Exhibit 10.6
AMENDMENT NO. 1 TO FIRST AMENDED
AND RESTATED OPERATING AGREEMENT OF
BUFFINGTON HARBOR RIVERBOATS, L.L.C.
This Amendment No. 1 to First Amended and Restated Operating Agreement
(the "Amendment") is entered into as of this 23rd day of April, 1996 by and
between TRUMP INDIANA, INC., a Delaware corporation, having an office at 6012 W.
Industrial Highway, Gary, Indiana 46406 (hereinafter sometimes referred to as
"Trump"), and THE MAJESTIC STAR CASINO, LLC (formerly Barden-Davis Casino, LLC),
an Indiana limited liability company, having an office at Suite 2400, 400
Renaissance Center, Detroit, Michigan 48243 (hereinafter sometimes referred to
as "Majestic"; Trump and Majestic are hereinafter sometimes referred to as the
"Members" and individually as a "Member").
W I T N E S S E T H
WHEREAS, Trump and Majestic have formed Buffington Harbor Riverboats,
L.L.C., a Delaware limited liability company (the "LLC"), pursuant to the terms
of an Operating Agreement dated as of September 27, 1995 (the "Operating
Agreement");
WHEREAS, Trump and Majestic amended and restated the Operating
Agreement by a First Amended and Restated Operating Agreement dated as of
October 31, 1995 (the Operating Agreement, as so amended and restated, is
hereinafter referred to as the "Agreement"); and
WHEREAS, the Members wish to amend the Agreement in the respects
hereinafter set forth.
NOW THEREFORE, in consideration of the mutual covenants and conditions
hereafter contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. Definitions. Capitalized terms used in this Amendment and not
otherwise defined herein shall have the meanings ascribed to them in the
Agreement.
2. Change of Member's Name. Majestic represents to Trump, and Trump
acknowledges, that Barden-Davis Casino, LLC has changed its name to "The
Majestic Star Casino, LLC" by filing with the Indiana Secretary of State an
amendment to its Articles of Organization. Majestic and Trump agree to file with
the Delaware Secretary of State an amendment to the Certificate of Formation of
Buffington Harbor Riverboats, L.L.C. confirming Majestic's name change. Unless
the context clearly requires otherwise, all references in the Agreement to "BDC"
shall be deemed to refer to "Majestic".
3. Establishment of Operating Subcommittee. The Members acknowledge
and agree that the Operating Committee can more effectively carry out and
discharge certain of its responsibilities relative to the operation and
management of the LLC through a subcommittee comprised of on-site personnel.
Accordingly, a subcommittee (the "Subcommittee") of the Operating Committee is
hereby established on the following terms:
(a) The Subcommittee shall have responsibility for the
day-to-day operations, management and maintenance of the Common Areas,
and the day-to-day delivery and supervision of services to be provided
by the LLC from time to time under any Berthing Agreement.
(b) The Subcommittee shall consist of two voting
representatives, one of whom shall be the general manager of Trump's
on-site gaming operations, and the other of whom shall be the general
manager of Majestic's on-site gaming operations. Each representative
shall be employed on a full time basis at the site of the LLC
Property.
(c) Subject to overall direction from the operating Committee,
the Subcommittee shall have the power and authority to perform the
functions and responsibilities of the Operating Committee as set forth
in Section 3.2 of the Agreement, insofar as such functions and
responsibilities pertain to the matters referred to in subparagraph
(a) above, provided that the subcommittee shall not have the authority
to enter into any contract or other obligation or commitment in the
name of or on behalf of the LLC that involves an expenditure in excess
of two hundred fifty thousand ($250,000) dollars, or any employment
contract or arrangement that involves the payment of a salary or other
compensation in excess of fifty thousand ($50,000) dollars per year.
(d) The Subcommittee shall submit periodic reports (not less
than monthly) to the Operating Committee, which shall include a
summary of operations, revenues, expenses, significant new contracts,
obligations and commitments and matters that should be acted upon by
the Operating Committee. The representatives of the Subcommittee shall
endeavor to attend the meetings of the Operating Committee, but shall
not (i) be members of the Operating Committee, (ii) vote on matters
before the Operating Committee, or (iii) be included in any
determination of whether or not a quorum of the Operating Committee
has been constituted, unless (and then only to the extent that) one or
both representatives to the Subcommittee also have been separately
named under the terms of the Agreement as member(s) of the Operating
Committee. The presence and/or absence of any member(s) of the
Subcommittee, in their capacities as such, shall not affect the
validity of any action taken by the operating Committee.
(e) The Subcommittee may act only by the affirmative vote of
both representatives; provided, that during any period in which an
Event of Default continues, the representative appointed by the
Defaulting Member shall be suspended from participating on the
Subcommittee and the Subcommittee may act by the affirmative vote of
the other representative.
(f) The LLC is a member-managed limited liability company. Each
representative of the Subcommittee shall be deemed to be the agent of,
and to represent, the Member that employed him or her, and show all
his or her loyalty and duty to such Member.
4. Extension of Time for Agreement Upon Initial Operating Plan and
Budget. Section 3.9(d) of the Agreement is amended to provide that the date by
which the initial Operating Plan and Budget is to be agreed upon shall be April
30, 1996.
5. Amendment Regarding Increases in the Operating Plan and Budget.
The limitation on obligatory increases in the operating Plan and Budget during
any fiscal year set forth in Section 3.9(e) of the Agreement shall be increased
from two million five hundred thousand ($2,500,000) dollars to five million
($5,000,000) dollars, if and to the extent the LLC requires funds in excess of
the amount of available insurance proceeds to repair or restore the Common Areas
following a casualty.
6. Amendment to Timing of Additional Capital Contributions. The
parties acknowledge that each Member has made the capital contributions required
to be made by it pursuant to Sections 4.1(a)(1), (2) and (3) of the Agreement
(although such acknowledgement shall not constitute a waiver of any claim or
right the LLC or the other Member may have with regard to any representation or
warranty with respect to any capital contribution). Section 4.1(a)(5) of the
Agreement is hereby deleted in its entirety and replaced with the following new
Section 4.1(a)(5):
Each of Trump and Majestic shall contribute one-half (1/2)
of the amount shown on the 60 Day Projection (as hereinafter
defined) on or before the fifth (5th) day of each month
following issuance of a 60 Day Projection, and each such
contribution shall apply against the Member's additional
capital contribution due under Subsection (4) above;
provided, in any event each Member shall contribute the
balance of its additional capital contribution due under
Subsection (4) above (i.e., $18,993,415 less prior capital
contributions by the Member under Subsection (4) above or
this Subsection) on or before June 1, 1996. For purposes
hereof the "60 Day Projection" shall mean the cash flow
projection forecasting the amount of additional funds
required to construct the Site Plan Improvements and to
otherwise conduct the LLC's contemplated operations during
the sixty (60) days following such projection, all in
accordance with the Improvements Budget, taking into account
cash on hand and projected revenues for the applicable
period. Each 60 Day Projection shall be prepared by the
Subcommittee on or before the first (1st) day of each month
commencing March 1, 1996. Notwithstanding anything herein to
the contrary, no member shall be obligated to make aggregate
contributions under this Section 4.1 in excess of one-half
(1/2) of the Improvements Budget.
7. Extension of Time For Berthing Agreements. Section 4.1(e) of the
Agreement is amended to provide that the date by which each Member shall enter
into a Berthing Agreement shall be April 30, 1996.
8. Amendment to Section 8(a) and (b). Section 8(a) and (b) of the
Agreement are hereby deleted and replaced with the following new Sections 8(a)
and (b):
(a) No interest of any Member in the LLC or otherwise under this
Agreement shall be sold, transferred, pledged, encumbered,
hypothecated or assigned, unless (i) such transaction complies with
any relevant provisions of Section 8(b), (ii) any sale or other
assignment of the interest subsumes the Member's entire interest in
the LLC (including all of the Member's voting rights, powers of
appointment, informational rights, Percentage Interest and Capital
Account), (iii) except as to a pledge, granting of a security interest
or collateral assignment for security purposes (as to which this
subclause shall not apply), the counterparty to the transaction
expressly acknowledges that it acquires its rights in the interest
subject to the terms of this Agreement (which shall continue to
govern) and such counterparty assumes in writing any obligations of
the selling Member from and after the date of such assumption under
this Agreement and the Assignment and Assumption Agreement of even
date, and reasonable assurances are provided to the remaining Member
that all monetary obligations hereunder of the selling Member prior to
the date of such assumption have been or will be satisfied, and (iv)
such transaction would not result in a breach or default under any
agreement to which the LLC is a party or give rise to the right to
accelerate the maturity of any LLC indebtedness or result in any fees
or penalties to the LLC (unless the transferee or assignor indemnifies
the LLC against such fees or penalties in a manner reasonably
satisfactory to the non-transferring Member or pays such fees or
penalties).
(b) A Member may sell its entire interest in the LLC to any
Person which simultaneously acquires or has acquired a Certificate of
Suitability or a Riverboat Owner's License issued by the Commission
for use at the LLC Property. A Member may pledge, grant a security
interest in or make a collateral assignment of its entire interest in
the LLC as security for a loan, a surety bond, an extension of credit
or a guaranty on behalf of, by or to the Member; provided such loan,
surety bond, credit or guaranty is extended or issued in connection
with the Member's financial or performance obligations with respect to
its gaming operations at the Property or with respect to the LLC,
including in connection with the Member's (i) ownership, chartering,
equipping or operation of its riverboat, (ii) gaming-equipment or
other improvements, (iii) working capital needs, and (iv) past or
future capital contributions to the LLC, as well as for the extension,
reimbursement or refinancing of the foregoing; and further provided
that the loan, surety bond, credito or guaranty (or extension or
refinancing of the foregoing) does not serve as security for, and is
not cross-collateralized with, a loan that is not made in respect of
the Member's aforementioned obligations.
9. No Other Amendment. Except as amended and modified in the
respects specifically set forth above, the Agreement remains in full force and
effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
day and year first above written.
"TRUMP"
TRUMP INDIANA
By: /s/ Robert M. Pickus
-----------------------------
Robert M. Pickus
Its: Vice President
"MAJESTIC"
THE MAJESTIC STAR CASINO, LLC
By: Barden Development, Inc.,
Member
By: /s/ Don H. Barden
-------------------------
Don H. Barden
President
And
By: Gary Riverboat Gaming, LLC,
Member
By: Barden Management, Inc.,
Its Manager
By: /s/ Don H. Barden
---------------------
Don H. Barden
President