EXHIBIT 10.1
AMENDMENT NUMBER TWO TO LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER TWO TO LOAN AND SECURITY AGREEMENT (this
"Amendment"), dated as of March 1, 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:
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 and the Lender Group are parties to that certain
Amendment Number One to Loan and Security Agreement, dated as of May 4, 2004
(the "First Amendment");
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 Lender Group is 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.
2. FIRST AMENDMENT. The Loan Agreement, as amended by the First Amendment, shall
remain in full force and effect, except as specifically amended by this
Amendment.
3. AMENDMENTS TO LOAN AGREEMENT.
(a) Section 1.1 of the Loan Agreement is hereby amended by inserting
the following new definitions in proper alphabetical order:
"Second Amendment" means that certain Amendment Number Two to
Loan and Security Agreement dated as of March 1, 2005, by and among the
Borrowers and the Lender Group.
"Second Amendment Effective Date" means the date, if ever,
that all of the conditions set forth in Section 4 of the Second Amendment shall
be satisfied (or waived by Agent in its sole discretion).
(b) Section 7.18(b) of the Loan Agreement is amended by inserting the
following sentence at the end thereof:
"All amounts invested in connection with the purchase of the GNC Land
as permitted by clause (n) under the definition "Permitted Investments" (and not
any other Capital Expenditures, irrespective of whether any such other Capital
Expenditure would constitute a Permitted Investment) shall not be deemed
"Capital Expenditures" for purposes of this Section 7.18(b) and shall not be
subject to the fiscal year Capital Expenditure limitations set forth in this
Section 7.18(b)."
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) 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 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;
(c) 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
(d) 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) 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,
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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,
(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) 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 Sections 2 and 3 hereof, the Loan
Agreement, as amended by the First Amendment, 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, shall not
excuse future non-compliance with the Loan Agreement, shall not operate as a
waiver of any Default or Event of Default. To the extent any terms or provisions
of this Amendment
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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 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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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
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Title: Vice President & CFO
---------------------------------
XXXXXX MISSISSIPPI GAMING, LLC
a Mississippi limited liability company
By: /s/ Xxx X. Xxxxxxx
------------------------------------
Title: Vice President & CFO
---------------------------------
XXXXXX COLORADO GAMING, LLC
a Colorado limited liability company
By: /s/ Xxx X. Xxxxxxx
------------------------------------
Title: Vice President & CFO
---------------------------------
XXXXX FARGO FOOTHILL, INC.,
a California corporation, as Agent and
as a Lender
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Title: Vice President
---------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Title: Duly Authorized Signatory
---------------------------------
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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 ("Parent"), and each of Parent's Subsidiaries identified on
the signature pages thereof (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 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 Two to Loan and Security Agreement,
dated as of March 1, 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.
THE MAJESTIC STAR CASINO CAPITAL CORP.,
an Indiana corporation
By:
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Name:
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Title:
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MAJESTIC INVESTOR, LLC,
a Delaware limited liability company
By:
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Name:
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Title:
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MAJESTIC INVESTOR HOLDINGS, LLC,
a Delaware limited liability company
By:
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Name:
-----------------------------------
Title:
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MAJESTIC INVESTOR CAPITAL CORP.,
a Delaware corporation
By:
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Name:
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Title:
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