) hereto and
such other permits, licenses, approvals, authorizations, consents, decrees,
waivers, and certifications as may be issued by the Governmental Bodies having
competent jurisdiction therefore in order that the Project (or any Component
thereof) and/or the Traffic and Infrastructure Improvements may be constructed
and/or operated.  Development Approvals
shall not include permits that would be obtained at the time of construction of
Phase III and/or Phase IV, as set forth in Section 3.2(a) hereof,
any Building Permits, or any Certificates of Occupancy or other permits that
are obtainable only subsequent to the Commencement of Project Construction.


 


“Development Approval
Documents” shall have the meaning ascribed to such term in Section 7.1
hereof.


 


“Development Rights
Fee” shall have the meaning ascribed to such term in Section 5.2(a)
hereof.


 


“Disapproval Notice”
shall have the meaning ascribed to such term in Section 6.2(e)(i)
hereof.


 


“Due Diligence
Documents” shall have the meaning ascribed to such term in Section 6.4
hereof.


 


“Effective Date”
means the date on which both Parties have executed this Agreement.


 


“Empire Tract”
means that real property described on Exhibit “F” hereof.


 


“Enabling Legislation”
is defined in the second paragraph of the Preamble hereof.


 


“Entertainment/Retail
Component” is defined in the eighth paragraph of the Preamble hereof.


 


“Entertainment/Retail
Component Uses” means any and all uses (a) intended for or related to
entertainment, “shoppertainment”TM, recreation and sales, including, without
limitation, motion pictures, sports, recreation, education, leisure, retail and
other vending facilities, food or beverage, dining facilities and services,
together with other buildings, structures, pushcarts, kiosks, properties,
appurtenances and facilities, whether vending or otherwise related to,
incidental to, necessary for or complementary thereto, (b) intended for or
related to hosting, operating, managing, or otherwise effectuating athletic
contests, sporting events, exhibitions, spectacles, events, broadcasting and/or
media facilities, live telecasts, or other expositions, (c) intended for or
related to the sale of goods and services related to, incidental to, necessary
for or complementary to, the Entertainment/Retail Component, other Project
Components and/or the Sports Complex and activities carried out by the
Authority and/or


 


7

















 


the Sports Complex Users on the Meadowlands Complex, and/or (d) as may
be further described in the Approved Master Plan.


 


“Entertainment/Retail
Tenant” means a Project Site tenant that, within the Entertainment/Retail
Component, carries out Entertainment/Retail Component Uses.


 


“Entertainment/Retail
Uses” means any and all uses intended for or related to entertainment,
“shoppertainment”TM, recreation and sales, including, without limitation, motion
pictures, sports, recreation, education, leisure, retail and other vending
facilities, food or beverage, dining facilities and services.


 


“Environment”
means all air, land, and water, including, without limitation, the ambient air,
ground (surface and subsurface), water (surface or groundwater), the ocean,
natural resources (including flora and fauna), soil, sediments, subsurface
strata, or any present or potential drinking water supply.


 


“Environmental Claim”
means any Claim relating to, or in connection with, the Project or Project Site
and/or the Traffic and Infrastructure Improvements, including any Claim for
Damage, personal injury, real or personal property damage, or natural resource
damage, arising directly or indirectly out of any violation or alleged
violation of, or noncompliance or alleged noncompliance with, any Environmental
Law or Remediation, or any pollution, nuisance, contamination, adverse effect
upon the Environment or public health or safety, including the presence,
suspected presence, Release, or threatened or suspected Release or any
Hazardous Material either on, at, in, under, or from the Project Site or any
portion of the Meadowlands Complex that is adjacent to or in the vicinity of
the Project Site.


 


“Environmental
Law” means any applicable federal, state, local or other law, statute,
ordinance, rule, regulation, Authority Permit, judgment, order, decree,
license, or other binding requirement of, or binding agreement with, any
Governmental Body, now or hereafter in effect and, in each case, as amended
from time to time, relating to or governing the presence, Release, or
threatened Release of Hazardous Material, the protection of natural resources,
health, safety or the Environment, or the management, manufacture, use,
processing, sale, generation, handling, labeling, distribution, transportation,
treatment, storage, disposal, Remediation, disclosure, or notice of the
presence, Release or threatened Release of Hazardous Material, including,
without limitation, (a) the Atomic Energy Act, 42 U.S.C. § 2011 et  seq.,
as amended (“AEA”), (b) the Clean Air Act, 42 U.S.C. § 7401 et
seq., as amended (“CAA”), (c) CERCLA, (d) the Emergency Planning
and Community Right-to-Know Act, 42 U.S.C. § 11001 et  seq.,
as amended (“EPCRA”), (e) the Federal Insecticide, Fungicide and
Rodenticide Act, 7 U.S.C. § 136 et  seq., as amended (“FIFRA”),
(f) the federal Water Pollution Control Act, 33 U.S.C. § 1251 et  seq.,
as amended (“FWPCA”), (g) the Hazardous Material Transportation Act, 49
U.S.C. § 1801 et  seq., as amended (“HMTA”), (h) the
Low-Level Radioactive Waste Policy Act, 42 U.S.C. § 2021b et  seq.,
as amended (“LLRWPA”), (i) the Nuclear Waste Policy Act of 1982, 42
U.S.C. § 10101 et  seq., as amended (“NWPA”), (j) the
Occupational Safety and Health Act, 29 U.S.C. § 651 et  seq.,
as amended (“OSHA”), (k) the Resource Conservation and Recovery Act, 42
U.S.C. § 6901 et  seq., as amended (“RCRA”), (l) the
Safe Drinking Water Act, 42 U.S.C. § 300f et  seq., as
amended (“SDWA”), (m) the Toxic Substances Control Act, 15 U.S.C.
§ 2601 et  seq., as


 


8

















 


amended (“TSCA”), (n) the substantive equivalent of any of the
foregoing in any state or foreign jurisdiction, (o) ISRA, (p) the Spill Act,
and (q) NJDEP’s Technical Regulations.


 


“Estimated Wetlands
Restoration Amount” shall have the meaning ascribed to such term in Section 3.5(d)
hereof.


 


“Existing Sports
Complex Agreements” means the agreements set forth on Exhibit “H”
hereto.


 


“Final Completion”
means that (a) a Component (or a Phase thereof) of the Project and/or the
Traffic and Infrastructure Improvements shall have been Completed, and (b) the
Developer shall have delivered to the Authority a final Completion Certificate
certifying that: (i) the Punchlist Items have been completed, (ii) the
Developer has settled with the Project Contractors and the subcontractors all
claims for payments and amounts due under the Construction Contracts or, in
lieu thereof, has provided customary surety or other similar bond for payment
with respect to such lien, and (iii) all final “as-built” plans and
specifications for the Project shall have been delivered to the Authority for
its records.


 


“Final Completion Date”
means that date on which Final Completion of a Component (or Phase thereof) or
of the Traffic and Infrastructure Improvements (or Phase thereof) is
determined, in the Authority’s reasonable judgment, to have occurred.


 


“Final Project
Sequencing Plan” shall have the meaning ascribed to such term in Section 3.2(b)
hereof.


 


“Final Traffic and
Infrastructure Improvements” shall have the meaning ascribed to such term
in Section 3.3(c) hereof.


 


“Final Traffic and
Infrastructure Sequencing Plan” shall have the meaning ascribed to such
term in Section 3.2(c) hereof.


 


“Force Majeure Event”
means the following acts, events or conditions or any combination thereof that
has had or may be reasonably expected to have a direct, material, adverse
effect on the rights or obligations of the Parties to this Agreement; provided
however, that such act, event or condition shall be beyond the
reasonable control of the party relying thereon as justification for not
performing an obligation or complying with any condition required of such party
under the terms of this Agreement:


 


                                                                                                                                                (i)                                     an
act of God, lightning, blizzards, hurricane, tornado, earthquake, unusual or
extreme weather conditions for the geographic area of the Meadowlands Complex,
acts of a public enemy, war, blockade, insurrection, riot or civil disturbance,
sabotage, act of terrorism, or similar occurrence;


 


                                                                                                                                                (ii)                                  a
landslide, fire, explosion, flood or release of nuclear radiation not caused by
an act or omission of the party relying on the Force Majeure Event;


 


                                                                                                                                                (iii)                               the
order, judgment, action and/or determination of any federal, state or local
court, administrative agency or Governmental Body with jurisdiction over the


 


9

















 


Project, the Project Site, the
Traffic and Infrastructure Improvements, or the Parties, excepting decisions
interpreting federal, state and local tax laws generally applicable to all
business taxpayers, which order, judgment, action, and/or determination
materially and adversely affects the rights or obligations of the Parties
hereunder and/or the costs of design, permitting, construction or operation of
the Project, the Traffic and Infrastructure Improvements or the costs of
performance by the Parties of their respective obligations hereunder; provided
however, that such order, judgment, action and/or determination shall
not be the result of the illegal or unlawful actions of the Party relying
thereon and that neither the contesting of any such order, judgments, action
and/or determination, in good faith, nor the reasonable failure to so contest,
shall constitute or be construed as a willful, intentional or negligent action
or inaction by such Party;


 


                                                                                                                                                (iv)                              the
suspension, termination, interruption, denial or failure of or delay in renewal
or issuance of a Development Approval; provided  however, that
such suspension, termination, interruption, denial or failure of or delay in
renewal or issuance shall not be the result of the willful, intentional or
negligent action or inaction of the Party relying thereon or responsible for
obtaining and that neither the contesting of any such suspension, termination,
interruption, denial or failure of renewal or issuance, in good faith, nor the
reasonable failure to so contest, shall constitute or be construed as a
willful, intentional or negligent action or inaction by such Party;


 


                                                                                                                                                (v)                                 strikes,
walkouts or similar labor action affecting Project Contractors, subcontractors,
equipment manufacturers, suppliers of material and/or transporters of same;


 


                                                (vi)                              the institution and
pendency of any Project Litigation; and


 


                                                                                                                                                (vii)                           acts or
omissions of the other Party, except in conformance with this Agreement.


 


The Parties hereto acknowledge that the acts,
events or conditions set forth in subparagraphs (i) through (vii) above are
intended to be the only acts, events or conditions that may (upon satisfaction
of the conditions specified above) constitute a Force Majeure Event.


 


“Giants” means the New York Football Giants,
Inc., a corporation duly organized under the laws of the State of New York.


 


“Giants Lease” shall have the meaning
ascribed to such term in Section 3.7(d) hereof, including any
amendment thereto entered into after the Effective Date.


 


“Giants Negotiation Period” shall have
the meaning ascribed to such term in Section 3.7(d)(i).


 


“Giants Stadium”
means the football stadium located within the Meadowlands Complex.


 


“GLA” means gross leaseable area.


 


10

















 


“Governmental Body”
or “Governmental Bodies” means any federal, state, county or local
agency, department, commission, authority, court, or tribunal and any successor
thereto, of competent jurisdiction, exercising executive, legislative,
judicial, or administrative functions of or pertaining to government; provided
however, the Authority shall not, for purposes of this Agreement only,
constitute a Governmental Body.


 


“Ground Lease”
means that certain agreement to be executed between Authority and Developer for
the lease of the Project Site, in form and content to be mutually agreed upon
by the Parties, but incorporating the terms, covenants and conditions set forth
in the Ground Lease Term Sheet attached as Exhibit “B” hereto.  To the extent applicable, “Ground Lease”
shall also mean the separate Component Leases executed by the Authority
directly with a Component Entity (in lieu of the Developer) with respect to a
Component Interest (in lieu of the Project in its entirety).


 


“Ground Lease Closing”
means the payment of the Development Rights Fee, execution and delivery of the
Ground Lease and such other actions contemplated to be performed set forth in Section 9.3
hereof.


 


“Ground Lease Closing
Date” means the date on which the Ground Lease shall be executed and
delivered by the Parties and the Development Rights Fee is paid to the
Authority.  Such date shall be the 150th
day following the satisfaction or waiver by the Developer of the Material
Conditions, or such earlier date as may be established pursuant to Section 9.1(b)
hereof.


 


“Ground Lease Term
Sheet” means the term sheet attached hereto as Exhibit “B”.


 


“Ground Rent”
shall have the meaning ascribed to such term in the Ground Lease.


 


“Ground Rent Payment
Conditions” shall have the meaning ascribed to such term in Section 5.2(d)
hereof.


 


“Hazardous Material”
means any material, substance, or waste that, because of its presence,
quantity, concentration, or character, (a) is regulated under any Environmental
Law, (b) would cause or pose a material threat, hazard, or risk to human health
or safety or the Environment, or (c) may result in the imposition of, or form
the basis for, a Claim, Damage, Environmental Claim, or Remediation, including,
without limitation:  (i) any “hazardous
substance” and any “pollutant or contaminant” as those terms are defined in
CERCLA, the Spill Act, or RCRA; (ii) any hazardous substance, element,
compound, mixture, solution, or substance designated pursuant to
Section 102 of CERCLA or otherwise regulated under CERCLA; (iii) any substance
designated pursuant to Section 311(b)(2)(A) of FWPCA or otherwise
regulated under FWPCA; (iv) any toxic pollutant listed pursuant to
Section 307 of FWPCA; (v) any hazardous waste having the characteristics
identified under or listed pursuant to Section 3001 of RCRA or otherwise
regulated under RCRA; (vi) any substance containing petroleum or otherwise
regulated under Section 9001 of RCRA; (vii) any hazardous air pollutant
listed pursuant to Section 112 of CAA or otherwise regulated under CAA;
(viii) any hazardous chemical substance or mixture designated pursuant to
Section 4, 6 or 7 of TSCA; (ix) any radioactive material or waste
identified or defined pursuant to Section 2 of LLRWPA or Section 2 of
NWPA or otherwise regulated under LLRWPA or NWPA; (x) any “hazardous waste” as
that term is


 


11

















 


defined in HMTA; and (xi) any petroleum product or byproducts, solvent,
flammable or explosive material, radioactive material, asbestos,
polychlorinated biphenyls (PCBs), dioxins, dibenzofurans; and (xii) heavy
metals that require Remediation.


 


“Historic Fill Material” means
non-indigenous material, deposited to raise the topographic elevation of the
Project Site, which was contaminated prior to emplacement, and is in no way
connected with the operations at the Sports Complex and which includes, without
limitation, construction debris, dredge spoils, incinerator residue, demolition
debris, fly ash, or non-hazardous solid waste. 
Historic Fill Material does not include any material which is
substantially chromate chemical production waste or any other chemical
production waste or waste from processing of metal or mineral ores, residues,
slag or tailings.  In addition, Historic
Fill Material does not include a municipal solid waste landfill site.


 


“Hotel Component”
is defined in the eighth paragraph of the Preamble hereof.


 


“Hotel Component Uses”
means any and all facilities, sales and services primarily intended for
overnight lodging, dining, conference services and related amenities consistent
with a first-class hotel and/or conference center, together with ancillary and
complementary supporting retail space, and as may be further and more
particularly described in the Master Plan.


 


“Incremental Costs”
means those additional costs and expenses incurred by Developer that would not
have been incurred but for required Remediation that is the Authority’s
Environmental Responsibility under this Agreement, exclusive of costs and
expenses for Remediation of Releases of Hazardous Materials that are part of
the Developer’s Environmental Responsibility.


 


“Infrastructure
Improvements” means 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.  Infrastructure
Improvements shall not include Traffic and Infrastructure Improvements.


 


“Initial Threshold”
shall have the meaning ascribed to such term in Section 5.4 hereof.


 


“Interference Notice”
shall have the meaning specified in Section 11.10 hereof.


 


“Internal Revenue Code”
shall mean the Internal Revenue Code of 1986, as amended, and any regulations
promulgated thereunder.


 


“ISRA” means the
New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et  seq.,
as amended.


 


“Job Skills Program”
shall have the meaning ascribed to such term in Section 3.6 hereof.


 


“Land Use Restrictions”
means those notices, restrictions, and covenants (including the implementation,
operation and maintenance of institutional and engineering controls) affecting
the title and use of the Project Site or some portion thereof as prescribed by
any Governmental


 


12

















 


Body to protect the public and the Environment from unsafe exposures to
Hazardous Materials or to effectuate mitigation of adverse impacts on the
Environment and which may be memorialized in recorded documents, including
without limitation conservation easements, deed notices and, for groundwater,
CEAs, under any Environmental Law.


 


“Legal Requirements”
means all laws, statutes, codes, ordinances, orders, regulations and
requirements of any Governmental Body, now or hereafter in effect, and, in each
case, as amended from time to time, including, without limitation, the Enabling
Legislation.


 


“Lien” means, with
respect to any asset, any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind in respect of any such asset, whether or not filed,
recorded or otherwise perfected under applicable law.


 


“Limiting Factors”
shall have the meaning ascribed to such term in Section 3.7(d)(i).


 


“Local Office” is
defined in Section 11.12 hereof.


 


“MOA” shall have
the meaning ascribed to such term in Section 15.1(a) hereof.


 


“Mack-Cali” means
Mack-Cali Meadowlands Corporation, or its permitted successors or assigns.


 


“Major Modification”
means an amendment or modification of the Approved Master Plan that proposes
(a) a material increase in the size of a Component, (b) a complete or partial
change from one Component Use to a different Component Use (e.g. Office
Component to Hotel Component), (c) a material increase in the square footage
(or GLA, to the extent applicable) devoted to any Component Use or a material
reallocation of square footage (or GLA, to the extent applicable) devoted to a
use within a Component (e.g., a replacement of entertainment space with retail
space), (d) a material modification of the exterior appearance of the Project,
and/or (e) such other material modification to the Project or a Component (or
Phase thereof) which, if effectuated, would cause the Project or such Component
(or Phase thereof) to be materially and adversely inconsistent with the
Approved Master Plan.


 


“Master Plan”
shall have the meaning ascribed to such term in Section 6.2 hereof.


 


“Material Adverse
Effect” means a (A) material adverse effect on (i) the performance,
operations, business, property, assets, liabilities or financial condition of
the Authority, the Developer or the Project; (ii) the ability of Developer to
achieve Final Completion on or prior to any scheduled Completion Date or to meet
any interim date provided in the final Project Sequencing Plan, the Project
Schedule, or any update thereof, (iii) compliance by the Authority or the
Developer with any Legal Requirements (including without limitation,
Development Approvals), or (iv) the use or operation of the Sports Complex or
any portion of the Project, and (B) contravention, modification or limitation
of a respective Party’s rights granted or permitted under this Agreement or the
Project Agreements.


 


“Material Conditions”
shall have the meaning ascribed to such term in Section 8.2 hereof.


 


13

















 


“Material Conditions
Termination Date” shall have the meaning ascribed to such term in Section 8.2
hereof.


 


“Meadowlands” and
“Meadowlands Sports Complex” shall have the meanings ascribed thereto in
the Preamble to this Agreement.


 


“Meadowlands Complex”
means the Sports Complex, as defined in this Schedule 1.1.


 


“Meadowlands Racetrack”
means that certain horseracing track and related improvements located in the
Sports Complex.


 


“Mills” means
Meadowlands Mills Limited Partnership, or its permitted successors or assigns.


 


“MIMAC” means the
Meadowlands Interagency Mitigation Advisory Committee, or such successor entity
to which the responsibilities of MIMAC are transferred.


 


“MIMAC Agreement”
means the agreement between the Developer and MIMAC setting forth the terms and
conditions relating to establishment and operation of the Wetlands Mitigation
Bank.


 


“Minor Modification”
means any proposed modification of the Approved Master Plan other than a Major
Modification.  Any addition, change or
amendment to the Approved Master Plan required to address the requirements of
any Development Approval and/or submittal of additional related items that were
not included in the Master Plan Approved by the Authority shall (to the extent
not constituting a Major Modification) be deemed to constitute a Minor
Modification.


 


“Municipalities”
means the Borough (as defined above) and the municipalities immediately
adjacent to the Borough, namely Rutherford, Wallington, Carlstadt, Secaucus and
Passaic.


 


“NFA”
means a No Further Action Letter as defined in ISRA and the Brownfield and
Contaminated Site Remediation Act, N.J.S.A. 58:10B-1 et  seq., and
its implementing regulations, or, if the Remediation is under the supervision
of any Governmental Body other than DEP, such comparable determination and
document from such other Governmental Body as is available under applicable
Environmental Law.


 


“NJDEP” means the
New Jersey Department of Environmental Protection, or any successor regulatory
agency to which the powers of NJDEP have been transferred.


 


“NJDEP
Technical Regulations” means the NJDEP’s Technical Requirements for Site
Remediation,  N.J.A.C. 7:26E-1, et
seq.


 


“NJMC” means the
New Jersey Meadowlands Commission, formerly known as the Hackensack Meadowlands
Development Commission, or any other regulatory agency to which the powers of
NJMC have been transferred.


 


14

















 


“New Sports Complex
Agreement” means either (a) an agreement executed by the Authority
subsequent to the Effective Date with respect to the construction, operation,
use or maintenance of the Sports Complex, including any agreement with a
current Sports Complex Tenant, or (b) any modification or supplement to an
Existing Sports Complex Agreement, executed by the Authority subsequent to the
Effective Date, and in either case, Approved by the Developer, in writing.


 


“OCIP” shall have
the meaning ascribed to such term in Section 17.3 hereof.


 


“Offer Notice”
shall have the meaning ascribed to such term in Section 10.2(b)
hereof.


 


“Office Component”
is defined in the eighth paragraph of the Preamble hereof.


 


“Office Component Uses”
means the facilities and services primarily intended for a Class “A” office
building, together with any necessary or desired amenities, together with
ancillary and complementary supporting retail space, all as more particularly
described in the Master Plan.


 


“Office/Hotel Tenant”
means a Project Site tenant that, within the Office Component or Hotel
Component, as the case may be, operates, manages, promotes, or otherwise
effectuates, either directly or indirectly through lessees, licensees, or
agents, Hotel Component Uses and Office Component Uses.


 


“Outside Material
Conditions Termination Date” shall have the meaning ascribed to such term
in Section 8.3 hereof.


 


“Overdue Rate”
means a rate per annum equal to the prime rate of interest that is published in
the Wall Street Journal from time to time (or such other publication
that is reasonably designated by the Party entitled to collect interest at the
Overdue Rate in the event that the Wall Street Journal ceases
publication or, if published, ceases to publish the prime rate of interest) plus
four per centum (4%).


 


“Parking Component”
means that portion of the Project consisting of approximately 12,500 parking
spaces in multi-story concrete parking structures which Component is intended
to be operated for Parking Component Uses. 
The Parking Component may be constructed in multiple locations on the
Project Site and may be incorporated into a building or other structure that is
constructed as part of a different Project Component.  The Parking Component may be designed, permitted and constructed
in Phases in accordance with the Final Project Sequencing Plan.


 


“Parking Component
Uses” shall mean the short-term parking of passenger motor vehicles for
business invitees to the Project (or any Component thereof) and the attendees
of Sports Complex events, as set forth in the Project Operating Agreement.


 


“Party” or “Parties”
means the Developer or the Authority, as appropriate.


 


“Perimeter Survey”
shall have the meaning ascribed to such term in Section 6.1 hereof.


 


15

















 


“Permitted Exception”
shall have the meaning ascribed to such term in Section 4.2(b) hereof.


 


“Permitted Liens”
means the following types of Liens: (i) Liens incurred in connection with the
Project Indebtedness; (ii) Liens for taxes, assessments or governmental charges
or claims the payment of which is not, at the time due and payable or which is
being contested in good faith by appropriate proceedings in accordance with the
terms of this Agreement; (iii) statutory Liens of landlords, statutory Liens of
banks and rights of set-off, statutory Liens of carriers, warehousemen,
mechanics, repairmen, workmen and materialmen, and other Liens imposed by law,
in each case incurred in the ordinary course of business for amounts not yet
overdue; (iv) leases or subleases granted to third parties in accordance with
the terms of this Agreement; (v) Permitted Exceptions, and (vi) easements,
rights-of-way, restrictions, encroachments and other minor defects or
irregularities in title, in each case that (A) do not result in a material
diminution in the value of the Authority’s interest in the Sports Complex or
the Project Site or (B) cause Developer Interference or an Authority
Interference or materially and adversely interfere with the use and operation
of the Project; and (vi) any zoning or similar law or right reserved to any
Governmental Body to control or regulate the use of the Project Site.


 


“Permitted Transferee”
shall have the meaning ascribed to such term in Section 14.2(a)
hereof.


 


“Permitted Transfers”
is defined in Section 14.2 hereof.


 


“Person” means any
individual, sole proprietorship, corporation, partnership, joint venture,
limited liability company or corporation, trust, unincorporated association,
institution, public or governmental body, or any other entity including without
limitation the Developer, Project Contractors, subcontractors, Designated
Representatives or any tenant, operator or concessionaire operating within the
Project.


 


“Phase” is defined
in Section 3.2 hereof.


 


“PILOT Negotiation
Period” is defined in Section 5.3(d) hereof.


 


“PILOT Payments”
is defined in Section 5.3(b) hereof.


 


“Plans and
Specifications” shall have the meaning provided in Section 11.2
hereof.


 


“Post-Approval Item”
shall have the meaning ascribed to such term in Section 6.2 hereof.


 


“Preliminary Project
Sequencing Plan” shall have the meaning ascribed to such term in Section 3.2(b)
hereof.


 


“Preliminary Traffic
and Infrastructure Sequencing Plan” shall have the meaning ascribed to such
term in Section 3.2(c) hereof.


 


“Progress Report”
is defined in Section 12.4 hereof.


 


“Prohibited Uses”
shall have the meaning ascribed to such term in Schedule 13.1
hereto.


 


16

















 


“Project” shall
have the meaning ascribed to such term in the Recitals to this Agreement.


 


“Project Agreements”
shall mean, collectively, the agreements set forth on Schedule 1.2
hereto.


 


“Project Arbitration”
is defined in Section 21.1 hereof.


 


“Project Arbitration
Provision” shall have the meaning ascribed to such term in
Section 21.1 hereof.


 


“Project Architect”
means an architect or firm of architects designated by the Developer, from time
to time, licensed to practice in the State of New Jersey and approved by the
Authority pursuant to the terms hereof, or identified on Schedule 11.2
hereto.


 


“Project Certificate
of Occupancy” means a permanent certificate of occupancy or a temporary
certificate of occupancy, in either case, for the Project, Phase, Component or
Component Part, as the case may be, issued by the appropriate Governmental Body
pursuant to applicable Legal Requirements which permanent or temporary
certificate of occupancy shall permit the Project (or any Component thereof, or
Phase thereof, as the case may be) to be used for the Component Uses of the Project,
shall be in full force and effect, and, in the case of a temporary certificate
of occupancy, if such temporary certificate of occupancy shall provide for an
expiration date not less than fifteen (15) days after the anticipated date of
Completion of any outstanding Punchlist Items as certified by the Project
Architect.


 


“Project Component”
or “Component” shall have the meaning ascribed to such term in the
Recitals hereof.


 


“Project Component
Site” means a portion of the Project Site upon which a Project Component is
constructed.


 


“Project Contractor”
means a general contractor retained by the Developer or any Component Entity,
as the case may be, for construction of the Project Improvements or any element
thereof.


 


“Project Documents”
means (a) all of the documents submitted by the Developer or any Component
Entity, as the case may be, to the Authority or any Governmental Body in
connection with the Approval of the Master Plan or the request for any
Development Approvals, and (b) all Project Agreements.


 


“Project Improvements”
means all buildings, structures, improvements, site preparation work,
Infrastructure Improvements, and amenities as are related to or reasonably
necessary for the implementation and Completion of the Project in accordance
with the Master Plan.


 


“Project Indebtedness”
means the debt obligations issued by, or the construction or permanent loans
made to, the Developer for purposes of providing moneys for payment of a
portion of the costs of the Project and/or the obligations of the Developer
under this Agreement, the Ground Lease and/or the Project Agreements.


 


17

















 


“Project Lender(s)”
means any financial institution or other financial services entity providing
construction or permanent financing to the Developer (or any Component Entity)
or for any Component.


 


“Project Litigation”
shall have the meaning described in Section 13.3 hereof.


 


“Project Operating
Agreement” means the agreement to be executed between the Authority and the
Developer setting forth the rights and obligations of the Parties in connection
with operation of the Project and the Meadowlands Complex after the
Construction Period so as to minimize the potential for the occurrence of
Developer Interference or Authority Interference.


 


“Project Professionals”
shall have the meaning ascribed to such term in Section 11.2
hereof.


 


“Project Schedule”
shall have the meaning ascribed to such term in Section 12.1
hereof.


 


“Project Site”
means that property within the Meadowlands Complex that is more specifically
described on Exhibit “A” hereto.


 


“Project Team”
means the Developer’s staff assigned to the Project and the Project
Professionals.


 


“Promotional Materials”
shall have the meaning ascribed to such term in Section 20.1(b)
hereof.


 


“Property Tax Waiver”
shall have the meaning ascribed to such tax in Section 5.3(b)
hereof.


 


“Proposed Transferee”
shall have the meaning ascribed to such term in Section 14.3
hereof.


 


“Punchlist Items”
means minor or insubstantial details of construction or mechanical adjustment,
the non-completion of which, when all such items are taken together, will not
interfere in any material respect with the use or occupancy of any Component
for the Component Uses or the ability of the Developer or any Tenant to perform
work that is necessary or desirable to prepare such portion of the Project for
such use and occupancy.


 


“RCRA”
means the Resource Conservation and Recovery Act, 42 U.S.C. §6901, et  seq.,
as amended.


 


“Racetrack Hotel ROFR”  shall have the meaning ascribed to such term
in Section 10.2(f) hereof.


 


“Rail Access Project”
shall have the meaning ascribed to such term in Section 3.3(d)
hereof.


 


“Rail Access Project
Expenditure” shall have the meaning ascribed to such term in Section 3.3(d)
hereof.


 


18

















 


“Refundable Security
Deposit” shall have the meaning ascribed to such term in Section 5.2(a)(ii)
hereof


 


“Release” means
any spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping or disposing, migration or placement
into or contamination of, the Environment.


 


“Remediate,” “Remediation,”
or “Remediated” means any assessment, examination, analysis, test,
monitoring, investigation, containment, cleanup, response or remedial action,
removal, mitigation, restoration, storage, transportation, treatment, disposal,
maintenance, RCRA closure activities or other activity with respect to or in
response to any Release of any Hazardous Material, including, without limitation,
preparation of any reports and other documents, any disclosure or notice or any
other administrative matter required thereunder or arising therefrom, and
including any post-closure obligations for such activities, such as monitoring
and maintenance of and compliance with engineering and institutional controls.


 


“Remediation Equipment”
means any equipment at the Project Site used in connection with any Remediation
at the Project Site.


 


“Response” is
defined in the sixth paragraph of the Preamble hereof.


 


“Response Period”
shall have the meaning ascribed to such term in Section 6.2(f)
hereof.


 


“Resubmitted Master
Plan Information” shall have the meaning ascribed to such term in Section 6.2(e)(i)
hereof.


 


“Resubmitted
Post-Approval Item Information” shall have the meaning ascribed to such
term in Section 6.2(f) hereof.


 


“REIT” shall have
the meaning ascribed to such term in Section 14.2(a) hereof.


 


“RFP” is defined
in the fifth paragraph of the Preamble hereof.


 


“Right of Entry
Agreement” means the agreement between the Authority, Mills and Mack-Cali,
dated July 28, 2003 and assigned to the Developer, as the same may be
amended or modified from time to time in accordance with its terms.


 


“Right of First
Refusal” shall have the meaning ascribed to such term in Section 10.2(a)
hereof.


 


“ROFR Event” shall
have the meaning ascribed to such term in Section 10.2(b) hereof.


 


“Second Threshold”
shall have the meaning ascribed to such term in Section 5.4 hereof.


 


“Settlement Agreement”
means that certain Settlement Agreement by and among the Borough, the East
Rutherford Sewerage Authority and the Authority dated January 1, 1990, as
amended by an addendum executed in January 1997, relating to Authority’s
obligation to make PILOT payments to the Borough under N.J.S.A. 5:10-18(b).


 


19

















 


“Signage” shall
mean all exterior signage (permanent or temporary) and all other exterior
advertising media used for advertising or marketing purposes at the Project
Site, including, but not limited to, any such exterior signage or exterior
advertising media located at the Project, and such signage and advertising
media without limitation, “JumboTron”-type screens, advertising signs, banners
or displays, time clocks, message boards, billboards, public address
announcements, and any advertising media located at the Project through which
any other Person holding such rights advertises or markets or may advertise or
market products, services, events or any other items.  The term “Signage,” as used herein, shall specifically include
any exterior or advertising media not presently utilized or contemplated by the
Parties that may be utilized at any time in the future for the advertising or
marketing of products, services, events, or other items at the Project.


 


“Small Business
Marketing Program” shall have the meaning ascribed to such term in Section 3.6
hereof.


 


“Spill Act”
means the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11, et
seq., as amended.


 


“Sports Complex”
or “Meadowlands Complex” means the real property owned by the Authority,
as depicted on Exhibit “B” hereto, upon which the Meadowlands Sports
Complex, including but not limited to the Continental Airlines Arena, Giants
Stadium, the Meadowlands Racetrack are situated.


 


“Sports Complex
Agreements” means  collectively, (a)
the Existing Sports Complex Agreements, and (b) any New Sports Complex
Agreements.


 


“Sports Complex
Tenants”, subject to the terms of all Project Agreements, means (a) as of
the Effective Date, the following professional sports teams: the New Jersey
Nets (NBA), the New Jersey Devils (NHL), the New York Giants (NFL), the New
York Jets (NFL), the New York/New Jersey MetroStars (MLS), and (b) subsequent
to the Effective Date, any professional sports team or other user of the Sports
Complex pursuant to a New Sports Complex Agreement.


 


“Sports Complex Users”
means Sports Complex Tenants, and such other sports teams, entertainment,
shows, exhibitions, advertisers, users and concessionaires that use or may use
the Sports Complex from time to time during the term of this Agreement.


 


“Stakeholders Advisory
Group” shall have the meaning ascribed to such term in Section 12.6
hereof.


 


“Stakeholders Liaison”
shall have the meaning ascribed to such term in Section 12.6 hereof.


 


“State” means the
State of New Jersey.


 


“substantially
complete” or “substantially completed” means that all work related
to a Component, Component Part or the Final Traffic and Infrastructure
Improvements, as the case may be, has achieved a state of completion so that it
is eligible for review by the Authority


 


20

















 


pursuant to the criteria set forth in Section 9.5(a) hereof
for delivery of a Certificate of Completion.


 


“Successor” shall
have the meaning ascribed to such term in Section 14.3(a) hereof.


 


“Tenant(s)” means
the Office/Hotel Tenants and the Entertainment/Retail Tenants.


 


“Title Insurer”
shall have the meaning ascribed to such term in Section 4.2(a)
hereof.


 


“Title Insurance
Commitment” shall have the meaning ascribed to such term in Section 4.2(a)
hereof.


 


“Title Objection”
shall have the meaning ascribed to such term in Section 4.2(b)
hereof.


 


“Title Objection Date”
shall have the meaning ascribed to such term in Section 4.2(b)
hereof.


 


“Title Policy”
shall have the meaning ascribed to such term in Section 4.3 hereof.


 


“Traffic and
Infrastructure Improvements” means 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.  The Traffic and
Infrastructure Improvements may be permitted, designed and constructed in Phases
in accordance with the Final Traffic and Infrastructure Sequencing Plan.


 


“Traffic and
Infrastructure Cap Amount” shall have the meaning ascribed to such term in Section 3.3(d)
hereof.


 


“Traffic Study”
shall have the meaning ascribed to such term in Section 6.2(c)(i)
hereof.


 


“Transferee” shall
have the meaning ascribed to such term in Section 14.3(a) hereof.


 


“Transferee
Application” shall have the meaning ascribed to such term in Section 14.4
hereof.


 


“Transfer Documents”
shall have the meaning ascribed to such term in Section 1.3(b)
hereof.


 


“Transfers” shall
have the meaning ascribed to such term in Section 14.1 hereof.


 


“Unspent Traffic and
Infrastructure Amount” shall have the meaning ascribed to such term in Section 3.3(d)(ii)
hereof.


 


“WMB Approvals”
shall have the meaning ascribed to such term in Section 3.5(b)
hereof.


 


“Wetlands Mitigation
Bank” shall have the meaning ascribed to such term in Section 3.5(b)
hereof.


 


21