EXHIBIT 4.3
EXECUTION VERSION
SUPPLEMENTAL INDENTURE
This Supplemental Indenture, dated as of September 25, 2003 (the
"Supplemental Indenture"), is made by and between The Majestic Star Casino, LLC
and The Majestic Star Casino Capital Corp. (collectively, the "Company") and The
Bank of New York (formerly IBJ Whitehall Bank & Trust Company) (the "Trustee").
BACKGROUND
A. The Company and the Trustee are parties to that certain Indenture,
dated June 18, 1999 (the "Indenture").
B. Section 9.2 of the Indenture provides, among other things, that,
except as otherwise provided in the Indenture, upon the request of the Company
accompanied by a resolution of the Board of Directors of the Company (such terms
and all other capitalized terms used and not defined herein shall have the
meanings assigned to such terms in the Indenture), the Company and the Trustee
may amend or supplement the Indenture with the consent of the Holders of at
least a majority in principal amount of the Notes then outstanding.
C. The Company has offered to purchase all of the outstanding Notes upon
the terms and subject to the conditions set forth in the Offer to Purchase and
Solicitation of Consents, dated August 25, 2003, and the accompanying Letter of
Transmittal, as the same may be further amended, supplemented or modified (the
"Statement").
D. The Offer is conditioned upon, among other things, the execution of
this Supplemental Indenture implementing the Proposed Amendments (as defined in
the Statement) following the receipt of the Requisite Consents (as defined in
the Statement), and the Company has received the Requisite Consents.
E. This Supplemental Indenture shall only be effective if all of the
conditions set forth in the Statement have been satisfied or waived.
F. The Board of Directors or Manager (as applicable) of the Company has
duly authorized this Supplemental Indenture.
AGREEMENTS
NOW THEREFORE, the parties hereto hereby agree as follows:
1. Amendments to the Indenture. Pursuant to the terms of the Statement
and having received the Requisite Consents (as defined in the Statement), the
Indenture is hereby amended as follows:
(a) Delete the following sections in their entirety and, in the case
of each such section, insert in lieu thereof the phrase ["Intentionally
Omitted"]; and any and all references to
such sections, any and all obligations thereunder and any event of default
related solely to the following sections are hereby deleted throughout the
Indenture; and such sections and references shall be of no further force or
effect; and all definitions in the Indenture that are used exclusively in the
sections and clauses deleted pursuant to this Section 1 are hereby deleted:
(i) Section 4.3 of the Indenture (Reports);
(ii) Section 4.4 of the Indenture (Compliance Certificate);
(iii) Section 4.5 of the Indenture (Taxes);
(iv) Section 4.6 of the Indenture (Stay, Extension and Usury Laws);
(v) Section 4.7 of the Indenture (Limitation on Restricted
Payments);
(vi) Section 4.8 of the Indenture (Limitation on Restrictions on
Subsidiary Dividends);
(vii) Section 4.9 of the Indenture (Limitation on Incurrence of
Indebtedness);
(viii) Section 4.10 of the Indenture (Limitation on Asset Sales);
(ix) Section 4.11 of the Indenture (Limitation on Transactions with
Affiliates);
(x) Section 4.12 of the Indenture (Limitation on Liens);
(xi) Section 4.13 of the Indenture (Existence);
(xii) Section 4.14 of the Indenture (Repurchase upon a Change of
Control);
(xiii) Section 4.15 of the Indenture (Maintenance of Properties);
(xiv) Section 4.16 of the Indenture (Maintenance of Insurance);
(xv) Section 4.17 (Restrictions on Sale and Issuance of Subsidiary
Stock);
(xvi) Section 4.18 of the Indenture (Line of Business);
(xvii) Section 4.19 of the Indenture (Restrictions on BHR Joint
Venture);
(xviii) Section 4.20 of the Indenture (Restrictions on Activities of
Capital);
(xix) Section 10.1 (Collateral Documents);
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(xx) Section 10.2 (Opinions);
(xxi) Section 10.3 (Release of Collateral);
(xxii) Section 10.4 (Certificates of the Issuers);
(xxiii) Section 10.5 (Authorization of Action to be Taken by the
Trustee Under the Security Documents);
(xxiv) Section 10.6 (Authorization of Receipt of Funds by the Trustee
Under the Security Documents); and
(xxv) Section 10.7 (Guaranty).
2. Effect on Indenture.
(a) On and after the effective date of this Supplemental Indenture,
each reference in the Indenture to "this Indenture," "hereunder," "hereof" or
"herein" and other similar references shall mean and be a reference to the
Indenture as supplemented by this Supplemental Indenture, unless the context
otherwise requires.
(b) Except as specifically amended above, the Indenture shall remain
in full force and effect and is hereby ratified and confirmed.
3. Governing Law. This Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York, as applied to
contracts made and performed within the State of New York, without regard to the
principles of conflicts of law.
4. Headings. The headings of sections of this Supplemental Indenture
have been inserted for convenience of reference only, are not to be considered a
part hereof, and shall in no way modify or restrict any of the terms of
provisions hereof.
5. Counterpart Originals. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
6. Effective Date. This Supplemental Indenture shall become effective as
of the date hereof, but shall become operative on and after the Company has
delivered to the Trustee an Officers' Certificate accepting the Notes tendered
pursuant to the Offer.
7. Trust Indenture Act. If any provision of this Supplemental Indenture
limits, qualifies or conflicts with another provision of this Supplemental
Indenture or of the Indenture that is required to be included by the Trust
Indenture Act of 1939, as amended (the "TIA"), as in force on the date hereof,
the provisions required by the TIA shall control.
8. No Representations. The Trustee makes no representations as to the
validity or sufficiency of this Supplemental Indenture. The recitals and
statements herein are deemed to be those of the Company and not of the Trustee.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first written above.
THE MAJESTIC STAR CASINO, LLC
By: XXXXXX DEVELOPMENT, INC.
By:
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Its:
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THE MAJESTIC STAR CAPITAL CORP.
By:
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Its:
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THE BANK OF NEW YORK, as Trustee
By:
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Its:
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