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EXHIBIT 10.30
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 XXXX ATLANTIC CITY, INC., a New Jersey corporation ("Xxxx Sub") (Holding, MR
Sub and Xxxx Sub each, a "Party" and collectively, the "Parties").
BACKGROUND
A. MR Sub and Xxxx Sub were the sole, equal general partners in Marina
District Development Company, a New Jersey general partnership (the "Joint
Venture").
B. MR Sub and Xxxx 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 Xxxx 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 Xxxx 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 Xxxx Sub (the "Joint Venture Agreement"), as amended in
accordance with this Agreement; and (iii) MR Sub and Xxxx 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 Xxxx 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.
2. CONTRIBUTION OF MDDC MEMBERSHIP INTERESTS. Each of MR Sub and Xxxx
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.
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3. ADOPTION OF JOINT VENTURE AGREEMENT AS OPERATING AGREEMENT. MR Sub
and Xxxx 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:
"Member" and "Members" means, individually or collectively, as
applicable, MR Sub and Xxxx Sub or any successor to either Party by
Transfer expressly permitted by this Agreement.
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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 Xxxx 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, Xxxx
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, Xxxx Sub shall make such In Balance Contributions.
For purposes of this Agreement, In Balance Contributions shall be
considered as additional capital contributions by Xxxx 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 of credit, in order to properly reflect the capital
contributions of the Members, if any In Balance Contributions have
been made by Xxxx 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
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Xxxx Sub pursuant to the terms hereof) (a "Xxxx Sub Overpayment"),
then MRI shall cause MR Sub to reimburse Xxxx Sub directly outside
of the Company an amount equal to one-half (1/2) of the Xxxx 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 Xxxx 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 Xxxx Sub, and MR Sub and Xxxx
Sub hereby acknowledge and agree to comply with such authorization and
direction, as follows: whenever the Operating Agreement requires either MR Sub
or Xxxx 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 Xxxx 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 Xxxx 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 Xxxx
Sub, and MR Sub and/or Xxxx 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 Xxxx 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
Xxxx 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.
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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 Xxxx Sub, as follows:
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 XXXX SUB. Xxxx Sub hereby restates
and confirms as of the Effective Date all of the representations and warranties
made by Xxxx Sub in the Joint Venture Agreement, including but not limited to
the representations and warranties in Section 10.2 thereof. In addition, Xxxx
Sub hereby represents and warrants to MR Sub and Holding, as follows:
A. No Further Approval. All corporate action required to be taken by
Xxxx 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 Xxxx 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 Xxxx Sub and constitutes the legal, valid and binding
obligation of Xxxx 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 Xxxx 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 Xxxx Sub or any indenture, trust
agreement, mortgage or other agreement or any permit, judgment, decree or order
to which Xxxx 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 Xxxx Sub under this
Agreement.
D. No Proceedings. To the best of Xxxx Sub's knowledge, there is no
action, proceeding or investigation, pending or threatened, which questions the
validity or enforceability of this Agreement as to Xxxx Sub.
E. No Liens. All of the MDDC Membership Interests owned by Xxxx 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 may be reasonably necessary or appropriate to carry out the provisions of
this Agreement.
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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:
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Xxxxx X. Xxxxx, Assistant
Secretary
Xxxx Atlantic City, Inc., Member
By:
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Xxxxx Xxxxxx
Vice President, Treasurer and
Chief Financial Officer
MAC, CORP.
By:
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Xxxxx X. Xxxxx, Assistant
Secretary
XXXX ATLANTIC CITY, INC.
By:
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Xxxxx Xxxxxx
Vice President, Treasurer and
Chief Financial Officer
[signatures continued on next page]
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Marina District Development Company, LLC, hereby acknowledges and
consents to the terms of this Agreement.
Marina District Development
Company, LLC
By Its Members:
MAC, CORP., Member
By:
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Xxxxx X. Xxxxx, Assistant
Secretary
Xxxx Atlantic City, Inc., Member
By:
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Xxxxx Xxxxxx
Vice President, Treasurer and
Chief Financial Officer
Each of the undersigned, Mirage Resorts, Incorporated and Xxxx 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:
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Name/Title:
Xxxx Gaming Corporation
By:
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Xxxxx Xxxxxx
Executive Vice President,
Treasurer and Chief
Financial Officer
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