Contribution and Adoption Agreement - Marina District Development Holding Co. LLC, MAC Corp. and Boyd Atlantic City Inc.
CONTRIBUTION AND ADOPTION AGREEMENT
THIS CONTRIBUTION AND ADOPTION AGREEMENT (this "Agreement"), is made
effective as of the 13th day of December, 2000 (the "Effective Date"), by and
among MARINA DISTRICT DEVELOPMENT HOLDING CO., LLC, a New Jersey limited
liability company ("Holding"); MAC, CORP., a New Jersey corporation ("MR Sub");
and BOYD ATLANTIC CITY, INC., a New Jersey corporation ("Boyd Sub") (Holding, MR
Sub and Boyd Sub each, a "Party" and collectively, the "Parties").
BACKGROUND
A. MR Sub and Boyd Sub were the sole, equal general partners in Marina
District Development Company, a New Jersey general partnership (the "Joint
Venture").
B. MR Sub and Boyd Sub formed, as the sole equal members (i) Marina
District Development Company, LLC, a New Jersey limited liability company
("MDDC"); and (ii) Marina District Development Holding Co., LLC ("Holding"), a
New Jersey limited liability company.
C. On the Effective Date, the Joint Venture merged with and into MDDC
pursuant to, and in accordance with, Section 42:1-49 of the New Jersey Uniform
Partnership Act and Section 42:2B-20 of the New Jersey Limited Liability Company
Act, and a Plan of Merger adopted by the Joint Venture and MDDC (the "Merger"),
pursuant to which (i) each of MR Sub and Boyd Sub contributed to MDDC its
respective partnership interests in the Joint Venture, which such interests
were, as a result of the Merger, cancelled; and (ii) MDDC is the surviving
entity of the Merger.
D. The Parties have agreed, among other things, and wish to memorialize
and carry out in accordance with the terms of this Agreement, that: (i) each of
MR Sub and Boyd Sub shall contribute to Holding its respective membership
interest in MDDC (collectively, the "MDDC Membership Interests"); (ii) Holding
shall adopt as its operating agreement that certain Second Amended and Restated
Joint Venture Agreement of the Partnership, dated as of August 31, 2000, by and
between MR Sub and Boyd Sub (the "Joint Venture Agreement"), as amended in
accordance with this Agreement; and (iii) MR Sub and Boyd Sub shall fulfill
their remaining obligations to Holding under the terms of the Joint Venture
Agreement, as amended, with regard to capital contributions by contributing the
capital to MDDC as designee of Holding, rather than directly to Holding.
E. MR Sub and Boyd Sub intend that the transactions described in Sections
B through D above not effect any substantive change in the Parties' rights and
obligations as set forth in the Joint Venture Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
promises of the Parties and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by each Party to the other, the
Parties, intending to be legally bound, hereby covenant and agree as follows:
TERMS
1. INCORPORATION OF RECITALS. The recitals set forth above in Sections A
through E above are hereby incorporated into and made a part of this Agreement.
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2. CONTRIBUTION OF MDDC MEMBERSHIP INTERESTS. Each of MR Sub and Boyd Sub
hereby contributes to Holding, free and clear of all liens, pledges,
hypothecations or encumbrances of any type or nature whatsoever (collectively,
"Liens"), all of its respective MDDC Membership Interests, and Holding hereby
accepts the MDDC Membership Interests (the "Contribution"). As a result of the
Contribution, Holding is the sole member of MDDC, holding 100% of the membership
interests in MDDC.
3. ADOPTION OF JOINT VENTURE AGREEMENT AS OPERATING AGREEMENT. MR Sub and
Boyd Sub, in their capacity as the sole members of Holding, hereby adopt as the
operating agreement of Holding, the Joint Venture Agreement as amended in
accordance with the following (the "Operating Agreement"):
A. SECTION 1.1. Section 1.1 of the Joint Venture Agreement shall be
deleted and the following Section 1.1 shall be substituted:
"SECTION 1.1 ORGANIZATION. THE MEMBERS HEREBY CONFIRM THAT THEY HAVE
FORMED AND ESTABLISHED A LIMITED LIABILITY COMPANY (THE "COMPANY"),
UNDER AND PURSUANT TO THE PROVISIONS OF THE NEW JERSEY LIMITED
LIABILITY COMPANY ACT, N.J.S.A. 42:2B-1 ET SEQ., AS AMENDED (THE "LLC
ACT"), UPON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT."
B. SECTION 1.2. Section 1.2 of the Joint Venture Agreement shall be
deleted and the following Section 1.2 shall be substituted:
"SECTION 1.2 NAME. THE NAME OF THE COMPANY SHALL BE MARINA DISTRICT
DEVELOPMENT HOLDING CO., LLC, AND ALL BUSINESS OF THE COMPANY SHALL BE
CONDUCTED SOLELY IN SUCH NAME OR IN SUCH OTHER NAME OR NAMES AS THE
MEMBERS MAY MUTUALLY DETERMINE."
C. SECTION 1.4. Section 1.4 of the Joint Venture Agreement shall be
deleted and the following Section 1.4 shall be substituted:
"SECTION 1.4 BUSINESS OF THE COMPANY. THE BUSINESS OF THE COMPANY IS
TO ACQUIRE AND OWN THE PROPERTY AND TO DESIGN, DEVELOP, CONSTRUCT,
FINANCE, OWN AND OPERATE THE FACILITY ON THE PROPERTY. THE PURPOSES OF
THE COMPANY SHALL INCLUDE THE CONDUCT OF CASINO GAMING. THE BUSINESS
OF THE COMPANY MAY BE CONDUCTED THROUGH ONE OR MORE OPERATING
SUBSIDIARIES, INCLUDING BUT NOT LIMITED TO MDDC. IN FURTHERANCE OF ITS
BUSINESS, THE COMPANY SHALL HAVE AND MAY EXERCISE ALL THE POWERS NOW
OR HEREAFTER CONFERRED BY THE LAWS OF THE STATE OF NEW JERSEY ON
LIMITED LIABILITY COMPANIES FORMED UNDER THE LAWS OF THAT STATE, AND
MAY DO ANY AND ALL THINGS RELATED OR INCIDENTAL TO ITS BUSINESS AS
FULLY AS NATURAL PERSONS MIGHT OR COULD DO UNDER THE LAWS OF THAT
STATE. ONE SUCH POWER SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO, THE
CREATION, OWNERSHIP AND OPERATION OF AN ENTITY TO BE UTILIZED IN
CONNECTION WITH FINANCING THE FACILITY, WHOSE BOARD OF DIRECTORS OR
MANAGERS SHALL BE APPOINTED BY THE MANAGING MEMBER."
D. SECTION 1.9. Section 1.9 of the Joint Venture Agreement shall be
deleted and the following Section 1.9 shall be substituted:
"SECTION 1.9 DURATION. THE COMPANY WAS FORMED ON NOVEMBER 21, 2000
UPON THE FILING OF A CERTIFICATE OF FORMATION WITH THE NEW JERSEY
DEPARTMENT OF TREASURY AND THE COMPANY SHALL CONTINUE IN EXISTENCE
UNTIL DISSOLVED AND LIQUIDATED PURSUANT TO LAW OR ANY PROVISIONS OF
THIS AGREEMENT."
E. SECTION 1.10. The definition of "Venturer" and "Venturers" in
Section 1.10 of the Joint Venture Agreement shall be deleted and the following
shall be substituted:
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"MEMBER" AND "MEMBERS" MEANS, INDIVIDUALLY OR COLLECTIVELY, AS
APPLICABLE, MR SUB AND BOYD SUB OR ANY SUCCESSOR TO EITHER PARTY BY
TRANSFER EXPRESSLY PERMITTED BY THIS AGREEMENT.
F. SUBSTITUTION OF TERMS. All references in the Joint Venture
Agreement to the term or terms (A) "Venturer" or "Venturers," including
references in defined terms such as "Responding Venturer," "Defaulting
Venturer," "Managing Venturer," etc., shall be replaced with the terms "Member"
and "Members", respectively; (B) "Joint Venture" shall be replaced with the term
"Company"; and (C) "Second Amended and Restated Joint Venture Agreement" shall
be replaced with the term "Operating Agreement." For the purposes of this
Agreement, the term "Company" shall include, as appropriate, MDDC.
G. SECTION 2.5. The following sentence shall be added to the end of
Section 2.5 of the Joint Venture Agreement:
"THE LIABILITY OF EACH OF MR SUB AND BOYD SUB AS A MEMBER OF HOLDING
SHALL BE LIMITED AS SET FORTH IN THE OPERATING AGREEMENT, THE LLC ACT
AND OTHER APPLICABLE LAW, AS EACH IS AMENDED FROM TIME TO TIME."
H. Section 3.3(a) of the Joint Venture Agreement shall be deleted
and the following Section 3.3(a) shall be substituted:
"(a) MR SUB HAS PREVIOUSLY CONTRIBUTED THE PROPERTY TO THE JOINT
VENTURE PURSUANT TO SECTION 3.2, AND CONCURRENTLY THEREWITH, BOYD SUB
MADE AN ADDITIONAL CAPITAL CONTRIBUTION OF CASH IN THE AMOUNT OF
$90,000,000 TO THE COMPANY. FROM TIME TO TIME, EXCEPT AS OTHERWISE
PROVIDED IN THIS SECTION 3.3(a), EACH OF THE MEMBERS SHALL
CONCURRENTLY MAKE EQUAL ADDITIONAL CAPITAL CONTRIBUTIONS OF CASH
AGGREGATING $117,000,000 EACH TO THE COMPANY AT SUCH TIME OR TIMES AS
REQUIRED BY THE PROVIDER OF THE CONSTRUCTION FINANCING OR AT THE TIME
OR TIMES AS THE MANAGING MEMBER REASONABLY DETERMINES NECESSARY TO
COINCIDE WITH THE FUNDING OF PROJECT COSTS; PROVIDED, HOWEVER, THAT IF
ACCEPTABLE TO THE PROVIDER OF THE CONSTRUCTION FINANCING, EACH OF THE
MEMBERS MAY PROVIDE ALL OR PART OF SUCH $117,000,000 CASH CONTRIBUTION
AS SUBORDINATED LOANS, ON SUCH TERMS AS THE MEMBERS MAY MUTUALLY
DETERMINE, RATHER THAN AS CAPITAL CONTRIBUTIONS. NOTWITHSTANDING THE
FOREGOING, IF ACCEPTABLE TO THE PROVIDER OF CONSTRUCTION FINANCING,
EACH MEMBER SHALL BE ENTITLED TO DEFER A PORTION OF SUCH $117,000,000
CAPITAL CONTRIBUTION BY PROVIDING THE COMPANY WITH A STANDBY LETTER OF
CREDIT IN THE AMOUNT OF $25,000,000 AS SECURITY FOR ITS OBLIGATION TO
CONTRIBUTE SUCH AMOUNT. ANY SUCH LETTER OF CREDIT SHALL BE ON TERMS
AND CONDITIONS REASONABLY ACCEPTABLE TO THE MEMBERS AND TO THE
PROVIDER OF THE CONSTRUCTION FINANCING, BUT IN ANY EVENT, EACH SUCH
LETTER OF CREDIT SHALL PROVIDE THAT THE LETTER OF CREDIT MAY BE DRAWN
IF, BUT ONLY IF, THE RESPECTIVE MEMBER SHALL FAIL TO CONTRIBUTE THE
CAPITAL CONTRIBUTION SECURED BY SUCH LETTER OF CREDIT AT THE TIME
REQUIRED BY EITHER THE MANAGING MEMBER OR BY THE PROVIDER OF
CONSTRUCTION FINANCING PURSUANT TO THE EXPRESS TERMS OF THE
CONSTRUCTION FINANCING. THE PARTIES ACKNOWLEDGE AND AGREE THAT
PURSUANT TO THE TERMS OF THE CONSTRUCTION FINANCING, THE COMPANY MAY
BE REQUIRED TO FUND IN BALANCE CONTRIBUTIONS (THE AGGREGATE AMOUNT OF
SUCH CONTRIBUTIONS HEREIN REFERRED TO AS "IN BALANCE CONTRIBUTIONS")
BASED ON ONE OR MORE REVISED ESTIMATES THAT TOTAL PROJECT COSTS WILL
BE IN EXCESS OF $1,035,000,000 (EXCLUDING THE ITEMS SET FORTH IN
SECTION 3.3(b) SUBPARTS (i), (ii) AND (iii) BELOW). IN THE EVENT THE
PROVIDER OF CONSTRUCTION FINANCING REQUIRES ANY SUCH IN BALANCE
CONTRIBUTIONS, BOYD SUB SHALL MAKE SUCH IN BALANCE CONTRIBUTIONS. FOR
PURPOSES OF THIS AGREEMENT, IN BALANCE CONTRIBUTIONS SHALL BE
CONSIDERED AS ADDITIONAL CAPITAL CONTRIBUTIONS BY BOYD SUB. UPON THE
FINAL COMPLETION OF THE PROJECT IN ACCORDANCE WITH THE TERMS HEREOF
AND TERMINATION OF ANY REMAINING LIABILITY UNDER EACH MEMBER'S STANDBY
LETTER
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OF CREDIT, IN ORDER TO PROPERLY REFLECT THE CAPITAL CONTRIBUTIONS OF
THE MEMBERS, IF ANY IN BALANCE CONTRIBUTIONS HAVE BEEN MADE BY BOYD
SUB, TO THE EXTENT THAT ANY SUCH IN BALANCE CONTRIBUTIONS WERE NOT
ACTUALLY NEEDED IN ORDER TO FUND PROJECT COSTS IN EXCESS OF
$1,035,000,000 (EXCLUDING FOR PURPOSES HEREOF ANY PROJECT COSTS OF THE
TYPE SET FORTH IN SECTION 3.3(b) SUBPARTS (i), (ii) OR (iii) BELOW,
WHICH ITEMS ARE NOT THE SOLE RESPONSIBILITY OF BOYD SUB PURSUANT TO
THE TERMS HEREOF) (A "BOYD SUB OVERPAYMENT"), THEN MRI SHALL CAUSE MR
SUB TO REIMBURSE BOYD SUB DIRECTLY OUTSIDE OF THE COMPANY AN AMOUNT
EQUAL TO ONE-HALF (1/2) OF THE BOYD SUB OVERPAYMENT (THE "MR SUB
REIMBURSEMENT"). AT SUCH TIME, MR SUB'S CAPITAL ACCOUNT SHALL BE
INCREASED BY THE AMOUNT OF THE MR SUB REIMBURSEMENT, AND BOYD SUB'S
CAPITAL ACCOUNT SHALL BE REDUCED BY THE AMOUNT OF SUCH MR SUB
REIMBURSEMENT. IN NO EVENT SHALL MR SUB BE REQUIRED TO MAKE THE MR SUB
REIMBURSEMENT TO THE EXTENT THAT THE TOTAL ADDITIONAL CAPITAL
CONTRIBUTIONS MADE BY MR SUB PURSUANT TO THIS SECTION 3.3(a),
INCLUDING ANY REMAINING LIABILITY UNDER MR SUB'S STANDBY LETTER OF
CREDIT, PLUS THE AMOUNT OF THE MR SUB REIMBURSEMENT, WOULD EXCEED
$117,000,000.
I. A new Section 3.3(f) shall be added to the Joint Venture
Agreement as follows:
"(f) IN THE EVENT THAT ANY PROVIDER OF CONSTRUCTION FINANCING
BECOMES A "DEFAULTING LENDER" OR A "DISQUALIFIED LENDER" (AS SUCH
TERMS ARE DEFINED IN THE CONSTRUCTION FINANCING DOCUMENTS) AND A
REPLACEMENT LENDER HAS NOT ASSUMED THE COMMITMENT OF SUCH DEFAULTING
LENDER OR DISQUALIFIED LENDER, THEN EACH MEMBER SHALL FUND ONE-HALF OF
THE LOANS OF SUCH DEFAULTING LENDER OR DISQUALIFIED LENDER AS AND WHEN
LOANS ARE REQUIRED TO BE FUNDED UNDER THE CONSTRUCTION FINANCING, AND
SHALL THEREBY ASSUME THE RIGHTS AND OBLIGATIONS (OTHER THAN VOTING
RIGHTS) OF SUCH DEFAULTING LENDER OR DISQUALIFIED LENDER. THE MANAGING
MEMBER SHALL USE REASONABLE COMMERCIAL EFFORTS AS PROMPTLY AS
PRACTICABLE TO FIND AN ELIGIBLE ASSIGNEE UNDER THE TERMS OF THE
CONSTRUCTION FINANCING TO ASSUME THE COMMITMENTS OF THE DEFAULTING
LENDER OR DISQUALIFIED LENDER AND TO PURCHASE THE LOANS MADE BY THE
MEMBERS AS CONTEMPLATED BY THIS SECTION 3.3(f)."
J. Section 7.13 shall be added to the Joint Venture Agreement as
follows:
"SECTION 7.13 CONSOLIDATED RECORDS. THE BOOKS, RECORDS, REPORTS, AND
RETURNS CONTEMPLATED BY THIS SECTION 7 SHALL INCLUDE MDDC."
K. Section 9.1 of the Joint Venture Agreement shall be amended to
add subsection (n) as follows:
"(n) OVERSEE, OPERATE AND MANAGE THE COMPANY'S SUBSIDIARIES, INCLUDING
WITHOUT LIMITATION, MDDC, AND TAKE ACTIONS WITH RESPECT TO SUCH
SUBSIDIARIES AS ARE CONTEMPLATED UNDER SUBSECTIONS (a)-(m) ABOVE."
L. Section 9.2 of the Joint Venture Agreement shall be amended to
add subsection (r) as follows:
"(r) TRANSFER (AS DEFINED IN SECTION 11.1, BELOW) ANY INTEREST IN ANY
SUBSIDIARY, INCLUDING MDDC, OR ISSUE ANY INTEREST IN SUCH SUBSIDIARY,
OR TAKE ANY ACTION DESCRIBED IN SUBSECTIONS (a)-(q), ABOVE, THROUGH,
ON BEHALF OF OR WITH RESPECT TO SUCH SUBSIDIARY."
M. Sections 11.2(c), 13.1(d) and 14.9 of the Joint Venture Agreement
are deleted in their entirety and amended to read "Intentionally Omitted".
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4. DIRECTION AND CONSENT WITH REGARD TO CERTAIN OBLIGATIONS.
A. DIRECTION AND CONSENT WITH REGARD TO CAPITAL CONTRIBUTIONS.
Holding hereby authorizes and directs MR Sub and Boyd Sub, and MR Sub and Boyd
Sub hereby acknowledge and agree to comply with such authorization and
direction, as follows: whenever the Operating Agreement requires either MR Sub
or Boyd Sub to make a capital contribution to Holding, including without
limitation, the capital contributions required under Article 3 of the Operating
Agreement (to the extent not previously made to MDDC or the Joint Venture), MR
Sub or Boyd Sub, as the case may be, must and shall fulfill its obligation to
make such capital contribution by contributing the required capital to MDDC,
rather than directly to Holding. Notwithstanding the foregoing, the Parties
hereby acknowledge that the Property (as defined in the Joint Venture Agreement)
has been previously contributed by MR Sub to the Joint Venture, and pursuant to
the Merger, the Property is now held by MDDC.
B. AUTHORIZATION AND CONSENT WITH REGARD TO OTHER OBLIGATIONS. The
Parties hereby acknowledge and agree that whenever the Operating Agreement
establishes rights and obligations of Boyd Sub and/or MR Sub to, or with respect
to, Holding, including, without limitation, such rights and obligations
regarding: (1) the Road Development Agreement; (2) the Special Revenue Bonds;
(3) the Ordinance; (4) the Employee Parking Lot and Option regarding same; (5)
the Jobs and Business Opportunities Program; and (6) the CRDA funds (as each
such term is defined in the Operating Agreement), Holding shall have the sole
right and discretion to authorize and direct either or both of MR Sub and Boyd
Sub, and MR Sub and/or Boyd Sub, as the case may be, shall comply with such
authorization and direction, to perform or fulfill such obligations as to MDDC,
rather than directly as to Holding.
C. CONTINUED RESPONSIBILITY FOR CERTAIN COSTS. The Parties hereby
acknowledge and agree that nothing in this Section 4 is intended to, and shall
not be construed to, relieve either Boyd Sub or MR Sub from any responsibility
for the payment of certain costs and expenses as specified in the Operating
Agreement, solely as the result of Holding's authorization and direction to
contribute or perform as to MDDC, rather than directly to Holding including,
without limitation, MR Sub's sole responsibility to pay all real property
transfer taxes or fees and any other costs and expenses of conveying the
Property (as defined in the Operating Agreement) to MDDC.
D. CONFIRMATION OF ALLOCATIONS. The Parties hereby acknowledge and
agree that (1) nothing set forth in this Agreement is intended to amend, revise
or alter (A) the allocation of Profits and Losses and the respective Capital
Accounts (as such terms are defined in the Operating Agreement) of MR Sub or
Boyd Sub; or (B) the special allocations set forth in Section 5.2 of the
Operating Agreement; and (2) the terms and conditions of the Operating Agreement
shall govern and prevail with respect to the allocations referenced in the
provisions of Section 4.D(1) immediately above.
5. NO VIOLATION. The Parties hereby acknowledge and agree that nothing in
this Agreement, including Holding's authorization and direction with regard to
capital contributions set forth in Section 4A above or Holding's right to make
future directions with regard to capital contributions and the fulfillment of
performance obligations set forth in Section 4B above is in violation, or
constitutes a breach, of any provision of the Operating Agreement including,
without limitation, any provision of Section 3.4(b), Section 9.3 or Article 11.
6. REPRESENTATIONS AND WARRANTIES OF MR SUB. MR Sub hereby restates and
confirms as of the Effective Date all of the representations and warranties made
by MR Sub in the Joint Venture Agreement, including but not limited to the
representations and warranties in Section 10.1 thereof. In addition, MR Sub
hereby represents and warrants to Holding and to Boyd Sub, as follows:
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A. NO FURTHER APPROVAL. All corporate action required to be taken by
MR Sub to enter into and carry out the terms of this Agreement has been taken
and, except as otherwise provided or contemplated in this Agreement, no further
approval of any governmental agency, court or other body is necessary in order
to permit MR Sub to enter into and carry out the terms of this Agreement.
B. DUE EXECUTION; BINDING OBLIGATION. This Agreement has been duly
executed and delivered by MR Sub and constitutes the legal, valid and binding
obligation of MR Sub, enforceable in accordance with its terms (subject to
applicable bankruptcy, insolvency, moratorium or similar laws affecting
creditors' rights generally, equitable principles and judicial discretion).
C. NO VIOLATION. To the best of MR Sub's knowledge, neither the
execution and delivery of this Agreement, nor the performance of its obligations
hereunder, has resulted or will result in any violation of, or default under,
the certificate of incorporation or by-laws of MR Sub or any indenture, trust
agreement, mortgage or other agreement or any permit, judgment, decree or order
to which MR Sub is a party or by which it is bound and there is no default and
no event or omission has occurred which, with the passage of time or the giving
of notice or both, would constitute a default on the part of MR Sub under this
Agreement.
D. NO PROCEEDINGS. To the best of MR Sub's knowledge, there is no
action, proceeding or investigation, pending or threatened, which questions the
validity or enforceability of this Agreement as to MR Sub.
E. NO LIENS. All of the MDDC Membership Interests owned by MR Sub
are currently owned, and are being contributed to Holding, free and clear of all
Liens.
7. REPRESENTATIONS AND WARRANTIES OF BOYD SUB. Boyd Sub hereby restates
and confirms as of the Effective Date all of the representations and warranties
made by Boyd Sub in the Joint Venture Agreement, including but not limited to
the representations and warranties in Section 10.2 thereof. In addition, Boyd
Sub hereby represents and warrants to MR Sub and Holding, as follows:
A. NO FURTHER APPROVAL. All corporate action required to be taken by
Boyd Sub to enter into and carry out the terms of this Agreement has been taken
and, except as otherwise provided or contemplated in this Agreement, no further
approval of any governmental agency, court or other body is necessary in order
to permit Boyd Sub to enter into and carry out the terms of this Agreement.
B. DUE EXECUTION; BINDING OBLIGATION. This Agreement has been duly
executed and delivered by Boyd Sub and constitutes the legal, valid and binding
obligation of Boyd Sub, enforceable in accordance with its terms (subject to
applicable bankruptcy, insolvency, moratorium or similar laws affecting
creditors' rights generally, equitable principles and judicial discretion).
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C. NO VIOLATION. To the best of Boyd Sub's knowledge, neither the
execution and delivery of this Agreement, nor the performance of its obligations
hereunder, has resulted or will result in any violation of, or default under,
the certificate of incorporation or by-laws of Boyd Sub or any indenture, trust
agreement, mortgage or other agreement or any permit, judgment, decree or order
to which Boyd Sub is a party or by which it is bound and there is no default and
no event or omission has occurred which, with the passage of time or the giving
of notice or both, would constitute a default on the part of Boyd Sub under this
Agreement.
D. NO PROCEEDINGS. To the best of Boyd Sub's knowledge, there is no
action, proceeding or investigation, pending or threatened, which questions the
validity or enforceability of this Agreement as to Boyd Sub.
E. NO LIENS. All of the MDDC Membership Interests owned by Boyd Sub
are currently owned, and are being contributed to Holding, free and clear of all
Liens.
8. RATIFICATION AND CONFIRMATION . Except as, and to the extent, amended
in accordance with the terms of this Agreement, all other provisions of the
Joint Venture Agreement are hereby ratified and confirmed by the Parties as
provisions of the Operating Agreement. To the extent that this Agreement
expressly conflicts with the Joint Venture Agreement, the terms of this
Agreement shall prevail. Notwithstanding the foregoing, it is the Parties'
intent that the transactions described in the Recitals not substantively change
the rights and obligations as set forth in the Joint Venture Agreement prior to
the date hereof.
9. MISCELLANEOUS PROVISIONS.
A. AMENDMENTS. The provisions of this Agreement may not be waived,
amended or repealed, in whole or in part, by any of the Parties, except with the
written consent of each of the Parties.
B. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on, and
inure to the benefit of, the Parties and their respective legal representatives,
successors and permitted transferees and assigns.
C. SEVERABILITY. Each provision of this Agreement is intended to be
severable. If any term or provision hereof is held to be illegal or invalid for
any reason, such illegality or invalidity shall not affect the legality or
validity of the remainder of this Agreement.
D. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
E. ENTIRE AGREEMENT; NO ASSIGNMENT. This Agreement, including the
Joint Venture Agreement as revised in accordance with the terms of this
Agreement, constitutes the complete and exclusive statement of the agreement
among the Parties with regard to its subject matter. No Party may assign its
rights or obligations under this Agreement to any other person or entity without
the prior written consent of each of the other Parties and any attempt to do so
will be null and void as of the inception and of no effect.
F. FURTHER ASSURANCES. Each of the Parties agrees to perform any
further acts and execute, acknowledge and deliver any documents or instruments
which
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may be reasonably necessary or appropriate to carry out the provisions of this
Agreement.
G. GOVERNING LAW AND CHOICE OF FORUM. This Agreement shall be
governed by and construed in accordance with the laws of the State of New Jersey
without regard to its conflict of laws principles. In the event of any
litigation between or among any of the Parties concerning or arising out of this
Agreement, the Parties hereby consent to the exclusive jurisdiction of the
federal and state courts in New Jersey.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
Effective Date.
MARINA DISTRICT DEVELOPMENT
HOLDING CO., LLC
By Its Members:
MAC, CORP., Member
By: PETER C. WALSH
----------------------------------------
Peter C. Walsh, Assistant Secretary
Boyd Atlantic City, Inc., Member
By: ELLIS LANDAU
----------------------------------------
Ellis Landau
Vice President, Treasurer and Chief
Financial Officer
MAC, CORP.
By: PETER C. WALSH
----------------------------------------
Peter C. Walsh, Assistant Secretary
BOYD ATLANTIC CITY, INC.
By: ELLIS LANDAU
----------------------------------------
Ellis Landau
Vice President, Treasurer and Chief
Financial Officer
[signatures continued on next page]
Marina District Development Company, LLC,
hereby
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acknowledges and consents to the terms
of this Agreement.
Marina District Development
Company, LLC
By Its Members:
MAC, CORP., Member
By: PETER C. WALSH
----------------------------------------
Peter C. Walsh, Assistant Secretary
Boyd Atlantic City, Inc., Member
By: ELLIS LANDAU
----------------------------------------
Ellis Landau
Vice President, Treasurer and Chief
Financial Officer
Each of the undersigned, Mirage Resorts, Incorporated and Boyd Gaming
Corporation, hereby (1) acknowledges and consents to the terms of this
Agreement; and (2) reaffirms the continuing existence of its respective
obligations under the Joint Venture Agreement, which obligations shall remain
unchanged by virtue of the Merger, this Agreement or any transactions
contemplated in connection with either the Merger or this Agreement.
Mirage Resorts, Incorporated
By: GARY N. JACOBS
----------------------------------------
Name/Title: Gary N. Jacobs
Assistant Secretary
Boyd Gaming Corporation
By: ELLIS LANDAU
----------------------------------------
Ellis Landau
Executive Vice President, Treasurer and
Chief Financial Officer
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