INDEMNIFICATION AGREEMENT
Exhibit 10.8
THIS AGREEMENT is made as of the 31st day of March 2010, by and among Greektown Superholdings, Inc., a Delaware corporation (the “Company”), the Noteholder Plan Proponents (as defined below) and Xxxxx X. Xxxxxxx (the “Indemnitee”). Certain other terms used herein are used as defined below in Section 1 or elsewhere in this Agreement.
BACKGROUND
The Indemnitee has agreed to serve as the President, Chief Financial Officer and Treasurer of the Company for the period commencing as of the date hereof until the Effective Date, as such term is defined in the Second Amended Joint Plans of Reorganization (the “Plan”) of Greektown Holdings, L.L.C. et. al. dated December 7, 2009, as amended. As a condition to Indemnitee’s service, the Indemnitee has requested, and the Company and the Noteholder Plan Proponents have agreed, to enter into this Agreement with the Indemnitee concerning indemnification by the Company as primary obligor and the Plan Proponents as secondary obligors. Nothing herein shall require Indemnitee to continue to serve in any position with the Company.
WITNESSETH
NOW, THEREFORE, in consideration of the Indemnitee’s service as an officer of the Company after the date hereof, in consideration of the mutual covenants herein, the parties to this Agreement, intending to be legally bound, agree as follows:
1. Definitions.
“Action” means any threatened, pending or completed investigation, action, suit or proceeding (including alternative dispute mechanisms), whether brought by or in the right of the Company, a Related Company, or otherwise, and whether civil, criminal, regulatory, administrative or investigative, to which the Indemnitee is, was or at any time becomes, or is threatened to be made, a party (or otherwise involved, including as a witness), by reason of the fact that the Indemnitee at any time after the date hereof is, was or becomes an officer, director, employee, consultant or agent of the Company or any Related Company, or by reason of anything done or not done by the Indemnitee in any such capacity.
“Expenses” means any and all fees, expenses, liabilities and losses, including reasonable expenses and reasonable attorney’s fees, judgments, fines, ERISA excise taxes or penalties and any and all amounts paid or to be paid in settlement or other resolution for Actions and claims.
“Noteholder Plan Proponents” means, collectively, the entities listed on Schedule A hereto.
“Related Company” means any corporation, partnership, limited liability company, joint venture, trust or other entity as to which the Indemnitee is or was serving or at any time serves at the request of the Company as an officer, director, manager, trustee, employee, consultant or agent.
Agreement to Indemnify.
Subject to the provisions of Section 3 hereof, the Company shall, and does hereby, hold harmless and indemnify the Indemnitee from and against any and all Expenses that are actually incurred by the Indemnitee in connection with any Action.
3. Limitations on Indemnity.
(a) No indemnity pursuant to Section 2 hereof or contribution pursuant to Section 4 hereof with respect to any particular Expenses shall be paid to the Indemnitee:
(i) to the extent the Indemnitee has been previously paid for the same Expenses pursuant to any directors and officers liability insurance of the Company and/or a Related Company that is then in force and effect and not subject to reimbursement by Indemnitee;
(ii) on account of conduct by the Indemnitee as to which any of the following are established by a final nonappealable judgment: (x) Indemnitee acted in bad faith and in a manner he did not reasonably believe to be in, or not opposed to, the best interest of the Company; (y) Indemnitee committed gross negligence or willful misconduct; or (z) with respect to criminal proceedings, that Indemnitee had reasonable cause to believe his conduct to be unlawful.
(iii) if and to the extent a court having jurisdiction in the matter shall determine in a final non-appealable judgment that such indemnification is not lawful; or
(iv) for any Action brought against Indemnitee in his capacity as, or relating in any way to his conduct as, an officer, director or employee of Greektown Holdings, Inc. or any of its direct or indirect subsidiaries; it being understood that Indemnitee has the benefit of the existing indemnification obligations of those entities and the purpose of this Agreement is solely to provide indemnification for Indemnitee’s service as an officer of the Company.
4. Contribution by Noteholder Plan Proponents
(a) In the event that the Company fails to pay the Indemnitee the full amount due to Indemnitee pursuant to this Agreement (including without limitation Section 10 hereof) after 10 days written notice of demand therefore, together with appropriate substantiating documentation, the Noteholder Plan Proponents shall each contribute their pro rata share of the amount of such shortfall. The contribution by each Plan Proponent shall be made by direct payment to the Indemnitee within five business days of receipt of written notice from the Indemnitee that the Company has failed to make such payment within such 10 day period. The pro rata share of each Plan Proponent shall be calculated with reference to the percentages listed opposite the name of each Noteholder Plan Proponent’s name on Schedule A hereto. The obligation of the Plan Proponents shall not be affected by any claim that the Agreement is not enforceable against the Company.
-2-
(b) In the event that any Plan Proponent fails to contribute its pro rata share within the prescribed five business day time period (a “Defaulting Plan Proponent”), each of the Plan Proponents shall become jointly and severally liable for the amount of the shortfall and Indemnitee may make written demand on any Noteholder Plan Proponent for the full amount of such shortfall. The amount of such shortfall shall be paid by the Plan Proponent on whom demand is made (the “Substitute Plan Proponent”) within five business days of receipt of such written demand. If any Plan Proponent shall contribute more than its pro rata share, it shall have a right of action against each Defaulting Plan Proponent for the amount paid by the Substitute Plan Proponent over its pro rata share. The obligation of the Defaulting Plan Proponent to the Substitute Plan Proponent shall be due immediately after the excess payment is made by the Substitute Plan Proponent.
(c) For the avoidance of doubt, the Company, and the insurers (“D&O Insurers”) under any directors and officer’s liability insurance policy procured by the Company (to the extent such policy contains prior acts coverage) shall be considered the indemnitors of first resort with respect to indemnification under this Agreement and the Plan Proponents shall be secondary obligors.
(d) It is understood that the obligations of the Plan Proponents under this Agreement shall terminate on the Effective Date of the Plan. Notwithstanding the foregoing, any obligation of the Plan Proponents to make any payment which shall have become due, with any applicable notice period having lapsed, before the Effective Date (including an obligation in respect of a claim over against a Defaulting Plan Proponent”) shall survive the Effective Date and shall continue to be enforceable against such Plan Proponent.
(e) In the event that any Plan Proponent shall make a payment to Indemnitee hereunder, it shall be subrogated to all rights of recovery of the Indemnitee against the Company and against the D&O Insurers in respect of the indemnified amount. The Indemnitee shall fully cooperate with the Plan Proponents in enforcing any such subrogation rights at the expense of the Plan Proponents, including executing any documents reasonably requested to assist with such recovery.
5. Notice to Company; Plan Proponents; Defense of Actions; Settlement.
(a) Promptly following receipt by the Indemnitee of written notice of the commencement of any Action as to which the Indemnitee desires to make a claim against the Company under this Agreement, the Indemnitee shall notify the Company in writing of such commencement; provided, that the failure by Indemnitee to so notify the Company shall not relieve the Company of any liability hereunder except to the extent such failure actually and materially prejudices the ability of the Company to defend such Action. Any written notice required to be provided to the Company shall be deemed to have been given when personally delivered or when mailed, by certified or registered mail, to the following address (or to such other address provided to the Indemnitee in writing):
-3-
000 Xxxx Xxxxxxxxx
Xxxxxxx, XX 00000
with a copy to:
Dechert LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxx Brilliant, Esq.
(b) Any written notice required to be provided to the Indemnitee shall be deemed to have been given when personally delivered or when mailed, by certified or registered mail, to the following address (or to such other address provided to the Plan Proponents in writing):
000 Xxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
With a copy to:
Xxxxx
Xxxxx Xxxxx & Xxxxx P.C.
00000 Xxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxxxxx, XX 00000-0000
Attn: R. Xxxxxxxxxxx Xxxxxxx
(c) Any written notice required to be provided to the Plan Proponents shall be deemed to have been given when personally delivered or when mailed, by certified or registered mail, to the address of each Plan Proponent as set forth on Schedule A (or to such other address provided to the Indemnitee in writing).
(d) With respect to any Action as to which the Indemnitee has notified the Company,
(i) the Company will be entitled to participate therein at its own expense; and
(ii) the Company will be entitled to assume the defense thereof through counsel reasonably acceptable to Indemnitee and at the Company’s expense; provided that the Company shall not be entitled to assume or continue the defense of any Action (a) brought by or on behalf of the Company, (b) that the Indemnitee shall have reasonably concluded based upon advice of counsel that (1) there may separate defenses available to Indemnitee from those available to the Company where such dual representation would be adverse to the interests of
-4-
Indemnitee or (2) there is another conflict of interest between the Company and Indemnitee in the conduct of the defense of such Action or (c) that arises in connection with a criminal proceeding or a proceeding seeking equitable or injunctive relief against Indemnitee; or (d) if the Company fails to engage counsel to assume such defense in a timely manner, so as not to prejudice the rights of Indemnitee; or (e) the Company fails to conduct the defense in a manner reasonably satisfactory to the Indemnitee; provided, further, that if the Company assumes the defense of any Action, the Indemnitee will be entitled to participate therein at his own expense.
(e) Without Indemnitee’s prior written consent, the Company shall not settle any Action in any manner unless the sole relief provided is monetary damages that are paid in full by the Company or any nonmonetary relief does not adversely affect the Indemnitee. The Indemnitee shall not settle any Action in any manner without the consent of the Company and (if settled before the Effective Date), the Plan Proponents, acting by a majority, measured by their pro rata interests. Notwithstanding the foregoing, none of the parties hereto will unreasonably withhold his or its consent to any proposed settlement.
6. Indemnification Hereunder Not Exclusive.
The indemnification provided by this Agreement shall be in addition to and not exclusive of any other rights to which the Indemnitee may be entitled under any certificate or articles of incorporation, bylaws, agreement, vote of the stockholders or directors, statute or otherwise.
7. Partial Indemnification.
If the Indemnitee shall be entitled under any provision of this Agreement to indemnification by the Company for a portion of any Expenses incurred, but not (for any reason) for the total amount thereof, the Company shall indemnify the Indemnitee for such portion.
8. Separability.
If any portion of this Agreement shall be invalidated on any grounds by any court of competent jurisdiction, the Company shall nevertheless indemnify the Indemnitee to the fullest extent permitted by (a) any applicable portion of this Agreement that shall not have been invalidated, including all other portions of a Section held to contain any such invalidated provision that are not themselves specifically invalidated, and (b) any applicable law.
9. Applicable Laws.
To the extent that any laws relating to indemnification shall apply to the Company’s indemnification of the Indemnitee under this Agreement, this Agreement shall be qualified in its entirety by such laws such that, notwithstanding Section 2 and the other provisions of this Agreement, (i) this Agreement shall not extend to the Indemnitee any rights that may not be lawfully be granted by the Company under such laws and (ii) this Agreement shall provide the Indemnitee with rights to indemnification to the fullest extent as may be granted under such laws.
10. Advancement of Expenses and Final Settlement Resolution.
-5-
The right to indemnification hereunder shall include the right to have the Company advance to the Indemnitee any Expenses incurred in connection with any Action immediately upon request therefore by the Indemnitee in advance of its final disposition (including, without limitation, any and all amounts paid in settlement of any Action, subject to the receipt of required consents under Section 5(e)). However, the Indemnitee shall reimburse the Company to the extent it shall ultimately be determined by a final non-appealable court order that the indemnification of the Indemnitee for such Expenses is not lawful. In the event the Indemnitee is required to bring any action to enforce rights or to collect moneys due under this Agreement and is successful in such action, the Company shall reimburse the Indemnitee for all of the Indemnitee's Expenses in bringing and pursuing such action.
11. Continuation of Indemnity.
All agreements and obligations of the Company contained herein shall continue during the period the Indemnitee is an officer of the Company or any Related Company and shall continue thereafter so long as the Indemnitee shall be subject to any possible Action by reason of the fact that the Indemnitee was an officer of the Company or was serving in any other capacity referred to herein.
12. General.
(a) The terms and conditions of this Agreement shall be binding upon, and shall inure to the benefit of, the successors, assigns, heirs and legal or personal representatives of the parties hereto.
(b) This Agreement cannot be amended, modified, terminated or repealed except by written document signed by all parties hereto.
(c) This Agreement shall be governed in all respects by the laws of the State of Delaware, without regard to its provisions concerning conflict of laws.
(d) This Agreement may be executed and delivered in one or more counterparts, each of which when executed and delivered shall be deemed to be an original but all of which when taken together shall constitute one and the same Agreement.
(e) The Indemnitee shall not be entitled to any payment hereunder, to the extent that Indemnitee has otherwise actually received payment of the amount so indemnifiable (under insurance policy, by the Company, any Plan Proponent or otherwise).
(f) Subject to any obligations under Section 4 which explicitly survive the Effective Date, this Agreement shall terminate on the Effective Date.
-6-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and signed as of the date first written above.
| GREEKTOWN SUPERHOLDINGS, INC. | |||
| By: | /s/ Xxxxx X. Xxxxxxx |
||
|
|
Name: |
Xxxxx X. Xxxxxxx | |
|
|
Title: |
President, Chief Financial Officer | |
/s/ Xxxxx X. Xxxxxxx |
|||
| Xxxxx X. Xxxxxxx | |||
| NOTEHOLDER PLAN PROPONENTS: | |||
| XXXX XXXXXXX XXXX FUND | |||
| By: | /s/ Xxxxx Xxxxx | ||
| Name: | Xxxxx Xxxxx | ||
| Title: | President, Chief Investment Officer | ||
| XXXX XXXXXXX FUNDS II ACTIVE BOND FUND | |||
| By: | /s/ Xxxxx Xxxxx | ||
| Name: | Xxxxx Xxxxx | ||
| Title: | President, Chief Investment Officer | ||
| XXXX XXXXXXX FUNDS II HIGH INCOME FUND | |||
| By: | /s/ Xxxxx Xxxxx | ||
| Name: | Xxxxx Xxxxx | ||
| Title: | President, Chief Investment Officer | ||
[Indemnification Agreement for Xxxxx X. Xxxxxxx]
| XXXX XXXXXXX FUNDS II STRATEGIC INCOME FUND | |||
| By: | /s/ Xxxxx Xxxxx | ||
|
Name: |
Xxxxx Xxxxx |
|
|
Title: |
President, Chief Investment Officer |
|
| XXXX XXXXXXX FUNDS III LEVERAGED COMPANIES FUND | |||
| By: | /s/ Xxxxx Xxxxx | ||
| Name: | Xxxxx Xxxxx | ||
| Title: | President, Chief Investment Officer | ||
| XXXX XXXXXXX FUNDS TRUST ACTIVE BOND TRUST | |||
| By: | /s/ Xxxxx Xxxxx | ||
| Name: | Xxxxx Xxxxx | ||
| Title: | President, Chief Investment Officer | ||
| XXXX XXXXXXX HIGH YIELD FUND | |||
| By: | /s/ Xxxxx Xxxxx | ||
| Name: | Xxxxx Xxxxx | ||
| Title: | President, Chief Investment Officer | ||
| XXXX XXXXXXX INCOME SECURITIES TRUST | |||
| By: | /s/ Xxxxx Xxxxx | ||
| Name: | Xxxxx Xxxxx | ||
| Title: | President, Chief Investment Officer | ||
[Indemnification Agreement for Xxxxx X. Xxxxxxx]
| XXXX XXXXXXX INVESTORS TRUST | |||
| By: | /s/ Xxxxx Xxxxx | ||
|
Name: |
Xxxxx Xxxxx |
|
|
Title: |
President, Chief Investment Officer |
|
| XXXX XXXXXXX STRATEGIC INCOME FUND | |||
| By: | /s/ Xxxxx Xxxxx | ||
| Name: | Xxxxx Xxxxx | ||
| Title: | President, Chief Investment Officer | ||
| XXXX XXXXXXX TRUST STRATEGIC INCOME TRUST | |||
| By: | /s/ Xxxxx Xxxxx | ||
| Name: | Xxxxx Xxxxx | ||
| Title: | President, Chief Investment Officer | ||
| MANULIFE GLOBAL FUND STRATEGIC INCOME | |||
| By: | /s/ Xxxxx Xxxxx | ||
| Name: | Xxxxx Xxxxx | ||
| Title: | President, Chief Investment Officer | ||
[Indemnification Agreement for Xxxxx X. Xxxxxxx]
| MANULIFE GLOBAL FUND U.S. BOND FUND | |||
| By: | /s/ Xxxxx Xxxxx | ||
|
Name: |
Xxxxx Xxxxx |
|
|
Title: |
President, Chief Investment Officer |
|
| MANULIFE GLOBAL FUND U.S. SPECIAL BOND FUND | |||
| By: | /s/ Xxxxx Xxxxx | ||
| Name: | Xxxxx Xxxxx | ||
| Title: | President, Chief Investment Officer | ||
| BRIGADE CAPITAL MANAGEMENT | |||
| By: | /s/ Xxx Xxxxxx | ||
| Name: | Xxx Xxxxxx | ||
| Title: | Managing Partner | ||
| SOLA LTD | |||
| By: | /s/ Xxxxxxxxxxx Xxxxxxx | ||
| Name: | Xxxxxxxxxxx Xxxxxxx | ||
| Title: | Director | ||
| SOLUS CORE OPPORTUNITIES MASTER FUND LTD | |||
| By: | /s/ Xxxxxxxxxxx Xxxxxxx | ||
| Name: | Xxxxxxxxxxx Xxxxxxx | ||
| Title: | Director | ||
[Indemnification Agreement for Xxxxx X. Xxxxxxx]
Schedule A
|
Noteholder Plan Proponent |
Contribution Percentage |
|
Xxxx Xxxxxxx Strategic Income Fund c/o MFC Global Investment Management (U.S.), LLC 000 Xxxxxxxxxx Xxxxxx Xxxxxx, XX 00000 |
6.956% |
|
Xxxx Xxxxxxx Trust Strategic Income Trust c/o MFC Global Investment Management (U.S.), LLC 000 Xxxxxxxxxx Xxxxxx Xxxxxx, XX 00000 |
0.219% |
|
Xxxx Xxxxxxx Funds II Strategic Income Fund c/o MFC Global Investment Management (U.S.), LLC 000 Xxxxxxxxxx Xxxxxx Xxxxxx, XX 00000 |
2.480% |
|
Xxxx Xxxxxxx High Yield Fund c/o MFC Global Investment Management (U.S.), LLC 000 Xxxxxxxxxx Xxxxxx Xxxxxx, XX 00000 |
15.454% |
|
Xxxx Xxxxxxx Funds II High Income Fund c/o MFC Global Investment Management (U.S.), LLC 000 Xxxxxxxxxx Xxxxxx Xxxxxx, XX 00000 |
6.610% |
|
Xxxx Xxxxxxx Xxxx Fund c/o MFC Global Investment Management (U.S.), LLC 000 Xxxxxxxxxx Xxxxxx Xxxxxx, XX 00000 |
0.741% |
|
Xxxx Xxxxxxx Income Securities Trust c/o MFC Global Investment Management (U.S.), LLC 000 Xxxxxxxxxx Xxxxxx Xxxxxx, XX 00000 |
0.642% |
|
Xxxx Xxxxxxx Investors Trust c/o MFC Global Investment Management (U.S.), LLC 000 Xxxxxxxxxx Xxxxxx Xxxxxx, XX 00000 |
0.817% |
|
Xxxx Xxxxxxx Funds III Leveraged Companies Fund c/o MFC Global Investment Management (U.S.), LLC 000 Xxxxxxxxxx Xxxxxx Xxxxxx, XX 00000 |
0.046% |
|
Xxxx Xxxxxxx Funds II Active Bond Fund c/o MFC Global Investment Management (U.S.), LLC 000 Xxxxxxxxxx Xxxxxx Xxxxxx, XX 00000 |
0.139% |
|
Xxxx Xxxxxxx Funds Trust Active Bond Trust c/o MFC Global Investment Management (U.S.), LLC 000 Xxxxxxxxxx Xxxxxx Xxxxxx, XX 00000 |
0.687% |
|
Manulife Global Fund U.S. Bond Fund c/o MFC Global Investment Management (U.S.), LLC 000 Xxxxxxxxxx Xxxxxx Xxxxxx, XX 00000 |
0.032% |
|
Manulife Global Fund U.S. Special Bond Fund c/o MFC Global Investment Management (U.S.), LLC 000 Xxxxxxxxxx Xxxxxx Xxxxxx, XX 00000 |
0.123% |
|
Manulife Global Fund Strategic Income c/o MFC Global Investment Management (U.S.), LLC 000 Xxxxxxxxxx Xxxxxx Xxxxxx, XX 00000 |
0.054% |
|
Brigade Capital Management 000 Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 |
32.500% |
|
Sola Ltd. c/o Solus Alternative Asset Management LP 000 Xxxx Xxxxxx, 0xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 |
20.000% |
|
Solus Core Opportunities Master Fund Ltd c/o Solus Alternative Asset Management LP 000 Xxxx Xxxxxx, 0xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 |
12.500% |
