EXHIBIT 10.1
AMENDMENT NUMBER ONE TO LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER ONE TO LOAN AND SECURITY AGREEMENT (this
"Amendment"), dated as of May 4, 2004, is entered into by and among MAJESTIC
STAR CASINO, LLC, an Indiana limited liability company ("Parent"), and each of
Parent's Subsidiaries identified on the signature pages hereof (such
Subsidiaries, together with Parent, are referred to hereinafter each
individually as a "Borrower", and individually and collectively, jointly and
severally, as the "Borrowers"), each of the lenders that is a signatory to this
Amendment (together with its successors and permitted assigns, individually,
"Lender" and, collectively, "Lenders"), and WELLS FARGO FOOTHILL, INC., a
California corporation, as the arranger and administrative agent for the Lenders
(in such capacity, together with its successors, if any, in such capacity,
"Agent"; and together with each of the Lenders, individually and collectively,
the "Lender Group"), in light of the following:
W I T N E S S E T H
WHEREAS, each Borrower and the Lender Group are parties to
that certain Loan and Security Agreement, dated as of October 7, 2003 (as
amended, restated, supplemented, or modified from time to time, the "Loan
Agreement");
WHEREAS, each Borrower has requested that the Lender Group
agree to amend the Loan Agreement in accordance with the provisions of this
Amendment; and
WHEREAS, subject to the terms and conditions set forth in this
Amendment, the Lender Group is willing to so amend the Loan Agreement.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree to
amend the Loan Agreement as follows:
1. DEFINITIONS. Capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to them in the Loan Agreement, as
amended hereby.
2. AMENDMENTS TO LOAN AGREEMENT.
(a) Section 1.1 of the Loan Agreement is hereby amended by inserting the
following new definitions in proper alphabetical order:
"First Amendment" means that certain Amendment Number One to Loan
and Security Agreement dated as of May 4, 2004, by and among the Borrowers and
the Lender Group.
"First Amendment Effective Date" means the date, if ever, that all
of the conditions set forth in Section 3 of the First Amendment shall be
satisfied (or waived by Agent in its sole discretion).
(b) Effective as of December 31, 2003, Section 1.1 of the Loan Agreement
is hereby amended by amending and restating the following definition in its
entirety as follows:
"EBITDA" means, with respect to any fiscal period, (a) Parent's and
its Restricted Subsidiaries consolidated net earnings (or loss), minus (b)
extraordinary gains, plus (c) non-cash extraordinary losses, plus (d) interest
expense, income taxes, and depreciation and amortization for such period, plus,
(e) to the extent such amounts are deducted in calculating such consolidated net
earnings (or loss) for such fiscal period, without duplication, losses from the
retirement of Indebtedness incurred during Borrowers' fourth fiscal quarter of
their 2003 fiscal year, plus (f) to the extent such amounts are deducted in
calculating such consolidated net earnings (or loss) for such fiscal period (to
the extent that it includes Borrowers' second fiscal quarter of its 2003 fiscal
year), without duplication, retroactive gaming tax payments that were made by
such Person during Borrowers' second fiscal quarter of its 2003 fiscal year, in
an aggregate amount not in excess of $2,072,000, plus (g) to the extent such
amounts are deducted in calculating such consolidated net earnings (or loss) for
such fiscal period (to the extent that it includes Borrowers' first fiscal
quarter of their 2004 fiscal year), without duplication, liabilities accrued
during Borrowers' first fiscal quarter of their 2004 fiscal year with respect to
Indiana property taxes relating solely to their 2002 and 2003 fiscal years, in
an aggregate amount not in excess of $2,500,000, in each case as determined in
accordance with GAAP.
(c) Section 2.1(a)(i) of the Loan Agreement is hereby amended and
restated in its entirety as follows:
"(i) the Maximum Revolver Amount less the Letter of Credit Usage
less the then extant Bank Product Reserve, or"
(d) Section 7.2 of the Loan Agreement is hereby amended by deleting the
words "clause (i)" appearing therein and replacing them with the words "clause
(h)".
(e) Section 7.4(b)(iv) of the Loan Agreement is hereby amended by
deleting the words "(or within 30 days in the case of an Asset Sale or series of
related Asset Sales with Net Proceeds of $15,000,000 or more)," appearing
therein and replacing them with the words "(or in the case of an Asset Sale or
series of related Asset Sales with Net Proceeds of $15,000,000 or more, within
30 days after the first date when any such Net Proceeds are received by any
Borrower or any Restricted Subsidiary of any Borrower),".
(f) Section 7.7 of the Loan Agreement is hereby amended by (i) deleting
the words "clause (i)" appearing in clause (a) of Section 7.7 of the Loan
Agreement and
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replacing them with the words "clause (h)", and (ii) deleting the words "clause
(i)" appearing in clause (b) of Section 7.7 of the Loan Agreement and replacing
them with the words "clause (h)".
(g) Section 7.18(b) of the Loan Agreement is amended and restated in its
entirety as follows:
"(b) Make:
(i) CAPITAL EXPENDITURES. Capital Expenditures in
any fiscal year in excess of the amount set forth in the following table for the
applicable period:
Fiscal Year 2004 Fiscal Year 2005 Fiscal Year 2006 9 months ending on
the Maturity Date
$18,000,000 $12,000,000 $12,000,000 $ 9,000,000
The foregoing to the contrary notwithstanding, in the event the
Borrowers and their Restricted Subsidiaries do not expend the full amount of the
Capital Expenditures permitted hereunder for any period, the Borrowers and their
Restricted Subsidiaries may expend 25% of the unutilized portion thereof in the
immediately succeeding period."
(h) Section 11.2(a) of the Loan Agreement is hereby amended by deleting
the words "Agent shall not in any way" appearing therein and replacing them with
the words "neither Agent nor any Lender shall in any way".
(i) Section 14.1(b) of the Loan Agreement is hereby amended by inserting
the phrase "or deprive any assigning Lender of any rights under Section 11.3
hereof" at the end thereof immediately before the period at the end of such
section.
(j) Section 16.1 of the Loan Agreement is hereby amended by deleting the
words "Section 16.11(d)" appearing in the third sentence thereof and replacing
them with the words "Section 16.11(e)".
(k) Section 16.18 of the Loan Agreement is hereby amended by deleting
the word "or" appearing in the fourth sentence thereof and replacing it with the
word "of".
(l) Section 17.10 of the Loan Agreement is hereby amended by deleting
the words "Section 17.9" appearing in the last sentence thereof and replacing it
with the words "Section 17.10".
3. CONDITIONS PRECEDENT TO THIS AMENDMENT. The satisfaction of each of the
following shall constitute conditions precedent to the effectiveness of this
Amendment and each and every provision hereof:
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(a) The representations and warranties in this Amendment, the Loan
Agreement and the other Loan Documents shall be true and correct in all respects
on and as of the date hereof, as though made on such date (except to the extent
that such representations and warranties relate solely to an earlier date);
(b) Agent shall have received the reaffirmation and consent of each
Guarantor and Limited Recourse Guarantor attached hereto as Exhibit A (the
"Consent"), duly executed and delivered by an authorized official of each
Guarantor and of Limited Recourse Guarantor;
(c) No Default or Event of Default shall have occurred and be continuing
on the date hereof or as of the date of the effectiveness of this Amendment; and
(d) No injunction, writ, restraining order, or other order of any nature
prohibiting, directly or indirectly, the consummation of the transactions
contemplated herein shall have been issued and remain in force by any
Governmental Authority against any Borrower, any Guarantor, Limited Recourse
Guarantor, or any member of the Lender Group.
4. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby represents and
warrants to the Lender Group as follows:
(a) The representations and warranties in this Amendment, the Loan
Agreement and the other Loan Documents are true and correct in all respects on
and as of the date hereof, as though made on such date (except to the extent
that such representations and warranties relate solely to an earlier date);
(b) the execution, delivery, and performance of this Amendment and of
the Loan Agreement, as amended by this Amendment, are within each Borrower's
corporate powers, have been duly authorized by all necessary corporate action,
and are not in contravention of any law, rule, or regulation, or any order,
judgment, decree, writ, injunction, or award of any arbitrator, court, or
governmental authority, or of the terms of its charter or bylaws, or of any
contract or undertaking to which it is a party or by which any of its properties
may be bound or affected,
(c) this Amendment and the Loan Agreement, as amended by this Amendment,
constitute each Borrower's legal, valid, and binding obligation, enforceable
against such Borrower in accordance with its terms,
(d) this Amendment has been duly executed and delivered by each
Borrower,
(e) the execution, delivery, and performance of the Consent is within
each Guarantor's and Limited Recourse Guarantor's corporate power, has been duly
authorized by all necessary corporate action, and is not in contravention of any
law, rule or regulation, or any order, judgment, decree, writ, injunction, or
award of any arbitrator,
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court or governmental authority, or of the terms of its charter or bylaws, or of
any contract or undertaking to which it is a party or by which any of its
properties may be bound or affected,
(f) the Consent constitutes each Guarantor's and Limited Recourse
Guarantor's legal, valid, and binding obligations, enforceable against each such
Person in accordance with its terms,
(g) No Default or Event of Default has occurred and is continuing on the
date hereof or as of the date of the effectiveness of this Amendment,
(h) No injunction, writ, restraining order, or other order of any nature
prohibiting, directly or indirectly, the consummation of the transactions
contemplated herein has been issued and remains in force by any Governmental
Authority against Borrower, any Guarantor, Limited Recourse Guarantor, or any
member of the Lender Group, and
(i) the Consent has been duly executed and delivered by each Guarantor
and Limited Recourse Guarantor.
5. CONSTRUCTION. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED IN THE STATE OF CALIFORNIA.
6. ENTIRE AMENDMENT; EFFECT OF AMENDMENT. This Amendment, and terms and
provisions hereof, constitute the entire agreement among the parties pertaining
to the subject matter hereof and supersedes any and all prior or contemporaneous
amendments relating to the subject matter hereof. Except for the amendments to
the Loan Agreement expressly set forth in Section 2 hereof, the Loan Agreement
and other Loan Documents shall remain unchanged and in full force and effect.
The execution, delivery, and performance of this Amendment shall not operate as
a waiver of or, except as expressly set forth herein, as an amendment of, any
right, power, or remedy of the Lender Group as in effect prior to the date
hereof. The amendments set forth herein are limited to the specifics hereof,
shall not apply with respect to any facts or occurrences other than those on
which the same are based, shall not excuse future non-compliance with the Loan
Agreement, shall not operate as a waiver of any Default or Event of Default. To
the extent any terms or provisions of this Amendment conflict with those of the
Loan Agreement or other Loan Documents, the terms and provisions of this
Amendment shall control. This Amendment is a Loan Document.
7. COUNTERPARTS; TELEFACSIMILE EXECUTION. This Amendment may be executed in
any number of counterparts, all of which taken together shall constitute one and
the same instrument and any of the parties hereto may execute this Amendment by
signing any such counterpart. Delivery of an executed counterpart of this
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Amendment by telefacsimile shall be equally as effective as delivery of an
original executed counterpart of this Amendment. Any party delivering an
executed counterpart of this Amendment by telefacsimile also shall deliver an
original executed counterpart of this Amendment, but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability, and
binding effect of this Amendment.
8. MISCELLANEOUS.
(a) Upon the effectiveness of this Amendment, each reference in the Loan
Agreement to "this Agreement", "hereunder", "herein", "hereof" or words of like
import referring to the Loan Agreement shall mean and refer to the Loan
Agreement as amended by this Amendment.
(b) Upon the effectiveness of this Amendment, each reference in the Loan
Documents to the "Loan Agreement", "thereunder", "therein", "thereof" or words
of like import referring to the Loan Agreement shall mean and refer to the Loan
Agreement as amended by this Amendment.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and delivered as of the date first written above.
THE MAJESTIC STAR CASINO, LLC
an Indiana limited liability company
By:
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Title:
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BARDEN MISSISSIPPI GAMING, LLC
a Mississippi limited liability company
By:
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Title:
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BARDEN COLORADO GAMING, LLC
a Colorado limited liability company
By:
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Title:
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WELLS FARGO FOOTHILL, INC.,
a California corporation, as Agent and as a Lender
By:
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Title:
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GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender
By:
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Title:
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ALLIED IRISH BANKS PLC.,
as a Lender
By:
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Title:
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CANPARTNERS INVESTMENTS IV, LLC,
as a Lender
By:
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Title:
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EXHIBIT A
REAFFIRMATION AND CONSENT
All capitalized terms used herein but not otherwise defined herein shall
have the meanings ascribed to them in that certain Loan and Security Agreement
by and among MAJESTIC STAR CASINO, LLC, an Indiana limited liability company
("Parent"), and each of Parent's Subsidiaries identified on the signature pages
thereof (such Subsidiaries, together with Parent, are referred to hereinafter
each individually as a "Borrower", and individually and collectively, jointly
and severally, as the "Borrowers"), each of the lenders that is from time to
time a party thereto (together with their respective successors and permitted
assigns, individually, "Lender" and, collectively, "Lenders"), and WELLS FARGO
FOOTHILL, INC., a California corporation, as the arranger and administrative
agent for the Lenders (in such capacity, together with its successors, if any,
in such capacity, "Agent"; and together with each of the Lenders, individually
and collectively the "Lender Group"), dated as of October 7, 2003 (as amended,
restated, supplemented or otherwise modified, the "Loan Agreement"), or in
Amendment Number One to Loan and Security Agreement, dated as of May 4, 2004
(the "Amendment"), among the Borrowers and the Lender Group. The undersigned
each hereby (a) represent and warrant to the Lender Group that the execution,
delivery, and performance of this Reaffirmation and Consent are within its
powers, have been duly authorized by all necessary action, and are not in
contravention of any law, rule, or regulation, or any order, judgment, decree,
writ, injunction, or award of any arbitrator, court, or governmental authority,
or of the terms of its charter or bylaws, or of any contract or undertaking to
which it is a party or by which any of its properties may be bound or affected;
(b) consents to the amendment of the Loan Agreement by the Amendment; (c)
acknowledges and reaffirms its obligations owing to the Lender Group under any
Loan Documents to which it is a party; and (d) agrees that each of the Loan
Documents to which it is a party is and shall remain in full force and effect.
Although the undersigned has been informed of the matters set forth herein and
has acknowledged and agreed to same, it understands that the Lender Group has no
obligations to inform it of such matters in the future or to seek its
acknowledgment or agreement to future amendments, and nothing herein shall
create such a duty. Delivery of an executed counterpart of this Reaffirmation
and Consent by telefacsimile shall be equally as effective as delivery of an
original executed counterpart of this Reaffirmation and Consent. Any party
delivering an executed counterpart of this Reaffirmation and Consent by
telefacsimile also shall deliver an original executed counterpart of this
Reaffirmation and Consent but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and binding effect of
this Reaffirmation and Consent. This Reaffirmation and Consent shall be governed
by the laws of the State of California.
[signature page follows]
IN WITNESS WHEREOF, the undersigned have each caused this Reaffirmation
and Consent to be executed as of the date of the Amendment.
THE MAJESTIC STAR CASINO CAPITAL
CORP., an Indiana corporation
By:
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Name:
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Title:
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MAJESTIC INVESTOR, LLC,
a Delaware limited liability company
By:
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Name:
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Title:
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MAJESTIC INVESTOR HOLDINGS, LLC,
a Delaware limited liability company
By:
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Name:
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Title:
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MAJESTIC INVESTOR CAPITAL CORP.,
a Delaware corporation
By:
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Name:
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Title:
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