Exhibit 10.7
AMENDMENT NO. 2 TO FIRST AMENDED
AND RESTATED OPERATING AGREEMENT OF
XXXXXXXXXX HARBOR RIVERBOATS, L.L.C.
This Amendment No. 2 to First Amended and Restated Operating Agreement
(the "Amendment") is entered into as of this ___ day of March, 2003 by and
between XXXXX INDIANA, INC., a Delaware corporation, having an office at 0000 X.
Xxxxxxxxxx Xxxxxxx, Xxxx, Xxxxxxx 00000 (hereinafter sometimes referred to as
"Xxxxx"), and THE MAJESTIC STAR CASINO, LLC, an Indiana limited liability
company, having an office at Xxx Xxxxxxxxxx Xxxxxx Xxxxx, Xxxx, Xxxxxxx 00000
(hereinafter sometimes referred to as "Majestic"; Xxxxx and Majestic are
hereinafter sometimes referred to as the "Members" and individually as a
"Member").
WITNESSETH
WHEREAS, Xxxxx and Majestic have formed Xxxxxxxxxx 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, Xxxxx and Majestic amended and restated the Operating
Agreement by a First Amended and Restated Operating Agreement dated as of
October 31, 1995 (the "Restated Operating Agreement").
WHEREAS, Xxxxx and Majestic amended the Restated Operating Agreement
pursuant to the Amendment No. 1 to First Amended and Restated Operating
Agreement of Xxxxxxxxxx Harbor Riverboats, L.L.C. dated April 23, 1996 (the
Restated Operating Agreement, as so amended, is hereinafter referred to as the
"Agreement"); and
WHEREAS, the Members wish to further 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 are hereby acknowledged, the parties hereto 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. Amendment to Section 8(a). Section 8(a) of the Agreement is
hereby deleted and replaced with the following new Section 8(a):
(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), the
counterparty to the transaction (including, but not limited
to, a purchaser or transferee in lieu of or at foreclosure)
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). Subclause (iii)
above shall not apply to a pledge, granting of a security
interest or collateral assignment for security purposes at
the time of such pledge or grant, but shall apply in the
event of a sale, transfer or foreclosure pursuant thereto.
3. Amendment to Section 8(b). Section 8(b) of the Agreement is
hereby deleted and replaced with the following new Section 8(b):
(b) A Member may not sell its interest in the LLC except to a
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 only
as security for a loan, a surety bond, an extension of
credit or a guaranty on behalf of, by or to the Member.
4. No Other Amendment. Except as amended and modified in the
respects specifically set forth above, the Agreement remains in full force and
effect.
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5. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same agreement, it being understood that
all of the parties need not sign the same counterpart.
IN WITNESS WHEREOF, the parties have executed this Amendment as
of the day and year first above written.
"XXXXX"
XXXXX INDIANA, INC.
By:
-------------------------------
Its:
"MAJESTIC"
THE MAJESTIC STAR CASINO, LLC
By: Xxxxxx Development, Inc.,
Member
By:
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Xxxxxxx X. Xxxxx,
Vice President
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