Exhibit 10.1


 


 


 

















 


 


AMENDMENT
NO. 1 TO AGREEMENT AND PLAN OF MERGER


 


Amendment No.1, dated as
of February 24, 2003 (this “Amendment”) to the Agreement and Plan of Merger
(the “Agreement”) entered into as of December 23, 2002, by and among MTR
Gaming Group, Inc., a Delaware corporation (“Parent”), Racing Acquisition,
Inc., an Ohio corporation and wholly owned subsidiary of Parent (“Merger
Subsidiary”), and Scioto Downs, Inc., an Ohio corporation (the “Company”).
Parent, Merger Subsidiary and the Company are referred to collectively herein
as (the “Parties”).


 


RECITALS


 


                WHEREAS, Section 5.04 of the Agreement provides that
the Parent shall have a period of thirty days to determine the suitability of
the transactions contemplated therein in its sole and absolute discretion (the
“Due Diligence Period”) and further provides that the Parent shall be entitled
to reasonable extensions of the Due Diligence Period (not to exceed an
aggregate of thirty days) to the extent necessary for third parties to complete
their studies or inspections.


 


                WHEREAS, the Parties would like to further extend the
Due Diligence Period to facilitate the resolution of certain matters relating
to the studies and inspections being made by the Company.


 


                WHEREAS, as described herein, the Parties would like
to make certain other amendments to the Agreement.


 


                NOW, THEREFORE, in consideration of the foregoing and
the representations, warranties, covenants and agreements as set forth herein,
and other good and valuable consideration, the receipt and sufficiency of which
are acknowledged, the parties, intending to be legally bound, hereby agree as
follows:


 


1.             Incorporation.  The
recitals set forth above are incorporated herein as though more fully set
forth.  And, unless otherwise provided,
all defined terms shall have the meaning ascribed in the Agreement.


 


2.             Section 5.04.  The
Due Diligence Period shall be extended from February 24, 2003  up to and including March 11, 2003.


 


3.             Section 6.03.  The
following provision shall be added as Section 6.03(e):


 


“(e)         one of the following shall have
occurred:  (i) the participation of Mara
Enterprises, Inc. (“Mara”) in the multiple-employer pension plan which the
Company sponsors (the “Pension Plan”) shall have been separated in a manner
such that the Company shall neither be jointly and severally liable, nor be
contingently liable, with respect to any funded status deficit attributable to
Mara or (ii) in the event Scioto shall have submitted to all governmental
authorities having jurisdiction over the Pension Plan all filings required to
initiate the separation of the Pension Plan but shall be unable to effect such
separation due to the absence of decision by 


 


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those entities having jurisdiction over such
separation, then Mara shall escrow amounts sufficient to effect a separation.
To effect such an escrow, Mara shall contemporaneously with the Closing deposit
with a licensed and bonded trust company to hold in escrow for the protection
of the Parent an amount equal to the funded status deficit attributable to Mara
together with an amount equal to two (2) times Mara’s pro rata share of
administrative costs and Mara’s ongoing funding obligations (all of which may
be estimated) for the next twelve (12) months together with the entry into an
agreement by Mara with Parent whereby Mara shall indemnify and hold Parent
harmless against any and all liability arising from any funded status deficit
attributable to Mara.  For purposes of
this Amendment, the “funded status deficit” attributable to Mara shall mean the
excess of the projected benefit obligation attributable to Mara over the fair
value of the plan assets allocable to Mara.”


 


4.             Entire Agreement. 
Except as expressly amended or modified by the terms of this Amendment,
the Agreement shall remain unmodified and in full force and effect.


 


IN
WITNESS WHEREOF, the parties hereto have duly executed this Amendment, or have
caused this Amendment to be duly executed with legal and binding effect by
their respective authorized officers, in their individual capacity, as of the
date first written above.


 


	
   

  	
   

  	
  SCIOTO DOWNS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  by:

  	
  /s/
  Edward T. Ryan

  
	
   

  	
  Name:

  	
  Edward
  T. Ryan

  
	
   

  	
  Title:
  

  	
  President

  



 


 


	
   

  	
   

  	
  MTR GAMING GROUP, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  by:

  	
  /s/
  Edson R. Arneault

  
	
   

  	
  Name:

  	
  Edson
  R. Arneault

  
	
   

  	
  Title:
  

  	
  President
  and Chief Executive Officer

  



 


 


	
   

  	
   

  	
  RACING ACQUISITION, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  by:

  	
  /s/
  Edson R. Arneault

  
	
   

  	
  Name:

  	
  Edson
  R. Arneault

  
	
   

  	
  Title:
  

  	
  President

  



 


 


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