Exhibit 10.8
AMENDMENT NUMBER FOUR TO LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER FOUR TO LOAN AND SECURITY AGREEMENT (this
"Amendment"), dated as of December 21, 2005, is entered into by and among THE
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 XXXXX 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:
WITNESSETH
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, the Borrowers have informed the Lender Group that pursuant to
that certain Stock Purchase Agreement dated as of November 3, 2005 by and
between Parent and Xxxxx Entertainment Resorts Holdings, L.P. (the "Acquisition
Agreement") Parent intends to acquire 100% of the Stock of Xxxxx Indiana, Inc.
for an aggregate cash purchase price not to exceed $253,000,000 (the
"Acquisition");
WHEREAS, each Borrower has requested that the Lender Group agree to
(i) amend the Loan Agreement in accordance with the provisions of this
Amendment, (ii) consent to the consummation of the Acquisition and (iii) consent
to the release of MSCCC as a Guarantor; and
WHEREAS, subject to the terms and conditions set forth in this
Amendment, the Lender Group is willing to so amend the Loan Agreement, so
consent to the Acquisition and so consent to such release.
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 as follows:
(i) by (A) deleting the word "and" immediately preceding clause
(b)(viii) of the definition of "Consolidated Cash Flow", (B)
deleting the semicolon at the end of clause (b)(viii) of the
definition of "Consolidated Cash Flow" and replacing it with ",
and", and (C) by inserting the following new clause (b)(ix)
immediately following clause (b)(viii) of the definition of
"Consolidated Cash Flow":
"(ix) charges incurred by Parent, BHR Joint Venture and MSC II
during Parent's fourth fiscal quarter of its 2005 fiscal year and
Parent's first fiscal and second fiscal quarters of its 2006
fiscal year in respect of severance payments made to employees of
Parent, BHR Joint Venture and MSC II in connection with the
Acquisition (as such term is defined in the Fourth Amendment) and
the consolidation of the operations of Parent, BHR Joint Venture
and MSC II, in an aggregate amount not in excess of $2,000,000,
in each case determined in accordance with GAAP;"
(ii) by (A) deleting the phrase ", in each case as determined in
accordance with GAAP." appearing at the end of clause (h) of the
definition of "EBITDA" and replacing it with ", plus", and (C) by
inserting the following new clause (i) immediately thereafter:
"(i) to the extent that such amounts are deducted in calculating
such consolidated net earnings (or loss) for such fiscal period
(and to the extent that such fiscal period includes Parent's
fourth fiscal quarter of its 2005 fiscal year and Parent's first
and second fiscal quarters of its 2006 fiscal year), charges
incurred by Parent, BHR Joint Venture and MSC II during Parent's
fourth fiscal quarter of its 2005 fiscal year and Parent's first
and second fiscal quarters of its 2006 fiscal year in respect of
severance payments made to employees of Parent, BHR Joint Venture
and MSC II in connection with the Acquisition (as such term is
defined in the Fourth Amendment) and the consolidation of the
operations of Parent, BHR Joint Venture and MSC II, in an
aggregate amount not in excess of $2,000,000, in each case as
determined in accordance with GAAP."
(iii) by deleting the number $270,000,000" appearing in clause (g) of
the definition of Permitted Indebtedness and replacing it with
the number "$330,000,000".
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(b) Section 1.1 of the Loan Agreement is hereby further amended by
inserting the following new definitions in proper alphabetical order:
""Adjusted EBITDA" means, for any period, Parent's and its Restricted
Subsidiaries' EBITDA for such period, adjusted give pro forma effect to the
Acquisition (as such term is defined in the Fourth Amendment) calculated in a
manner consistent with the projections delivered to Agent on or about December
10, 2005, to the extent that the Acquisition occurred during such period.
""BHPA" means Xxxxxxxxxx Harbor Parking Associates, L.L.C., a Delaware
limited liability company."
""Discount Notes" means the 12-1/2% Senior Discount Notes co-issued by
Majestic Holdco, LLC and Majestic Star Holdco, Inc. in the aggregate principal
amount of $63,500,000 due 2011."
""Fourth Amendment" means that certain Amendment Number Four to Loan
and Security Agreement dated as of December 21, 2005, by and among the Borrowers
and the Lender Group."
""Fourth Amendment Effective Date" means the date, if ever, that all
of the conditions set forth in Section 4 of the Fourth Amendment shall be
satisfied (or waived by Agent in its sole discretion)."
""Fourth Amendment Fee" has the meaning set forth in Section 2.11(e)."
""Holdings" means Majestic Holdco, LLC, an Indiana limited liability
company."
""MSC II" means The Majestic Star Casino II, Inc., an Indiana
corporation (formerly known as Xxxxx Indiana, Inc.)."
""MSCCC" means The Majestic Star Casino Capital Corp., an Indiana
corporation."
""MSCCC II" means Majestic Star Casino Capital Corp. II, an Indiana
corporation."
""MSHI" means Majestic Star Holdco, Inc., an Indiana corporation."
""Senior Unsecured Notes" means the 9-3/4% Senior Notes co-issued by
The Majestic Star Casino, LLC and Majestic Star Casino Capital Corp. II in the
aggregate principal amount of $200,000,000 due 2011."
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(c) Section 1.1 of the Loan Agreement is hereby further amended by amending
and restating the following definitions in their entirety as follows:
""Applicable Prepayment Premium" means, as of any date of
determination, an amount equal to (a) from and after the Fourth Amendment
Effective Date through and including December 31, 2007, 2.0% times the Maximum
Revolver Amount, (b) from and after January 1, 2008 through and including
December 31, 2008, 1.5% times the Maximum Revolver Amount, and (c) from and
after January 1, 2009 up to the Maturity Date, 1.0% times the Maximum Revolver
Amount."
""Applicable Unused Line Fee Percentage" means, as of any date of
determination, an amount equal to 0.25%."
""Base Rate Margin" means, as of any date of determination, the
following margin based upon Parent's most recent Adjusted EBITDA calculation
(determined as set forth in the following paragraph); provided, however, that
for the period from the Closing Date through the date Agent receives the
certified calculation of Parent's Adjusted EBITDA in respect of the testing
period ended on December 31, 2005 delivered by Parent pursuant to Section 6.3,
the applicable Base Rate Margin shall be 0.25 percentage points:
Level Adjusted EBITDA Base Rate Margin
----- --------------- ----------------
I greater than $100,000,000 0.00 percentage points
II equal to or greater than $90,000,000 and less 0.25 percentage points
than or equal to $100,000,000
III less than $90,000,000 0.50 percentage points
Except as set forth in the foregoing proviso, the Base Rate Margin
shall be based upon Parent's most recent Adjusted EBITDA calculation, which will
be calculated monthly based upon the 12 consecutive fiscal months then ended.
Except as set forth in the initial proviso in this definition, the Base Rate
Margin shall be re-determined each month on the first day of the month following
the date Parent delivers to Agent the certified calculation of Adjusted EBITDA
pursuant to Section 6.3 hereof; provided, however, that if Parent fails to
provide such certification when such certification is due, the applicable Base
Rate Margin shall be set at the margin in the row styled "Level III" as of the
first day of the month following the date on which the certification was
required to be delivered until the date on which such certification is delivered
(on which date (but not retroactively), without constituting a waiver of any
Default or Event of Default occasioned by the failure to timely deliver such
certification, the Base Rate Margin shall
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be set at the margin based upon the Adjusted EBITDA calculation disclosed by
such certification)."
""BHR Joint Venture" means Xxxxxxxxxx Harbor Riverboats, L.L.C., a
Delaware limited liability company."
""Change of Control" means (a) a majority of the members of the Board
of Directors of Parent do not constitute Continuing Directors, (b) Parent ceases
to own and control, directly or indirectly, 100% of the outstanding Stock of
each of its Restricted Subsidiaries extant as of the Fourth Amendment Effective
Date (including BHR and BHPA), (c) Permitted Holders cease to own and control,
beneficially, directly, and of record more than 60% of the issued and
outstanding Stock of Holdings, (e) a "change of control" (as that term is
defined in the Indenture as in effect on the Closing Date) has occurred, or (d)
Holdings ceases to own and control, beneficially, directly, and of record 100%
of the outstanding Stock of Parent."
""Guarantor" means, Majestic Investor, Majestic Investor Capital
Corp., Majestic Investor Holdings, BHPA, BHR Joint Venture, and all of the
current or future other Restricted Subsidiaries of Parent."
""Letter of Credit Fee" means, as of any date of determination, 2.00
percentage points."
""LIBOR Rate Margin" means, as of any date of determination, the
following margin based upon Parent's most recent Adjusted EBITDA calculation
(determined as set forth in the following paragraph); provided, however, that
for the period from the Closing Date through the date Agent receives the
certified calculation of Parent's Adjusted EBITDA in respect of the period ended
on December 31, 2005 delivered by Parent pursuant to Section 6.3, the applicable
LIBOR Base Rate Margin shall be 2.75 percentage points:
Level Adjusted EBITDA LIBOR Rate Margin
----- --------------- -----------------
I greater than $100,000,000 2.50 percentage points
II equal to or greater than $90,000,000 and less 2.75 percentage points
than or equal to $100,000,000
III less than $90,000,000 3.00 percentage points
Except as set forth in the foregoing proviso, the LIBOR Rate Margin
shall be based upon Parent's most recent Adjusted EBITDA calculation, which will
be calculated monthly based upon the 12 consecutive fiscal months then ended.
Except as
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set forth in the initial proviso in this definition, the LIBOR Rate Margin shall
be re-determined each month on the first day of the month following the date
Parent delivers to Agent the certified calculation of Adjusted EBITDA pursuant
to Section 6.3 hereof; provided, however, that if Parent fails to provide such
certification when such certification is due, the applicable LIBOR Rate Margin
shall be set at the margin in the row styled "Level III" as of the first day of
the month following the date on which the certification was required to be
delivered until the date on which such certification is delivered (on which date
(but not retroactively), without constituting a waiver of any Default or Event
of Default occasioned by the failure to timely deliver such certification, the
LIBOR Rate Margin shall be set at the margin based upon the Adjusted EBITDA
calculation disclosed by such certification)."
""Limited Recourse Guarantor" means Holdings."
(d) Section 2.11(c) of the Loan Agreement is hereby amended by (i) deleting
the phrase "5 Examiner-Days" appearing therein and replacing it with the
phrase "10 Examiner-Days", and (ii) deleting the number "$25,000,"
appearing at the end thereof and replacing it with the number "$50,000,".
(e) Section 2.11 of the Loan Agreement is hereby amended (i) by deleting
the phrase "(except in the case of the fee described in clause (d) of this
Section 2.11, which fee shall be distributed ratably among the Lenders as
set forth in such clause (d) hereof)" immediately following the words
"(irrespective of whether this Agreement is terminated thereafter) and
shall" appearing in the first sentence therein and replacing it with the
phrase "(except in the case of the fees described in clauses (d) and (e) of
this Section 2.11, which fees shall be distributed ratably among the
Lenders as set forth in such clauses (d) and (e) hereof)", (ii) by deleting
the word "and" at the end of clause (c), (iii) by deleting the period at
the end of clause (d) and replacing it with ", and", and (iv) by adding the
following new clause (e):
"(e) FOURTH AMENDMENT FEE. An amendment fee in the amount of $100,000
(the "Fourth Amendment Fee"), which amendment fee shall be fully earned on the
Fourth Amendment Effective Date, shall be distributed ratably among the Lenders
in accordance with their respective Pro Rata Shares, and shall be charged to
Borrowers' Loan Account on such date."
(f) Section 3.4 of the Loan Agreement is hereby amended and restated in its
entirety as follows:
"3.4 TERM. This Agreement shall continue in full force and effect for
a term ending on April 15, 2010 (the "Maturity Date"). The foregoing
notwithstanding, the Lender Group, upon the election of the Required Lenders,
shall have the right to terminate its obligations under this Agreement
immediately and without notice upon the occurrence and during the continuation
of an Event of Default."
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(g) The Loan Agreement is hereby amended by inserting the following new
Section 5.22 immediately following Section 5.21:
"5.22 MSCCC; MSCCC II; MSHI. None of MSCCC, MSCCC II and MSHI has any
assets of any kind or nature or has incurred any Indebtedness other than
Indebtedness evidenced by the Indenture as a co-issuer of the Notes, in the case
of MSCCC, or by the indenture governing the Discount Notes as a co-issuer of the
Discount Notes, in the case of MSHI, or by the indenture governing the Senior
Unsecured Notes as a co-issuer of the Senior Unsecured Notes, in the case of
MSCCC II."
(h) Section 6.3(a)(i) of the Loan Agreement is hereby amended and restated
in its entirety as follows:
"(i) (A) a company prepared consolidated and consolidating balance
sheet, income statement, and statement of cash flow covering Parent's and its
Restricted Subsidiaries' operations during such period, and (B) during the
period from and including the Fourth Amendment Effective Date through and
including December 31, 2006, a calculation of Parent's Adjusted EBITDA."
(i) Section 7.13(b)(iv)(B) of the Loan Agreement is hereby amended by
deleting the number "$10,000,000" appearing therein and replacing it with
the number "$15,000,000".
(j) Section 7.18(a)(i) of the Loan Agreement is hereby amended by deleting
the chart appearing therein and replacing it with the following chart:
"Applicable Amount Applicable Period
------------------ -----------------
$60,000,000 For the 12 month period
ending March 31, 2006
$65,000,000 For the 12 month period
ending June 30, 2006
$70,000,000 For the 12 month period
ending September 30, 2006
$80,000,000 For the 12 month period
ending December 31, 2006
$90,000,000 For the 12 month period
ending March 31, 2007 and for the 12 month period
ending on the last day of each
month thereafter"
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(k) Section 7.18(a)(ii) of the Loan Agreement is hereby amended by deleting
the chart appearing therein and replacing it with the following chart:
"Applicable Ratio Applicable Period
----------------- -----------------
1.85:1.0 For the 12 month period
ending March 31, 2006 and on the last day of each
fiscal quarter of Borrowers thereafter"
(l) Section 7.18(b)(i) of the Loan Agreement is hereby amended by amending
and restating the first sentence thereof in its entirety as follows:
"(i) CAPITAL EXPENDITURES. Capital Expenditures in any fiscal
year in excess of $20,000,000 other than (A) Capital Expenditures made or
incurred on or before June 30, 2007 in connection with the purchase of new
slot-machines or conversion of existing slot-machines, in each case in
connection with their conversion from cash-pay slot-machines to
ticket-in-ticket-out slot-machines at the casinos located in Black Hawk,
Colorado, and Tunica, Mississippi, in an aggregate amount of all such Capital
Expenditures described in this clause (A) not to exceed $7,500,000, and (B)
Capital Expenditures made or incurred on or before December 31, 2008 in
connection with the expansion of the casino in Black Hawk, Colorado, in an
aggregate amount not to exceed $25,000,000."
(m) The Loan Agreement is hereby amended by inserting the following new
Section 7.25 immediately following Section 7.24:
"7.25 MSCCC; MSHI. Permit MSCCC or MSHI to at any time acquire any
assets of any kind or nature, conduct any business of any kind or other take any
action which would cause either of MSCCC or MSHI to fail to comply with each of
the conditions for being an Unrestricted Subsidiary which are set forth in the
definition thereof in this Agreement."
3. CONSENT. The provisions of the Loan Agreement to the contrary
notwithstanding, each member of the Lender Group hereby (a) consents to the
consummation of the Acquisition in accordance with the terms of the Acquisition
Agreement, and (b) authorizes Agent to release MSCCC from each Loan Document to
which it is a party as of the date hereof. Each Borrower hereby covenants and
agrees that it will, on or before January 12, 2006, (a) deliver to Agent such
Mortgages, title insurance policies, surveys, Phase I Environmental Reports,
ship mortgages and other documents, opinions (including, without limitation, any
opinions with respect to the joinder of any parties to any of the Loan
Documents) of or agreements as Agent shall require to
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evidence the granting of a first priority Lien in favor of Agent with respect to
the Real Property and the vessel to be acquired in connection with the
Acquisition, (b) use its commercially reasonable efforts to cause the Indenture
Trustee to execute such subordination agreements as Agent shall reasonably
require (in recordable form) to provide record notice of the existence of the
Intercreditor Agreement, and (c) deliver to Agent true and correct copies of
each of the agreements and other documents executed in connection with the
Acquisition, this agreement and the issuance of the other Indebtedness that is
to be issued in connection therewith. The failure of the Borrowers to comply
with any of the foregoing shall constitute an immediate Event of Default.
4. 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:
(a) After giving effect to this Amendment, 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 such joinder and amendment documents as Agent
shall require so that (i) MSC II has been joined as an additional Borrower to
the Loan Agreement, (ii) BHR Joint Venture and BHPA has been joined as
additional Guarantors to the Guaranty, and each of MSCII, BHR Joint Venture and
BHPA have become parties to the other Loan Documents, (iii) Holdings has
executed a limited recourse guaranty and a stock pledge agreement, (iv) the
Stock of Parent acquired by Holdings, the Stock of MSC II, BHR and BHPA acquired
by Parent is pledged to secure the Obligations and the certificates evidencing
such Stock (together with appropriate Stock powers) are delivered to Agent,
together with such other documents and opinions as Agent shall require in
connection therewith, in each case, which are in form and substance reasonably
satisfactory to Agent;
(c) Agent and BDI shall have executed and delivered a release with respect
to the Loan Documents to which BDI is a party, which shall be in form and
substance satisfactory to Agent and BDI;
(d) Agent shall have received a true and correct copy of (i) the
Acquisition Agreement, the escrow agreement, the license agreement, the
transition services agreement and all other agreements or documents executed in
connection therewith, (ii) the supplemental indentures issued in connection with
the Indenture, (iii) the indenture governing the Discount Notes, and (iv) the
indenture governing the Senior Unsecured Notes, in each case, certified by a
vice president and chief financial officer of Parent as being true, correct and
complete copies thereof, as in effect on the date hereof;
(e) Agent shall have received the reaffirmation and consent of each
Guarantor and Limited Recourse Guarantor attached hereto as Exhibit A (the
"Consent"), duly
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executed and delivered by an authorized official of each Guarantor and of
Limited Recourse Guarantor;
(f) After giving effect to this Amendment, 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
(g) 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.
5. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby represents and warrants
to the Lender Group as follows:
(a) After giving effect to this Amendment, 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, 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,
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(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) After giving effect to this Amendment, 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.
6. 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.
7. 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, and except as expressly set forth herein, shall
neither excuse any future non-compliance with the Loan Agreement, nor shall
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.
8. 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
Amendment by telefacsimile shall be equally as effective as delivery of an
original executed counterpart of this Amendment. Any party delivering an
executed counterpart
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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.
9. 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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EXECUTION VERSION
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:
------------------------------------
Title:
---------------------------------
THE MAJESTIC STAR CASINO II, INC.,
an Indiana corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXXX MISSISSIPPI GAMING, LLC
a Mississippi limited liability company
By:
------------------------------------
Title:
---------------------------------
XXXXXX COLORADO GAMING, LLC
a Colorado limited liability company
By:
------------------------------------
Title:
---------------------------------
S-1
XXXXX FARGO FOOTHILL, INC.,
as Agent and as a Lender
By:
------------------------------------
Title:
---------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender
By:
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Title:
---------------------------------
ALLIED IRISH BANKS PLC.,
as a Lender
By:
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Title:
---------------------------------
CANPARTNERS INVESTMENTS IV, LLC,
as a Lender
By:
------------------------------------
Title:
---------------------------------
S-2
EXECUTION VERSION
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 THE MAJESTIC STAR CASINO, LLC, an Indiana limited
liability company ("MSC"), and each of MSC's Subsidiaries identified on the
signature pages thereof (such Subsidiaries, together with MSC, 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 XXXXX 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 Four to Loan and Security Agreement,
dated as of December 21, 2005 (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.
MAJESTIC HOLDCO, LLC,
an Indiana limited liability company
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
MAJESTIC INVESTOR, LLC,
a Delaware limited liability company
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
MAJESTIC INVESTOR HOLDINGS, LLC,
a Delaware limited liability company
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
MAJESTIC INVESTOR CAPITAL CORP.,
a Delaware corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXXXXXXX HARBOR PARKING ASSOCIATES,
LLC Delaware limited liability company
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
R-1
XXXXXXXXXX HARBOR RIVERBOATS, LLC,
a Delaware limited liability company
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
R-2
