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 WELLS 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 ”).
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, Barden Mississippi Gaming,
LLC, a Mississippi limited liability company, and Barden 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, Barden Mississippi Gaming, LLC, Barden Colorado
Gaming, LLC (collectively the “ Borrowers ”),
Original Agent and Original Lenders agreed to Amendment Number Four
to the Loan and Security Agreem
