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EXHIBIT 10.31
TERMINATION AND TRANSITION AGREEMENT
This Agreement is dated as of October _____, 1999 and is between
the Mississippi Band of Choctaw Indians (the "Tribe") and Boyd Mississippi, Inc.
("Boyd"). Whereas, the Tribe and Boyd previously entered into a Management
Agreement, dated as of November 1, 1993, as previously amended (the "Management
Agreement") that the parties now desire to terminate on the terms and conditions
set forth herein. Now, therefore, the parties agree as follows:
ARTICLE 1
TERMINATION
In accordance with Section 7.3 of the Management Agreement and in
consideration of, and conditional upon, the payment of all of the payments to be
made pursuant to Article 2 , the parties agree that the Management Agreement
shall terminate effective as of 11:59 p.m., January 31, 2000 ("Termination
Date"). Such termination shall not relieve either party of obligations arising
out of the Management Agreement in connection with management services provided
by Boyd under the Management Agreement prior to the Termination Date, including,
without limitation, obligations of indemnification, payment for pre-termination
services, and rights and obligations with respect to the Claims Reserve, which
are intended to survive termination of the Management Agreement.
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ARTICLE 2
TERMINATION PAYMENTS AND ADJUSTMENTS
Subject to the adjustments and retentions set forth in this
Agreement, the Tribe shall pay Boyd, in cash by wire transfer, as follows:
(a) Estimated January Management Fee ("Management Fee") payable
in cash by wire transfer to Boyd on February 2, 2000, in the event Boyd has
fully and completely closed the accounting books of Silver Star on or before
February 2, 2000. In the event Boyd has not fully and completely closed the
accounting books of Silver Star on or before February 2, 2000, the Management
Fee shall be paid to Boyd within two (2) business days after Boyd has fully and
completely closed the accounting books of Silver Star, which shall be closed not
later February 23, 2000, with payment not later than February 25, 2000, subject
to the retention in Article 3;
(b) The balance of principal plus any accrued interest due for
the outstanding facilities expansion loan by Boyd to the Tribe and/or Silver
Star payable in cash by wire transfer to Boyd on February 1, 2000;
(c) Any accounts payable due to Boyd that have been properly
documented and substantiated as of February 1, 2000, payable in cash by wire
transfer to Boyd on February 1, 2000. In the event some or all of the accounts
payable are not supported by proper documentation and substantiation, such
accounts payable shall be paid to Boyd within two (2) business days after the
receipt by the Tribe of proper documentation and substantiation, but not later
than February 25, 2000;
(d) A termination payment ("Termination Payment") payable in cash
by wire transfer to Boyd on February 1, 2000, in the aggregate amount of
Seventy-Two Million Dollars ($72,000,000).
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(e) Boyd and the Tribe agree to review the audit results within
five (5 ) business days of completion of the audit. Boyd and the Tribe will
mutually agree on any required adjustments to the Management Fee resulting from
the audit. Boyd and the Tribe agree that if the total of all such adjustments
agreed to are less than $200,000, then no adjustment shall be made to the
Retention Account. If the total of all such adjustments agreed to exceed
$200,000 then the total of all adjustments agreed to shall cause the Retention
Account to be adjusted as follows:
(i) If the total adjustments cause Net Total Revenues to
increase, then the Tribe shall deposit into the Retention
Account 40% of such adjustments.
(ii) If the total adjustments cause Total Net Revenues to
decrease, then 40% of such decrease shall be paid to the
Tribe from the Retention Account. To the extent that the
Retention Account is not sufficient to cover such
adjustments, Boyd agrees to fund any shortfall.
After all adjustments as described in (i) and (ii) are complete,
then the balance of the Retention Account, including all accrued
interest, is payable to Boyd.
(f) The parties shall jointly prepare a list of required
maintenance and repair projects on or before December 1, 1999. Such list shall
be compiled based on normal maintenance and repairs consistent with prior
practice and shall not include items which would be considered capital in nature
consistent with prior practice. The budgeted amount of each required maintenance
and repair project, to the extent not completed, shall be accrued as of the
Termination Date on the accounting books of Silver Star.
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(g) Any prepaid items subject to refund shall be reconciled on or
before the Termination Date. Any refunds of prepaid Silver Star expense items
paid under the Management Agreement shall be retained by the Tribe or paid over
to the Tribe by Boyd. Any amounts due the Tribe shall be paid by Boyd on
February 1, 2000.
(h) Boyd shall terminate Silver Star's insurance policies
effective as of the Termination Date and the Tribe shall procure its own
insurance without any adjustment to the Termination Payment.
(i) Boyd shall provide the Tribe with written notice containing
instructions for the wire transfers provided by this Article 2 on or before
January 20, 2000.
(j) The Tribe shall provide Boyd with evidence of the
availability of funds to make the wire transfer payments set forth in this
Article 2, either by providing evidence of cash available to make such payments
or binding loan commitment letter, on or before December 17, 1999.
ARTICLE 3
RETENTION.
Boyd and the Tribe agree that Seven Hundred Fifty Thousand
Dollars ($750,000) of the Management Fee shall be withheld and placed in an
interest-bearing account ("Retention Account") established at Trustmark National
Bank. The Retention Account shall be established pursuant to an Escrow Agreement
in substantially the form attached hereto as Exhibit A and shall be in addition
to and not in substitution for the Claims Reserve to be maintained and
distributed in accordance with Article 4 of the Management Agreement. The
Retention Account shall be maintained until the final resolution of any audit
differences as described in Article 2.
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ARTICLE 4
TRANSITION MATTERS
4.1 Transition Plan. The parties agree to cooperate with each
other in good faith in order to facilitate, to the best of their respective
abilities, a smooth transition of the management control of the Silver Star
facilities from Boyd to the Tribe as soon as can be accomplished. Such
cooperation includes, without limitation, the parties' agreement to implement
and substantially comply with a Transition Plan in substantially the form
attached hereto as Exhibit B for management transition and transition of custody
of assets.
4.2 General Manager. The Tribe shall notify Boyd at least ten
(10) days prior to the arrival of its new General Manager at the Silver Star
facilities. Boyd shall use its best efforts to assist in the assimilation and
familiarization of the Tribe's General Manager on the management aspects of the
Silver Star operations and facilities.
4.3 Employee Access. Boyd shall afford the Tribe reasonable
access to employees working in the Silver Star facilities for education and
transition communications purposes. All such access shall be coordinated with
Boyd's General Manager and shall not interfere with the normal business
operations of Silver Star.
4.4 COBRA Matters. With respect to employees (and their
dependents) of Boyd who experienced a qualifying event (as defined in Section
4980B(f)(3) of the Internal Revenue Code of 1986) prior to February 1, 2000,
Boyd shall have full and complete responsibility for compliance with the
provisions of Section 4980B of the Internal Revenue Code of 1986 and Sections
601-607 of the Employee Retirement Income Security Act (ERISA) (collectively
referred to as COBRA
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continuation coverage), including, but not limited to, provision of required
notices, coverage under health plan, correct calculation of premium, and correct
duration of COBRA coverage. Those Silver Star employees retained by the Tribe
who are currently eligible for health care benefits shall be immediately
eligible for coverage in the Tribe's health plan. With respect to individuals
currently employed at Silver Star who remain employed by Boyd after February 1,
2000, the Tribe shall have no liability or responsibility for provision of or
compliance with COBRA.
4.5 Health Care Matters. Effective February 1, 2000, Silver Star
employees hired by the Tribe will no longer be eligible for future health care
coverage provided by Boyd, except as required by federal or state law, or under
written agreement between the applicable employees and Boyd or between the Tribe
and Boyd. Notwithstanding the foregoing, claims incurred by Silver Star
employees covered under the Boyd health plan (and their covered dependents)
prior to February 1, 2000, but not submitted for payment or reported until after
January 31, 2000; shall be covered by the Boyd health plan, if submitted to
PERCS at 2950 Industrial Road, Las Vegas, Nevada 89109 no later than April 30,
2001. Boyd and the Boyd health plan will continue to have responsibility, under
relevant federal and state law, for any claims submitted with respect to
services or other charges incurred prior to February 1, 2000; regardless of the
status of the claim, adjudication, appeal or any legal proceeding arising out of
said claim. Boyd agrees that it will continue to provide administrative
services, through PERCS (a unit of Boyd) for claims processing for claims
incurred prior to Feb. 1, 2000, but not reported until after January 31, 2000
for Silver Star employees and their covered dependents, such services to be
provided for 15 months after January 31, 2000. Other than through its
participation in the Medical Claims Account described below, the Tribe will have
no liability or responsibility for any health care plan claims submitted by
Silver Star employees or their covered
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dependents with respect to services or other charges incurred prior to February
1, 2000, regardless of the status of the claim, adjudication, appeal or any
legal proceeding arising out of said claim.
Within two (2) business days after the closing of the accounting
books of Silver Star, the Tribe shall deposit the amount accrued in the
accounting books of Silver Star as of the Termination Date for the payment of
claims and related expenses for amounts incurred by Silver Star employees and
their covered dependents under the Boyd health plan prior to February 1, 2000
but not reported until after January 31, 2000 into a segregated bank account
(the "Medical Claims Account"). Such claims shall be eligible for payment from
the Medical Claims Account if submitted on or before 15 months after January 31,
2000. After all of the funds in the Medical Claims Account are paid for claims
and expenses attributable to Silver Star employees and their covered dependents,
there will be contributed, in the proportion of sixty percent (60%) by the Tribe
and forty percent (40%) by Boyd, an amount equal to the actual claims and
expenses attributable to Silver Star employees and their covered dependents
until the expiration of the fifteen (15) month period after the Termination
Date.
4.6 Employment Matters. Except as provided below, no later than
January 31, 2000, Boyd will deliver possession to the Tribe of all personnel
records of its former and current employees of the Silver Star, provided that
Boyd shall have the right to have reasonable access to such personnel records
during normal business hours. Boyd will provide a master list of all personnel
records delivered to the Tribe. Boyd may retain copies of personnel records of
former and current Silver Star employees, provided that Boyd provides the Tribe
with a list of copied personnel
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records it has retained. However, Boyd will retain, and provide the Tribe with
copies of, personnel records of current Silver Star employees who will remain
Boyd employees after January 31, 2000. Boyd shall provide all notices required
by law, including but not limited to Warn Act notices.
4.7 Contracts and Obligations. All contracts entered into by Boyd
on behalf of the Tribe in accordance with Article 3 of the Management Agreement
shall be fully assigned to and assumed by the Tribe as of the Termination Date,
and Boyd shall thereafter retain no rights or responsibilities with respect to
such contracts. The Tribe shall indemnify and hold Boyd harmless against any
damages, costs, expenses or liabilities arising out of any third party claim
against Boyd based on or relating to the Tribe's operation of the Silver Star
facilities or any other property owned by the Tribe to the extent based upon
acts, omissions or events occurring after the Termination Date,. but excluding
claims based on Boyd's use or management of the Silver Star Facilities prior to
the Termination Date.
4.8 Further Indemnification. The Tribe shall indemnify Boyd
against expenses and obligations incurred after the Termination Date that are
properly allocable to the Tribe pursuant to this Agreement. Boyd shall indemnify
the Tribe against expenses and obligations incurred after the Termination Date
that are properly allocable to Boyd pursuant to this Agreement.
ARTICLE 5
DISPUTE RESOLUTION
5.1 Disputes. Without limiting other remedies expressly provided
in this Agreement, in the event that either party believes that the other party
has failed to comply with any requirement of this Agreement, or has incorrectly
calculated adjustments pursuant to Article 2 or
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wrongly made payments from the Retention Account, the procedures in Sections
5.2, 5.3 and 5.4 shall be utilized.
5.2 Notice. The party asserting noncompliance shall serve written
notice on the other party. The notice shall identify the specific provision
alleged to have been violated. Thereafter, Boyd and the Tribe shall meet within
ten (10) days in an effort to resolve the dispute.
5.3 Arbitration. In the event the dispute is not resolved to the
satisfaction of the parties within thirty (30) days after service of the notice
set forth in Section 5.2 above, and the amount in controversy is $250,000, or
less, then the dispute shall be resolved through arbitration, as follows:
(a) The parties shall agree upon one arbitrator.
(b) If the parties are unable to so agree, the Tribe and Boyd
shall each select one arbitrator, who thereafter shall select a
third arbitrator with expertise in the subject matter of the
dispute, and the three arbitrators so selected shall arbitrate the
dispute. In the event the two arbitrators selected by the parties
are unable to agree on a third arbitrator, the third arbitrator
shall be an attorney appointed by the American Arbitration
Association.
(c) The arbitrator(s) shall meet with the parties immediately
after his or their appointment to determine a schedule and
procedures for arbitration, including whether and to what extent
discovery is required, but recognizing that one of the purposes of
this dispute resolution process is to minimize the time and expense
that would otherwise be incurred in judicial proceedings. The
arbitrator(s) may set the matter for an evidentiary hearing, or oral
argument, or may determine to dispose of
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the dispute based upon written submissions only. If an evidentiary
hearing is held, the normal rules of evidence shall be relaxed,
pursuant to the arbitrator's discretion. All parties shall have the
right to participate in the hearing and may determine the most
effective and efficient method for the presentation of their case.
The parties may present evidence through live testimony, written
report and affidavits, or the argument of counsel or its
representative at the hearing. The parties may be represented by any
person of their choice at proceedings before the arbitrator(s),
irrespective of whether the representative is an attorney.
(d) The cost of arbitration fees paid to the arbitrator(s)
shall be shared equally by the parties, unless the arbitrator(s)
award such cost to the prevailing party. All parties shall bear
their own costs and attorney fees associated with their
participation in arbitration. The decision of the arbitrator(s)
shall be final and non-reviewable and judgment upon the award
rendered by the arbitrator(s) may be entered in a court subject to
the provisions of Section 6.9 of this Agreement.
(e) Any party may pursue any remedy which is otherwise
available to that party to enforce orders of the arbitrator(s) in
the event voluntary compliance does not occur.
5.4 Suit in Federal Court. In the event of a dispute between the
parties in which the amount in controversy is greater than $250,000, and which
is not resolved to the satisfaction of the parties within thirty (30) days after
service of the notice set forth in Section 5.2 above, the parties agree to be
sued in the United States District Court in Jackson, Mississippi, the United
States Court of Appeals, and the United States Supreme Court, and the Tribe
agrees to a limited waiver of tribal
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sovereign immunity in accordance with the provisions of this Section 5.4 and the
Limited Waiver of Tribal Sovereign Immunity referenced in Section 6.9 of this
Agreement
ARTICLE 6
MISCELLANEOUS
6.1 Assignment and Subcontractors. The rights and obligations
under this Agreement shall not be assigned or subcontracted by either party
without the prior written consent of the other party. However, Boyd may assign
its rights and obligations pursuant to this Agreement to Boyd Gaming Corporation
or any wholly-owned subsidiary thereof, provided that Boyd Gaming Corporation
must guarantee performance by any of its wholly-owned subsidiaries serving as an
assignee.
6.2 Notices. Any notice, consent or other communication permitted
or required by this Agreement shall be in writing and shall be effective on the
date sent and shall be delivered by personal service, via telecopier with
reasonable evidence of transmission, express delivery or by certified or
registered mail, postage prepaid, return receipt requested, and, until written
notice of a new address or addresses is given, shall be addressed as follows:
If to the Tribe: Mississippi Band of Choctaw Indians
Attention: Tribal Chief
Tribal Office Building
Highway 16 West
P.O. Box 6010
Philadelphia, Mississippi 39350
Fax: (601) 656-1992
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If to Boyd: Boyd Mississippi, Inc.
c/o Boyd Gaming Corporation
Attention: Brian A. Larson
2950 South Industrial Road
Las Vegas, Nevada 89109-1100
Fax: (702) 792-7335
With a copy to: Boyd Gaming Corporation
Attn: Keith Smith
2950 South Industrial Blvd.
Las Vegas, Nevada 89109-1100
Fax: (702) 792-7312
Copies of any notices shall be given to the Chairman of the
Choctaw Gaming Commission, Highway 16 West, P.O. Box 6045, Tribal Office
Building, Philadelphia, Mississippi 39350.
6.3 Amendments. This Agreement may be amended only by written
instrument duly executed by both of the parties hereto and with any and all
necessary regulatory approvals previously obtained.
6.4 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 agreement.
6.5 Force Majeure. Neither party shall be in default in
performance of its obligations or duties hereunder if such failure or
performance is due to causes beyond its reasonable control, including acts of
God, war, fires, floods, accidents or any other causes,
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contingencies, or circumstances not subject to its reasonable control which
prevent or hinder performance of this Agreement.
6.6 Time is of the Essence. The parties agree that the schedule
requirements set forth in this Agreement and in the Transition Plan attached as
Exhibit B are material terms of this Agreement and that time is of the essence
to this transaction.
6.7 Further Assurances. Both parties hereto agree to do all acts
and further things and deliver necessary documents as shall from time to time be
reasonably required to carry out the terms and provisions of this Agreement.
6.8 Severability. In the event that any provision of this
Agreement is, by final order of a court of competent jurisdiction, held to be
illegal or void, the validity of the remaining portions of the Agreement shall
be enforced as if the Agreement did not contain such illegal or void clauses or
provisions, and the parties shall use their best efforts to negotiate an
amendment to this Agreement which will comply with the judicial order and
maintain the originally contemplated rights, duties and obligations of the
parties hereunder.
6.9 Sovereign Immunity. Nothing in this Agreement shall be deemed
or construed to constitute a waiver of the Tribe's sovereign immunity, and the
only applicable waiver of sovereign immunity shall be that as approved by the
Tribal Council in its Limited Waiver of Tribal Sovereign Immunity in the amount
of Seven Hundred Fifty Thousand Dollars ($750,000) until final payment of the
Retention Account at which time the amount shall reduce to Five Hundred Thousand
Dollars ($500,000) for a period of three (3) years from February 1, 2000. The
Tribe agrees that it will not amend or alter the Limited Waiver of Tribal
Sovereign Immunity which will in any way lessen the rights of Boyd as set forth
in the Limited Waiver of Tribal
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Sovereign Immunity, provided, however the Limited Waiver of Tribal
Sovereign Immunity shall be null and void three (3) years from February 1, 2000.
The form of the Limited Waiver of Tribal Sovereign Immunity is attached hereto
as Exhibit C.
6.10 Nondisclosure. The parties agree not to divulge to third
parties the terms of this Agreement or any other proprietary or confidential
information exchanged between the parties pursuant to this Agreement or pursuant
to the Management Agreement, unless (1) the information is required to be
disclosed pursuant to judicial or governmental requirements, (2) the information
is at the time of disclosure already in the public domain, or (3) to the extent
required in order to obtain financing. This prohibition shall not apply to
disclosures by either party to their respective attorneys, accountants, or other
professional advisers. In situations where disclosure of the terms of this
Agreement to regulatory, governmental or judicial entities is required by laws
or regulations, the parties will make reasonable efforts to secure confidential
treatment of the terms of this Agreement by such entities. The parties agree to
consult with each other and cooperate regarding any press releases regarding
this Agreement and the relationships described herein. Notwithstanding anything
in this Section 6.10 to the contrary, the Tribe agrees that Boyd may publicly
disclose the financial terms of this Agreement.
6.11 Representations and Warranties of Boyd. Boyd
hereby represents and warrants as follows:
(a) Boyd is a body corporate, duly organized and existing
under the Constitution and laws of the State of Nevada and is duly
qualified to do business in Mississippi and under the laws of the
Mississippi Band of Choctaw Indians.
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(b) Boyd has full legal right, power and authority under the
laws of the State of Mississippi and has taken all official action
necessary (i) to enter into this Agreement, (ii) to perform its
obligations hereunder, and (iii) to consummate all other
transactions contemplated by this Agreement.
(c) This Agreement has been duly executed and delivered by
Boyd and will constitute a valid and binding obligation, enforceable
against Boyd in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws affecting the rights of creditors generally,
or lessors, and certain judicial rulings which may affect the
Tribe's right to specific performance but which rulings do not
prevent the practical realization of the benefits intended to be
conferred hereby.
(d) The execution and delivery of this Agreement, the
performance by Boyd of its obligations hereunder and the
consummation by Boyd of the transactions contemplated hereby will
not violate any contract or agreement to which Boyd or any of its
affiliated companies is a party or any law, regulation, rule or
ordinance or any order, judgment or decree of any federal, state or
local court or require any regulatory approval.
(e) There is no action, suit, proceeding, inquiry, or
investigation pending or, to the knowledge of Boyd, threatened
against Boyd by or before any court, governmental authority or
public board or body which (i) affects or questions its existence or
the title to office of any of its officers; (ii) affects or seeks to
prohibit, restrain, or enjoin the execution and delivery of this
Agreement; (iii) affects or
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questions the validity or enforceability of this Agreement; (iv)
seriously questions the power or authority of Boyd to carry out the
transactions contemplated by, or to perform its obligations under,
this Agreement.
6.12 Representations and Warranties of Tribe. The Tribe hereby
represents and warrants as follows:
(a) The Tribe is a duly organized Indian tribe under the
Constitution and laws of the United States.
(b) The Tribe has full legal right, power and authority under
the laws of the Tribe and has taken all official Tribal Council
action necessary (i) to enter into this Agreement, (ii) to perform
its obligations hereunder, and (iii) to consummate all other
transactions contemplated by this Agreement.
(c) This Agreement, when executed and delivered by the Tribe
will constitute a valid and binding obligation, enforceable against
the Tribe in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting the rights of creditors generally, and
certain judicial rulings which may affect Boyd's right to specific
performance remedies contained herein but which rulings do not
prevent the practical realization of the benefits intended to be
conferred hereby and except as enforceability may be limited by the
express terms of any Limited Waiver of Tribal Sovereign Immunity.
(d) The execution and delivery of this Agreement, the
performance by Tribe of its obligations hereunder and the
consummation by Tribe of the
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transactions contemplated hereby will not violate any contract or
agreement to which the Tribe or its affiliated entities is a party,
law, regulation, rule or ordinance or any order, judgment or decree
of any federal, state or local court, or require any approval by
governmental authorities.
(e) There is no action, suit, proceeding, inquiry, or
investigation pending or, to the knowledge of the Tribe, threatened
against the Tribe by or before any court, governmental agency or
public board or body which (i) affects or questions its existence or
its territorial jurisdiction or the title to office of any of its
officers; (ii) affects or seeks to prohibit, restrain, or enjoin the
execution and delivery of this Agreement; (iii) affects or questions
the validity or enforceability of this Agreement; (iv) questions the
power or authority of the Tribe to carry out the transactions
contemplated by, or to perform its obligations under, this
Agreement.
(f) The Tribe shall comply with all laws and regulations and
shall comply with all terms and conditions applicable to the Tribe
of all permits, licenses, approvals and exemptions necessary for
operation of the Facilities.
6.13 Interpretation. This Agreement has been negotiated, made and
executed in Mississippi and shall be construed in accordance with the laws of
Mississippi, without regard to its conflict of laws provisions, and applicable
federal laws.
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6.14 Entire Agreement. This Agreement, including all exhibits,
represents the entire agreement between the parties with respect to termination
of the Management Agreement and is intended to supersede any inconsistent
provisions contained in the Management Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement.
MISSISSIPPI BAND OF CHOCTAW INDIANS
By:
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Phillip Martin, Chief of the
Mississippi Band of
Choctaw Indians
Attest:
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Harrison Ben, Secretary of the
Mississippi Band of Choctaw
Indians
BOYD MISSISSIPPI, INC.
By:
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William S. Boyd, President
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