EXHIBIT 10.30
AMENDED AND RESTATED
SERVICES AGREEMENT
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THIS AMENDED AND RESTATED SERVICES AGREEMENT (the "AGREEMENT") is entered
into as of the 1/st/ day of October, 1998, by and between Hollywood Casino
Corporation, a Delaware corporation ("HCC"), and Xxxxx Management, L.P., a
Delaware limited partnership ("PMLP").
RECITALS
A. PMLP is the current operator under that certain Management Services
Agreement dated as of June 21, 1991 (as amended, the "AURORA MANAGEMENT
SERVICES AGREEMENT") between Hollywood Casino-Aurora, Inc. (fka Aurora
Riverboats, Inc.), as owner, and PMLP (assignee of PPI Corporation, the
successor by merger to Greate Bay Casino Corporation), as operator;
B. HCC is a corporation engaged in managing and operating hotel and casino
gaming complexes and has the personnel and the expertise to enable PMLP to
perform its obligations and duties under the Aurora Management Services
Agreement;
C. HCC previously provided to PMLP the services of personnel of HCC and its
subsidiaries pursuant to that certain Services Agreement dated as of
February 17, 1994 (the "2/17/94 HCC/PMLP SERVICES AGREEMENT"), between HCC
and PMLP, in order to enable PMLP to perform its obligations and duties
under the Aurora Management Services Agreement;
D. The fee structure of the 2/17/94 HCC/PMLP Services Agreement was based on
HCC providing services not only to PMLP to enable PMLP to perform its
obligations and duties under the Aurora Management Services Agreement but
also to New Jersey Management, Inc., a New Jersey corporation ("NJMI"), to
enable NJMI to perform its obligations and duties under that certain
Management Services Agreement dated as of August 19, 1987 (as amended, the
"SANDS MANAGEMENT CONTRACT"), between NJMI and Greate Bay Hotel and
Casino, Inc., a New Jersey corporation ("GBH&C") which owns the Sands
Hotel and Casino in Atlantic City, New Jersey;
E. On January 5, 1998, GBH&C et al filed a petition for bankruptcy (the
"SANDS BANKRUPTCY") under Chapter 11 of the United States Code in the
United States Bankruptcy Court for the District of New Jersey, Camden
Vicinage (the "BANKRUPTCY COURT");
F. As a result of the grant by the Bankruptcy Court in the Sands Bankruptcy
of final approval of the motion by GBH&C to reject the Sands Management
Contract on September 28, 1998, the Sands Management Contract and related
HCC/NJMI Services Agreement are no longer in effect;
G. In light of the termination of the Sands Management Contract and related
HCC/NJMI Services Agreement, the arrangement contemplated by the 2/17/94
HCC/PMLP Services Agreement (the "PRIOR HCC/PMLP SERVICES ARRANGEMENT") no
longer works in the calculation of the fee thereunder and must be amended
and restated; and
H. PMLP now desires to enter into a new services arrangement with HCC
replacing the Prior HCC/PMLP Services Arrangement pursuant to which HCC
will provide to PMLP the services of personnel of HCC and its subsidiaries
for the consideration and upon the other terms and conditions set forth
below.
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual covenants of the parties
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS. As used herein, the following terms shall have the meanings
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herein specified:
"GAMING LAWS" shall mean (i) the New Jersey Casino Control Act and any
successor statute and any and all rules, regulations, policies, orders
and resolutions promulgated thereunder, (ii) the Mississippi Gaming
Control Act and any successor statute and any and all rules, regulations,
policies, orders and resolutions promulgated thereunder, (iii) the
Illinois Riverboat Gambling Act and any successor statute and any and all
rules, regulations, policies, orders and resolutions promulgated
thereunder, (iv) the Louisiana Riverboat Economic Development and Gaming
Control Act and any successor statute and any and all rules, regulations,
policies, orders and resolutions promulgated thereunder and (v) any and
all other gaming statutes, rules, regulations, policies, orders and
resolutions, to the extent that such gaming laws apply to HCC and/or
PMLP.
"GAMING REGULATORY AUTHORITIES" shall mean (i) the New Jersey Casino
Control Commission, (ii) the Mississippi Gaming Commission, (iii) the
Illinois Gaming Board, (iv) the Louisiana Riverboat Gaming Commission and
(v) any other gaming regulatory authority, to the extent that any of the
foregoing has jurisdiction over HCC and/or PMLP.
"SERVICES" shall mean the services provided by HCC to PMLP hereunder,
including, without limitation, executive management functions (including
the formulation of corporate policy and strategic planning), in-house
legal services (including regulatory compliance), financial reporting
services (including internal management reports and regulatory compliance
reporting), budgeting, planning and forecasting, cash management and
treasury functions, accounting services (including the maintenance of
books and records and the processing of transactions), federal and state
tax planning (including tax return preparation), insurance procurement
and risk management and the Special Services.
"SPECIAL SERVICES" shall mean certain special services which PMLP may
specifically request HCC or a subsidiary thereof to provide to it in
connection with a special project and HCC or such subsidiary may agree to
provide.
2. SERVICES. During the term of this Agreement, HCC, or at the direction of
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HCC one or more of its subsidiaries, shall perform such services as PMLP may
reasonably request from time to time in connection with the operations of PMLP,
including, without limitation, the Services. These Services will be performed
by the President of HCC and such other employees of HCC, or any HCC subsidiary,
as may be necessary. In providing such Services HCC or such subsidiary shall
provide whatever facilities, supplies and administrative office functions, which
may be required by PMLP, including, without limitation, office space, equipment,
supplies, transportation, telephone and utility services, bookkeeping,
accounting and record keeping services, insurance, advertising, data
processing, handling of cash receipts and cash disbursements, check writing,
training and such other functions, facilities and services as PMLP shall
require.
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3. TERM; TERMINATION.
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a. Term. This Agreement shall commence on the effective date hereof
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and shall continue in effect for the term of the Aurora Management Services
Agreement, unless sooner terminated in accordance with the terms and provisions
hereof. Unless one party delivers written notice of termination to the other
party that is received no later than one hundred eighty (180) days prior to the
expiration date of the initial or any renewal term of this Agreement, this
Agreement shall be automatically renewed upon the same terms and conditions for
a five (5) year period, and the same notice and renewal terms shall apply to
each renewal period. The initial term and any renewal thereof are hereinafter
referred to as the "TERM".
b. Reciprocal Termination. Notwithstanding any other provision of this
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Agreement, each party shall have the right to terminate this Agreement if the
non-defaulting party gives written notice to the defaulting party of the
occurrence of any of the following events of default and the defaulting party
shall fail to cure such default within thirty (30) days of the effective date of
such written notice:
(i) a material breach of this Agreement which is not cured prior to the
expiration of the thirty (30) day period of cure specified above;
or
(ii) an admission in writing of its inability to pay its debts generally
as they become due; or
(iii) a bankruptcy, dissolution, appointment of a receiver, or the
voluntary filing of any petition therefor or consent thereto, or
any assignment for the benefit of creditors, under any applicable
insolvency laws; or
(iv) any action to suspend normal business operations; or
(v) any materially adverse levy or judgment is filed, which is not
satisfied or otherwise removed or set aside within ten (10) days of
the filing thereof.
c. HCC's Right to Terminate. Any other provision of this Agreement
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to the contrary notwithstanding, HCC may terminate this Agreement upon the
failure of PMLP to compensate or reimburse HCC as provided for in this
Agreement, such termination to become effective thirty (30) days following the
effective date of receipt by PMLP of written notice of such failure, unless
otherwise cured by PMLP within such period. Should HCC terminate this Agreement
as provided in this Paragraph 3.c., PMLP shall immediately pay to HCC as
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liquidated damages, and HCC shall accept from PMLP, an amount equal to twice the
fees earned by HCC hereunder in the preceding fiscal year under this Agreement.
d. Damages. If this Agreement shall be terminated as set forth in
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this Paragraph 3 and the aggrieved party (i) has a claim for damages pursuant to
the specific terms of this Agreement, or (ii) believes it otherwise has a claim
for damages, it may claim such damages suffered by reason of the other's non-
compliance, breach or default.
4. FEES. As remuneration for the Services rendered by HCC to PMLP, (i) PMLP
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shall pay to HCC during the Term a fee equal to $85,000 per month on the 1/st/
day of each month and (ii) in the event that HCC performs Special Services for
PMLP, PMLP shall pay to HCC during the Term a monthly fee equal to the actual
cost to HCC of the Special Services for such month (which fee shall be (A) set
forth in an invoice delivered by HCC to PMLP on or before the 10/th/ day of the
month following the month in which the services were performed
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(which invoice shall describe such services and show the calculation of such
fee) and (B) payable on the 15/th/ day of such month).
5. NOTICES. All notices, requests, consents and other communications
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required or permitted under this Agreement shall be in writing and shall be:
(i) personally delivered; (ii) transmitted by United States certified or
registered mail, postage prepaid, return receipt requested, or by commercial
courier or express service; or (iii) transmitted by telecopier, to the party to
whom such notice, request, consent or other communication is being given at the
address of such party set forth below, or at such other address as any party may
designate by written notice to the other parties:
(a) If to HCC, to it at:
Hollywood Casino Corporation
Two Xxxxxxxx Xxxxx, Xxxxx 0000
00000 Xxxx Xxxx, XX 48
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
(b) If to PMLP, to it at:
Xxxxx Management, L.P.
Two Galleria Tower, Suite 2200
00000 Xxxx Xxxx, XX 00
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. XxXxxxx III
All notices, requests, consents and other communications shall be effective
or deemed delivered upon (i) the date of receipt if delivered personally, (ii)
the earlier to occur of the actual receipt thereof by the addressee or three (3)
days after the date of deposit if transmitted by mail or commercial courier or
express service or (iii) the date of transmission with confirmed answerback if
transmitted by telecopier.
6. AGENCY RELATIONSHIP. In taking any action pursuant to this Agreement,
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HCC (or any of its subsidiaries providing services hereunder) shall act only as
the appointed agent or representative of PMLP and nothing in this Agreement
shall be construed as creating a tenancy, partnership, joint venture or any
other relationship between the parties hereto, except that of principal and
agent.
7. SEVERABILITY. If any provision of this Agreement or the application
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hereof to any person or circumstances shall to any extent be held void,
unenforceable or invalid, then the remainder of this Agreement or the
application of such provision to persons or circumstances other than those as to
which it is held void, unenforceable or invalid shall not be effective hereby,
and each provision of this Agreement shall be valid and enforced to the fullest
extent permitted by law.
8. COSTS OF LITIGATION. In any action or proceeding brought by any party
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against any other party under this Agreement, the prevailing party shall be
entitled to recover from the other party attorneys' fees, investigation costs,
and other legal expenses and court costs incurred by such party in such action
or proceeding as the court may find to be reasonable.
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9. COUNTERPARTS. This Agreement may be executed in counterparts, each of
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which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
10. HEADINGS. Headings of paragraphs in this Agreement are for convenience
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of reference only and shall not define or limit any of the terms or provisions
hereof.
11. ENTIRE AGREEMENT; WAIVER. This Agreement contains the entire agreement
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between the parties hereto with respect to the transactions contemplated herein,
supersedes all prior written agreements and negotiations and oral
understandings, if any, and may not be amended, supplemented or discharged,
except by an instrument in writing signed by each party hereto. No failure by
any party to insist upon strict compliance with the terms and conditions hereof
shall be deemed to be a waiver thereof.
12. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, and shall
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inure to the benefit of and be enforceable by, the parties hereto and their
respective successors and assigns.
13. GOVERNING LAW. This Agreement shall be construed and enforced in
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accordance with the laws of the State of Texas, provided, however, that this
Agreement shall be specifically subject to the provisions of the Gaming Laws (if
applicable) and the requirements of the Gaming Regulatory Authorities (if
applicable).
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IN WITNESS WHEREOF, the parties have caused this agreement to be executed and
delivered by their respective officers hereunto duly authorized as of the
effective date hereof.
HOLLYWOOD CASINO CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President, General
Counsel and Secretary
XXXXX MANAGEMENT, L.P.
By: HWCC-Aurora Management, Inc.,
an Illinois corporation,
its General Partner
By: /s/ Xxxxxxx X. XxXxxxx III
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Name: Xxxxxxx X. XxXxxxx III
Title: Vice President
CONSENT
The undersigned, Xxxxx Casino Corporation, being the sole limited partner
of PMLP, hereby consents to the foregoing Amended and Restated Services
Agreement and to the terms and provisions thereof.
XXXXX CASINO CORPORATION
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Chairman of the Board and
Chief Executive Officer
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