Exhibit 10.3
AMENDED AND RESTATED
MANAGEMENT AGREEMENT
THIS AMENDED AND RESTATED MANAGEMENT AGREEMENT ("Agreement") is
executed as of this 6th day of December, 2001, by and between Xxxxxx
Development, Inc., an Indiana corporation (the "Manager"), and Majestic Investor
Holdings, LLC, a Delaware limited liability company (the "Company").
W I T N E S S E T H:
WHEREAS, the Manager and Majestic Investor, LLC, a Delaware limited
liability company and the sole member of the Company ("Investor") entered into a
Management Agreement on September 19, 2001 that provided for the Manager to be
compensated for managing the affairs of Investor;
WHEREAS, Investor assigned all of its rights and obligations under the
Management Agreement to the Company on October 22, 2001;
WHEREAS, the parties hereto now desire to amend and restate the
Management Agreement to reflect the assignment of the Management Agreement to
the Company and certain changes regarding the subordination of the payment of
Management Fees;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein set forth, the parties do hereby agree as
follows:
1. Terms used but not otherwise defined herein shall have the meanings set forth
in that certain Indenture to be entered into by and among the Company, Majestic
Investor Capital Corp., the subsidiary guarantors and The Bank of New York, as
trustee thereunder (the "Indenture").
2. During the term of this Agreement, Manager shall, subject to and in
accordance with the terms of the Limited Liability Company Agreement, serve as
the manager of the Company.
3. Subject to Section 5 hereof, beginning and conditioned on the closing of the
transactions contemplated by that certain Purchase Agreement, dated November 22,
2000, as amended on December 4, 2000, and as further amended on November 1,
2001, by and among the Company, Xxxxxxxxxx'x Gaming Corporation and certain
affiliates of such parties (the "Xxxxxxxxxx Transaction"), the Company shall pay
to the Manager, on a quarterly basis, within 15 days after the end of each
quarter, a management services fee equal to (i) one percent (1%) of the
Company's Net Revenues for such quarter; plus (ii) five percent (5.0%) of the
Company's Consolidated Cash Flow for such quarter. If the Xxxxxxxxxx Transaction
does not close on the first day of a quarter, the Manager shall be entitled to a
pro rata portion of its fee for such quarter.
4. Subordination.
(a) Agreement to Subordinate. Except as provided in paragraph (c) of
this Section 4, the Company and BDI agree, that the payment of Management Fees
under this Agreement are subordinated and junior in right of the payment in full
of principal, interest, premium and Liquidated Damages, if any (the
"OBLIGATIONS"), on the Notes, and that the subordination is for the benefit of
and shall be enforceable by, the Holders of Notes, and that each Holder of Notes
shall be deemed to have acquired such Notes in reliance upon the provisions
contained in this Agreement.
(b) Liquidation; Dissolution; Bankruptcy. Upon any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, to creditors of the Company in a liquidation or
dissolution of the Company or its properties, in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its
properties, in an assignment for the benefit of creditors or in any marshalling
of assets and liabilities of the Company:
(i) Holders of Notes shall receive payment in full in cash of
any Obligations on the Notes (including interest after the commencement
of any such proceeding at the rate specified in the Indenture, whether
or not such interest is an allowable claim) before BDI shall be
entitled to receive any payment or distribution of any kind or
character with respect to any Management Fees under this Agreement; and
(ii) until the Obligations on the Notes (as provided in
subsection (i) above) are paid in full in cash, any payment or
distribution of assets of the Company of any kind or character, whether
in cash, property or securities, to which BDI would be entitled under
this Agreement but for this Section 4 shall be made to Holders of
Notes, as their interests may appear.
(c) Payment Default. The Company shall not make any payment or
distribution of any kind or character to BDI with respect to any Management Fees
due under this Agreement until all Obligations with respect to the Notes have
been paid in full; provided, however, that if no Default in the payment when
due, whether at maturity, upon redemption, acceleration, declaration or
otherwise, of any Obligations, with respect to the Notes has occured and is
continuing on the date of such payment or distribution with respect to any
Management Fees due under this Agreement, the Company may make any such payment
or distribution with respect to any Management Fees due under this Agreement;
provided, further, that the Company may resume payments and distributions with
respect to any Management Fees due under this Agreement upon the date upon which
any such Default has been cured or waived.
(d) When Distribution Must Be Paid Over. In the event that BDI receives
any payment or distribution of any kind or character, whether in cash,
properties or securities, in respect of any Management Fees under this Agreement
at a time when such payment or distribution is prohibited by this Section 4 and
BDI has actual knowledge that the payment is prohibited, such payment shall be
held by BDI, in trust for the benefit of, and shall be paid forthwith over and
delivered, upon written request, (on a pro rata basis based on the aggregate
principal amount of Notes held by the Holders), to the Holders of the Notes with
respect to Notes remaining unpaid to the extent necessary to pay the Obligations
in full, after giving effect to any concurrent payment or distribution to or for
the Holders of the Notes.
If BDI is required by any court or otherwise to deliver
payments it received by the Company to a Holder of the Notes, any amount so paid
to the extent theretofore discharged, shall be reinstated in full force and
effect.
To the extent any payment of the Obligations on the Notes
(whether by or on behalf of the Company, as proceeds of security or enforcement
of any right of setoff or otherwise) is declared to be fraudulent or
preferential, set aside or required to be paid to any receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person under any
bankruptcy, insolvency, receivership, fraudulent conveyance or similar law,
then, if such payment is recovered by, or paid over to, such receiver, trustee
in bankruptcy, liquidating trustee, agent or other similar Person, the
Obligations on the Notes or part thereof originally intended to be satisfied
shall be deemed to be reinstated and outstanding as if such payment had not
occurred.
(d) Notice By the Company. The Company shall promptly notify BDI in
writing of any facts known to the Company that would cause a payment of any
Management Fee under this Agreement to violate this Section 4, but failure to
give such notice shall not affect the subordination of the Management Fees to
the Notes as provided in this Section 4.
(e) Subrogation. Subject to the payment in full of all Obligations on
the Notes, BDI shall be subrogated (equally and ratably with all other
Indebtedness pari passu with the Company's obligation to pay Management Fees) to
the rights of the Holders of Notes to receive payments or distributions of cash,
properties or securities of the Company applicable to the Notes until the Notes
have been paid in full. A distribution made under this Section 4 to the Holders
of the Notes that otherwise would have been made to BDI is not, as between the
Company and BDI, a payment by the Company to or on account of the Notes.
(f) Relative Rights. This Section 4 defines the relative rights of BDI
and the Holders of the Notes. Nothing in this Agreement shall:
(i) impair, as between the Company and BDI, the obligation of
the Company, which is absolute and unconditional, to pay Management
Fees in accordance with the terms of this Agreement;
(ii) affect the relative rights of BDI and creditors of the
Company other than their rights in relation to Holders of the Notes; or
(iii) prevent the BDI from exercising its available remedies
upon a default under this Agreement, subject to the rights of the
Holders the Notes to receive distributions and payments otherwise
payable to BDI.
The failure to make a payment on account of Management Fees by
reason of any provision of this Section 4 shall not be construed as preventing
the occurrence of a default under this Agreement.
(g) Subordination May Not Be Impaired by the Company. No right of any
Holder of Notes to enforce the subordination of the payment of Management Fees
under this Agreement shall at any time in any way be prejudiced or be impaired
by any act or failure to act by the
Company or BDI or by the failure of the Company or BDI to comply with this
Agreement, regardless of any knowledge thereof which BDI may have otherwise been
charged with.
Without in any way limiting the generality of the foregoing
paragraph, the Holders of the Notes may, at any time and from time to time,
without the consent of or notice to BDI, without incurring responsibility to BDI
and without impairing or releasing the subordination provided in this Section 4
or the obligations hereunder of BDI to the Holders of the Notes, do any one or
more of the following: (i) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, the Notes, or otherwise amend
or supplement in any manner the Notes; (ii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing the Notes; (iii)
release any Person liable in any manner for the payment or collection of the
Notes; and (iv) exercise or refrain from exercising any rights against the
Company and any other Person.
(h) Amendments. The provisions of this Section 4 shall not be amended
or modified without the written consent of the parties holding a majority of the
outstanding Notes.
5. Notwithstanding the foregoing, the Company shall not be required to pay the
fees under Section 3, if a Default or Event of Default has occurred and is
continuing under the Indenture or would occur as a consequence of such payment.
Any payments otherwise owed hereunder that are not made shall not be canceled
but rather shall accrue and shall be payable by the Company promptly when, and
to the extent, the Company is no longer prohibited from making such payments.
6. The terms of this Agreement shall commence on the day and year first above
written and shall continue until the date on which the manager no longer serves
as manager of the Company pursuant to the Limited Liability Company Agreement,
unless earlier terminated by either party upon 60 days prior written notice.
7. The Manager shall have no liability hereunder for any breach of this
Agreement, except to the extent that any such breach hereunder gives rise to a
breach of the Manager's obligations as set forth in the Limited Liability
Company Agreement, which breach shall be remedied pursuant to the terms thereof.
The Company's sole remedy for any claim hereunder shall be the termination of
this Agreement, provided, that nothing set forth herein shall in any way impair
the Company's rights and remedies are set forth in the Limited Liability Company
Agreement.The Company shall indemnify the Manager, and any employee, officer,
manager, director or Agent of the Manager, as and to the extent set forth in
Section 10 of the Limited Liability Company Agreement.
8. Miscellaneous.
(a) This Agreement and the Limited Liability Company Agreement
set forth the entire understanding of the parties with respect to the Manager's
rendering of management services to the Company. This Agreement may not be
modified, waived, terminated or amended, except expressly by an instrument in
writing signed by the Manager and the Company.
(b) This Agreement and the right to receive fees and expenses
due hereunder may be assigned or pledged in whole or in part by the Manager to
any party. This Agreement may not be assigned or pledged by the Company without
the prior written consent of the Manager.
(c) In the event that any provision of this Agreement shall be
held to be void or unenforceable in whole or in part, the remaining provisions
of this Agreement and the remaining portion of any provision held void or
unenforceable in part shall continue in full force and effect.
(d) Except as otherwise specifically provided herein, notice
given hereunder shall be deemed sufficient if delivered personally or sent by
registered or certified mail to the address of the party for whom intended at
the principal executive offices of such party, or at such other address as such
pay may hereinafter specify by written notice to the other party.
(e) No waiver by either party of any breach of any provision
of this Agreement shall be deemed a continuing waiver or a waiver of any
preceding or succeeding breach of such provision or of any other provision
herein contained
(f) This Agreement shall be governed by and construed in
accordance with the laws of the State of Indiana.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
XXXXXX DEVELOPMENT, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: EVP, COO, CFO
MAJESTIC INVESTOR HOLDINGS, LLC
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: EVP, COO, CFO
