AMENDMENT NUMBER SIX TO LOAN AND SECURITY AGREEMENT
Exhibit
10.1
AMENDMENT
NUMBER SIX TO LOAN AND SECURITY AGREEMENT
THIS
AMENDMENT NUMBER SIX TO LOAN AND SECURITY AGREEMENT (this
“Amendment”),
dated
as of July 31, 2006, is entered into by and among THE
MAJESTIC STAR CASINO, LLC,
an
Indiana limited liability company (“Parent”),
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, 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:
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 Required
Lenders are 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.
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2. AMENDMENTS
TO LOAN AGREEMENT.
(a) 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
|
|
$75,000,000
|
For
the 12 month period ending December 31, 2006
|
|
$75,000,000
|
For
the 12 month period ending March 31, 2007
|
|
$75,000,000
|
For
the 12 month period ending June 30, 2007
|
|
$75,000,000
|
For
the 12 month period ending September 30, 2007
|
|
$75,000,000
|
For
the 12 month period ending December 31, 2007
|
|
$80,000,000
|
For
the 12 month period ending March 31, 2008
|
|
$80,000,000
|
For
the 12 month period ending June 30, 2008
|
|
$80,000,000
|
For
the 12 month period ending September 30, 2008
|
|
$80,000,000
|
For
the 12 month period ending December 31, 2008
|
|
$85,000,000
|
For
the 12 month period ending March 31, 2009
|
|
$85,000,000
|
For
the 12 month period ending June 30, 2009
|
|
$85,000,000
|
For
the 12 month period ending September 30, 2009
|
|
$85,000,000
|
For
the 12 month period ending December 31, 2009
|
|
$90,000,000
|
For
the 12 month period ending March 31, 2010 and for the 12 month period
ending on the last day of each month thereafter”
|
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(b) 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
|
|
1.80:1.0
|
For
the 12 month period ending March 31, 2006
|
|
1.50:1.0
|
For
the 12 month period ending June 30, 2006
|
|
1.50:1.0
|
For
the 12 month period ending September 30, 2006
|
|
1.50:1.0
|
For
the 12 month period ending December 31, 2006
|
|
1.50:1.0
|
For
the 12 month period ending March 31, 2007
|
|
1.50:1.0
|
For
the 12 month period ending June 30, 2007
|
|
1.50:1.0
|
For
the 12 month period ending September 30, 2007
|
|
1.50:1.0
|
For
the 12 month period ending December 31, 2007
|
|
1.60:1.0
|
For
the 12 month period ending March 31, 2008
|
|
1.60:1.0
|
For
the 12 month period ending June 30, 2008
|
|
1.60:1.0
|
For
the 12 month period ending September 30, 2008
|
|
1.60:1.0
|
For
the 12 month period ending December 31, 2008
|
|
1.70:1.0
|
For
the 12 month period ending March 31, 2009
|
|
1.70:1.0
|
For
the 12 month period ending June 30, 2009
|
|
1.70:1.0
|
For
the 12 month period ending September 30, 2009
|
|
1.70:1.0
|
For
the 12 month period ending December 31, 2009
|
|
1.80:1.0
|
For
the 12 month period ending March 31, 2010 and for the 12 month period
ending on the last day of each fiscal quarter of Borrowers
thereafter”
|
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(c) 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 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:
|
Fiscal
Year 2004
|
Fiscal
Year 2005
|
Fiscal
Year 2006
|
Fiscal
Year 2007
|
Fiscal
Year 2008
|
Fiscal
Year 2009
|
Fiscal
Year 2010
|
|
$18,000,000
|
$12,000,000
|
$25,000,000
|
$25,000,000
|
$30,000,000
|
$30,000,000
|
$30,000,000
|
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.”
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:
(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 an amendment fee of $50,000, which amendment fee shall
be
fully earned on the date hereof, shall be due and payable in full in cash on
the
date hereof, and shall be non-refundable when paid;
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(c) 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;
(d) 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
(e) 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) 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.
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, 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.
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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 Amendment by telefacsimile or electronic mail
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 or electronic mail 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.
[signature
page follows]
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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:
/s/ Xxx X.
Xxxxxxx
Name:
Xxx X.
Xxxxxxx
Title:
Vice President
and Chief Financial Officer
THE
MAJESTIC STAR
CASINO II, INC.,
an
Indiana
corporation
By:
/s/ Xxx X.
Xxxxxxx
Name:
Xxx X.
Xxxxxxx
Title:
Vice President
and Chief Financial Officer
XXXXXX
MISSISSIPPI
GAMING, LLC
a
Mississippi limited
liability company
By:
/s/ Xxx X.
Xxxxxxx
Name:
Xxx X.
Xxxxxxx
Title:
Vice President
and Chief Financial Officer
XXXXXX
COLORADO
GAMING, LLC
a
Colorado limited
liability company
By:
/s/ Xxx X.
Xxxxxxx
Name:
Xxx X.
Xxxxxxx
Title:
Vice President
and Chief Financial Officer
XXXXX
FARGO FOOTHILL,
INC.,
as
Agent and as a
Lender
By:
/s/ Xxxxx
Xxxxxxxxx
Name:
Xxxxx
Xxxxxxxxx
Title:
Vice
President
GENERAL
ELECTRIC
CAPITAL CORPORATION,
as
a
Lender
By:
/s/ Bond
Xxxxxxxx
Name:
Bond
Xxxxxxxx
Title:
Duly
Authorized Officer
ALLIED
IRISH
BANK,
as
a
Lender
By:
/s/ Xxxxxxx
Xxxxx
Name:
Xxxxxxx
Xxxxx
Title:
Vice
President
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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 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 Six to Loan and Security Agreement, dated as of July 31, 2006 (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]
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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:
/s/ Xxx X.
Xxxxxxx
Name:
Xxx X.
Xxxxxxx
Title:
Vice President
and Chief Financial Officer
XXXXXXXXXX
HARBOR
PARKING ASSOCIATES,
LLC,
Delaware
limited
liability company
By:
/s/ Xxx X.
Xxxxxxx
Name:
Xxx X.
Xxxxxxx
Title:
Vice President
and Chief Financial Officer
XXXXXXXXXX
HARBOR
RIVERBOATS, LLC,
a
Delaware limited
liability company
By:
/s/ Xxx X.
Xxxxxxx
Name:
Xxx X.
Xxxxxxx
Title:
Vice President
and Chief Financial Officer
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