Contract
EXHIBIT
4.6
FIRST
AMENDMENT TO INTERCREDITOR AND LIEN SUBORDINATION AGREEMENT
THIS
FIRST AMENDMENT TO INTERCREDITOR AND LIEN SUBORDINATION AGREEMENT dated as
of
December 21, 2005 (this “Amendment
Agreement”)
is
made by and among XXXXX FARGO FOOTHILL, INC., as the arranger and administrative
agent for certain lenders (the “Original
Agent”)
under
and pursuant to the Loan Agreement (as hereinafter defined), THE BANK OF
NEW
YORK TRUST COMPANY, N.A., as successor to The Bank of New York, solely in
its
capacity as trustee under the Indenture Loan Documents (as hereinafter defined)
(in such capacity, the “Trustee”),
THE
MAJESTIC STAR CASINO, LLC, an Indiana limited liability company (“Parent”),
and
those certain affiliates of Parent party hereto (each a “Debtor”,
and
individually and collectively and jointly and severally, the “Debtors”).
Each
capitalized term used in this Amendment Agreement and not defined here has
the
meaning given to it in the Intercreditor Agreement (as hereinafter
defined).
RECITALS
A. Parent,
The Majestic Star Casino Capital Corp., an Indiana corporation (together
with
Parent, the “Issuers”),
the
subsidiary guarantors identified on the signature pages thereto, and the
Trustee
entered into an Indenture, dated as of October 7, 2003 (the “Indenture”),
pursuant to which the Issuers and subsidiary guarantors incurred on such
date
indebtedness for the Notes in an aggregate principal amount at maturity of
$260,000,000.
B. The
Indenture was supplemented with two Supplemental Indentures each dated December
21, 2005 adding new Indenture Guarantors and providing for the Issuers and
Indenture Guarantors to incur additional indebtedness such that the total
indebtedness incurred for the Notes is now an aggregate principal amount
at
maturity of $300,000,000 (the Indenture, as supplemented, to be hereinafter
the
“Indenture”).
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C. The
repayment of the Indenture Secured Obligations (as hereinafter defined) is
secured by security interests in and liens on the assets and properties
described in the Pledge and Security Agreement dated October 7, 2003, as
joined
and supplemented pursuant to the Pledge Supplement and Pledge Joinder, each
dated as of the date hereof (the “Indenture
Security Agreement”),
made
by the Issuers and the Indenture Guarantors in favor of the Trustee for the
benefit of the Trustee and the Noteholders, the Pledge Agreement, dated as
of
the date hereof (as amended, supplemented, or otherwise modified from time
to
time in accordance with the terms of this Agreement, the “Indenture
Pledge Agreement”),
made
by Majestic Holdco, LLC, an Indiana limited liability company, in favor of
the
Trustee for the benefit of the Trustee and the Noteholders, the Trademark
Security Agreement, dated October 7, 2003, and as amended as of the date
hereof
(and as it may be further amended, supplemented, or otherwise modified from
time
to time in accordance with the terms of this Agreement, the Indenture
Trademark Security Agreement”),
made
by the Issuers and the Indenture Guarantors in favor of the Trustee for the
benefit of the Trustee and the Noteholders, certain preferred ship mortgages
(made as of the date hereof and from time to time hereafter, in each case
by
either of the Issuers or one or more if the Indenture Guarantors, as applicable,
in favor of the Trustee for the benefit of the Trustee and the Noteholders
(as
amended, supplemented, or otherwise modified from time to time in accordance
with the terms of this Agreement, each, a “Ship
Mortgage”),
and
certain real property mortgages (made as of the date hereof and from time
to
time hereafter, in each case by either or the Issuers or one or more of the
Indenture Guarantors, as applicable, in favor of the Trustee for the benefit
of
the Trustee and the Noteholders (as amended, supplemented, or otherwise modified
from time to time in accordance with the terms of this Agreement, each a
“Mortgage”
and,
together with the Indenture, the Indenture Security Agreement, the Indenture
Pledge Agreement, the Indenture Trademark Security Agreement, the Ship
Mortgages, and any other agreements, instruments or other documents that
evidence the lien of the Trustee in the Collateral (as defined below) executed
and delivered in connection therewith, in each case as amended, supplemented,
or
otherwise modified from time to time as amended, supplemented, or otherwise
modified from time to time in accordance with the terms of this Agreement,
the
“Indenture
Agreements”).
D. Parent,
Xxxxxx Mississippi Gaming, LLC, a Mississippi limited liability company,
and
Xxxxxx Colorado Gaming, LLC, a Colorado limited liability company, Original
Agent, and the lenders a party thereto (the “Original
Lenders”)
entered into a Loan and Security Agreement, dated as of October 7, 2003 (the
“Original
Loan Agreement”),
pursuant to which the Original Agent and the Original Lenders agreed, upon
the
terms and condition stated therein, to make certain loans and advances up
to the
principal amount of $80,000,000.
E. On
the
date hereof, Majestic Star Casino II, Inc., a Delaware corporation, was joined
as a borrower under the Original Loan Agreement, and Majestic Star Casino
II,
Inc, Parent, Xxxxxx Mississippi Gaming, LLC, Xxxxxx Colorado Gaming, LLC
(collectively the “Borrowers”),
Original Agent and Original Lenders agreed to Amendment Number Four to the
Loan
and Security Agreement (the Original Loan Agreement, as amended and joined,
to
be hereinafter the “Original
Loan Agreement”).
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F. The
Borrowers, the Lender Guarantors (as hereinafter defined) ) and the Original
Agent entered into those certain guaranties, guarantor security agreements,
control agreements, stock pledge agreements, preferred ship mortgages, trademark
security agreements, and mortgages, each as amended or joined as mutually
agreed
to in order to include the Lender Guarantor, and to release BDI from all
of its
pledge and guaranty obligations thereunder (the “Security
Documents,”
and
together with the Original Loan Agreement, the “Original
Loan Documents”).
G. Parent,
the Debtors a party thereto, Trustee and Original Agent are parties to that
certain Intercreditor and Lien Subordination Agreement dated as of October
7,
2003 (as amended, restated, supplemented or otherwise modified from time
to
time, the “Intercreditor
Agreement”).
H. Parent
and the Debtors have requested that Trustee and Original Agent amend the
Intercreditor Agreement as set forth herein.
I. Trustee
and Original Agent are willing to provide the amendment requested by Parent
and
Debtors subject to the terms and conditions set forth herein.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties agree to amend the Intercreditor
Agreement as follows:
1.
Defined
Terms in Recitals.
Each of
the terms defined in the Recitals to this Amendment Agreement which are also
defined in the Recitals to the Intercreditor Agreement shall have the meaning
given to them in the Recitals to this Amendment Agreement for all purposes
under
and interpretations of the Intercreditor Agreement.
2.
Amendments
to Definitions.
The
following definitions in Section 1.03 are hereby amended and restated as
follows:
“Indenture
Guarantors”
means
Majestic Investor, LLC, Majestic Investor Holdings, LLC, Majestic Investor
Capital Corp., Xxxxxx Mississippi Gaming, LLC, Xxxxxx Colorado Gaming, LLC,
Majestic Star Casino II, Inc., Majestic Star Casino Capital Corp. II, Xxxxxxxxxx
Harbor Parking Associates, LLC, and Xxxxxxxxxx Harbor Riverboats,
L.L.C.
“Lender
Guarantors”
means
Majestic Holdco, LLC, Majestic Investor, LLC, Majestic Investor Holdings,
LLC,
Majestic Investor Capital Corp., Xxxxxxxxxx Harbor Parking Associates, LLC,
and
Xxxxxxxxxx Harbor Riverboats, L.L.C.”
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3.
Amendment
of Section 5.02(d).
Section
5.02(d) is hereby amended by restating Section 5.02(d) in its entirety with
the
following:
“(d)
Notwithstanding anything to the contrary herein, in no event shall Indebtedness
represented by any notes issued pursuant to the Indenture, including any
Notes
(or represented by any other evidence of indebtedness for borrowed money
under
the Notes or the Indenture) at any time exceed an aggregate principal amount
equal to $330,000,000.”
4. Representations.
The
Original Agent represents and warrants to the Trustee that it has the requisite
power and authority under the Original Loan Agreement to enter into, execute,
deliver, and carry out the terms of this Amendment Agreement, for and on
behalf
of itself and the Lenders. The Trustee represents and warrants that it has
the
requisite power and authority under the Indenture to enter into, execute,
deliver, and carry out the terms of this Agreement on behalf of itself and
the
Noteholders.
5. Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York except as otherwise preempted by applicable federal
law.
6. Acknowledgment.
Each
Debtor hereby acknowledges that it has received a copy of this Amendment
Agreement and consents thereto, and agrees to recognize all rights granted
thereby to the Agent and the Trustee and will not do any act or perform any
obligation which is not in accordance with the agreements set forth in this
Amendment Agreement. Each Debtor further acknowledges and agrees that it
is not
an intended beneficiary or third party beneficiary.
7. Counterparts.
This
Amendment Agreement maybe executed in any number of counterparts, and it
is not
necessary that the signatures of all Parties be contained on any one counterpart
hereof, each counterpart will be deemed to be an original, and all together
shall constitute one and the same document.
8. Effect
of Amendment.
This
Amendment Agreement, 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 Intercreditor Agreement
expressly set forth in Section 1
hereof,
the Intercreditor Agreement shall remain unchanged and in full force and
effect.
Except as expressly set forth herein, the execution, delivery, and performance
of this Amendment Agreement shall not operate as a waiver of or as an amendment
of any right, power, or remedy of the Trustee or Original Agent as in effect
prior to the date hereof. The amendment set forth herein is limited to the
specifics hereof. To the extent any terms or provisions of this Amendment
Agreement conflict with those of the Intercreditor Agreement, the terms and
provisions of this Amendment Agreement shall control.
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IN
WITNESS WHEREOF, the Original Agent, the Trustee, and each Debtor has caused
this First Amendment to Intercreditor and Lien Subordination Agreement to
be
duly executed and delivered as of the date first above written.
ORIGINAL
AGENT:
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XXXXX
FARGO FOOTHILL, INC.
a
California corporation,
solely
in its capacity as Agent (and not individually)
By:
_____________________________
Name:
___________________________
Title:
____________________________
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TRUSTEE:
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THE
BANK OF NEW YORK TRUST COMPANY, N.A.,
solely
in its capacity as Trustee (and not individually)
By:
_____________________________
Name:
___________________________
Title:
____________________________
|
DEBTORS:
|
THE
MAJESTIC STAR CASINO, LLC,
an
Indiana limited liability company
By:
_____________________________
Name:
___________________________
Title:
____________________________
|
XXXXXX
MISSISSIPPI GAMING, LLC,
a
Mississippi limited liability company
By:
_____________________________
Name:
___________________________
Title:
____________________________
|
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XXXXXX
COLORADO GAMING, LLC,
a
Colorado limited liability company
By:
_____________________________
Name:
___________________________
Title:
____________________________
|
|
THE
MAJESTIC STAR CASINO CAPITAL CORP.,
an
Indiana corporation
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:
____________________________
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MAJESTIC
INVESTOR CAPITAL CORP.,
a
Delaware corporation
By:
_____________________________
Name:
___________________________
Title:
____________________________
MAJESTIC
STAR CASINO II, INC.,
a
Delaware corporation
By:
_____________________________
Name:
___________________________
Title:
____________________________
MAJESTIC
STAR HOLDCO, LLC
an
Indiana limited liability company
By:
_____________________________
Name:
___________________________
Title:
____________________________
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|
7
XXXXXXXXXX
HARBOR PARKING ASSOCIATES, LLC,
a
Delaware limited liability company
By:
_____________________________
Name:
___________________________
Title:
____________________________
XXXXXXXXXX
HARBOR RIVERBOATS, L.L.C.,
a
Delaware limited liability company
By:
_____________________________
Name:
___________________________
Title:
____________________________
MAJESTIC
STAR CASINO CAPITAL CORP. II,
an
Indiana corporation
By:
_____________________________
Name:
___________________________
Title:
____________________________
|
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