Exhibit
10.1


 




 





 


 


FOURTH AMENDED AND RESTATED


CREDIT AGREEMENT


Dated as of December 27, 2005


 


among


 


MTR GAMING GROUP, INC., a
Delaware corporation,


MOUNTAINEER PARK, INC., a West
Virginia corporation,


SPEAKEASY GAMING OF LAS VEGAS,
INC.,


a Nevada corporation,


PRESQUE ISLE DOWNS, INC., a
Pennsylvania corporation,


SCIOTO DOWNS,
INC., an Ohio corporation (“SDI”), successor by

merger to RACING ACQUISITION, INC., an Ohio corporation and

SPEAKEASY GAMING OF FREMONT, INC., a Nevada corporation


as Borrowers


 


WELLS FARGO BANK, National
Association,


as Agent Bank, Swingline Lender,
and L/C Issuer


 


and the LENDERS referenced therein


 




 





 





















 


FOURTH AMENDED AND RESTATED


CREDIT
AGREEMENT


 


THIS FOURTH AMENDED AND
RESTATED CREDIT AGREEMENT (“Credit Agreement”) is made and entered into as of
the 27th day of December, 2005, by and among MTR GAMING GROUP, INC.,
a Delaware corporation (“MTRI”), MOUNTAINEER PARK, INC., a West Virginia
corporation (“MPI”), SPEAKEASY GAMING OF LAS VEGAS, INC., a Nevada corporation
(“SGLVI”), PRESQUE ISLE DOWNS, INC., a Pennsylvania corporation (“PIDI”),
SCIOTO DOWNS, INC., an Ohio corporation (“SDI”), successor by merger to RACING
ACQUISITION, INC., an Ohio corporation and SPEAKEASY GAMING OF FREMONT, INC., a
Nevada corporation (“SGFI” and together with MTRI, MPI, SGLVI, PIDI and SDI,
collectively referred to as the “Borrowers”), each financial institution whose
name is set forth on the signature pages of this Credit Agreement and each
lender which may hereafter become a party to this Credit Agreement pursuant to
Section 10.10(b) (each individually a “Lender” and collectively the “Lenders”),
WELLS FARGO BANK, National Association, as the swingline lender (herein in such
capacity, together with its successors and assigns, the “Swingline Lender”),
and WELLS FARGO BANK, National Association, as the issuer of letters of credit
following the Restatement Date (in such capacity, together with its successors
and assigns, the “L/C Issuer”) and WELLS FARGO BANK, National Association, as
administrative and collateral agent for the Lenders, Swingline Lender and L/C
Issuer (herein, in such capacity, called the “Agent Bank” and, together with
the Lenders, Swingline Lender and L/C Issuer, collectively referred to as the “Banks”).


 


R E C I T A L S:


 


WHEREAS:


 


A.            In this Credit Agreement all
capitalized words and terms shall have the respective meanings and be construed
herein as hereinafter provided in Section 1.01 of this Credit Agreement and
shall be deemed to incorporate such words and terms as a part hereof in the same
manner and with the same effect as if the same were fully set forth.


 


B.            MPI, SGLVI, PIDI, SDI and SGFI are
wholly owned subsidiaries of MTRI.  As of
the date hereof, MTRI, MPI, SGLVI, PIDI, SDI and SGFI are indebted to WFB and
other lenders as set forth in the Existing Credit Agreement under the terms of
the Existing Credit Facility.


 


C.            In connection with the application
for a license to conduct gaming activities at the PIDI Facility, the PGCB has
required that PIDI cause a letter of credit to


 





















 


be issued in the amount of Fifty Million
Dollars ($50,000,000.00) in favor of the Commonwealth of Pennsylvania in
compliance with the requirements of Section 441.10(f) of the PGCB
Regulations (the “PIDI License Letter of Credit”).


 


D.            The Borrowers desire to fully amend
and restate the Existing Credit Facility for the purpose of increasing the
Aggregate Commitment from Fifty Million Dollars ($50,000,000.00) to Eighty-Five
Million Dollars ($85,000,000.00) and increasing the maximum aggregate amount of
the letter of credit subfacility from Ten Million Dollars ($10,000,000.00) to
Fifty-Five Million Dollars ($55,000,000.00) and to provide for the issuance of
the PIDI License Letter of Credit for a term of up to two (2) years.


 


E.             Lenders are willing to increase the
Credit Facility to the principal amount of Eighty-Five Million Dollars
($85,000,000.00) at any time outstanding, including an increase of the letter
of credit subfacility for the issuance of Letters of Credit to the maximum
aggregate amount of Fifty-Five Million Dollars ($55,000,000.00) at any time
outstanding, all on the terms and subject to the conditions, covenants and
understandings hereinafter set forth and contained in each of the Loan
Documents.


 


NOW, THEREFORE, in
consideration of the foregoing, and other valuable considerations as
hereinafter described, the parties hereto do promise, covenant and agree as
follows:


 


ARTICLE I


 


DEFINITIONS


 


Section 1.01.                Definitions.  For the purposes of this Credit Agreement,
each of the following terms shall have the meaning specified with respect
thereto, unless a different meaning clearly appears from the context:


 


“Acquisition” means any transaction, or any
series of related transactions, consummated after the Closing Date, by which
any member of the Borrower Consolidation directly or indirectly acquires
(i) any real property that does not constitute an Expansion Capital
Expenditure, (ii) any New Venture or any ongoing business, or
(iii) all or substantially all of the assets of any firm, partnership,
joint venture, limited liability company, corporation or division thereof,
whether through purchase of assets, merger or otherwise.


 


“Additional Property Permitted Encumbrances”
shall mean, at any particular time with respect to any Compliant Additional
Property or Noncompliant Additional Property, (i) Liens for taxes, assessments
or governmental charges not then due, payable and delinquent, (ii) statutory
Liens for labor or materials or liens for taxes, assessments or governmental
charges not then required to be paid pursuant to


 


2





















 


Section 5.10, (iii) Liens in favor of Agent Bank or any Lender
created or contemplated by the Security Documentation, (iv) Liens consented to
in writing by Agent Bank upon the approval of Requisite Lenders, (v) Liens
of legally valid capital leases and purchase money security interests for
acquired FF&E up to the maximum amount permitted under
Section 6.09(c), and only to the extent of the lesser of the purchase
money loan or the fair market value of the acquired FF&E at the time of the
acquisition thereof, (vi) Liens of legally valid leases for FF&E,
(vii) easements, licenses or rights-of-way, now existing or hereafter granted
to any Governmental Authority or public utility providing services to the
Restricted Subsidiary or Restricted Subsidiary Venture, (viii) judgment and
attachment Liens which do not constitute an Event of Default,
(ix) statutory or other Liens of landlords and Liens of carriers,
warehousemen, mechanics, customs and revenue authorities and materialmen and
other similar Liens imposed by law incurred in the ordinary course of business
which could not reasonably be expected to cause a Material Adverse Change and
which are discharged in accordance with Section 5.04, (x) Liens incurred
or deposits made in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other types of social security, or to
secure the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, trade contracts, performance and
return-of-money bonds and other similar obligations; (xi) leases or
subleases granted to others not interfering in any material respect with the
ordinary conduct of the business of such Restricted Subsidiary; (xii) the
replacement or renewal of any Lien otherwise permitted hereunder;
(xiii) minor defects, encroachments or irregularities in title not
interfering in any material respect with the ordinary conduct of the business
of the Borrower which owns such property; and (xiv) liens, encumbrances
and restrictions shown on Schedule B of the applicable Additional Property
Title Policy.


 


“Additional Property Title
Policy” shall have the meaning set forth in Section 5.32.


 


“Adjusted Fixed Charge Coverage
Ratio” as of the end of any Fiscal Quarter shall mean with reference to the
Borrower Consolidation:


 


For the
Fiscal Quarter under review, together with the most recently ended three (3)
preceding Fiscal Quarters, the sum of: (i) EBITDA, less (ii) the aggregate
amount of Distributions actually paid, less (iii) the aggregate amount of
actually paid federal and state taxes on or measured by income, less
(iv) the aggregate amount of the Capital Expenditure Proxy Amount


 


Divided
by ( ̧)


 


The sum
of: (i) Interest Expense (expensed and capitalized) determined for the Fiscal
Quarter under review together with the most recently ended three


 


3





















 


(3)
preceding Fiscal Quarters, plus (ii) the current portion of all interest
bearing Indebtedness as of the end of the Fiscal Quarter under review, plus
(iii) the current portion of Capitalized Lease Liabilities as of the end
of the Fiscal Quarter under review.


 


“Affiliate”, as applied to any
Person, means any other Person directly or indirectly controlling, controlled
by, or under common control with, that Person. 
For the purposes of this definition, “control” (including, with
correlative meanings, the terms “controlling”, “controlled by” and “under
common control with”), as applied to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of that Person, whether through the ownership of voting securities
or by contract or otherwise.


 


“Agent Bank” shall mean WFB in
its capacity as administrative and collateral agent for Lenders.


 


“Aggregate Commitment” shall
mean reference to the aggregate amount committed by Lenders for advance to or
on behalf of the Borrower Consolidation as Borrowings under the Credit
Facility in the initial principal amount of Eighty-Five Million Dollars
($85,000,000.00), as may be reduced from time to time by: (i) Voluntary
Permanent Reductions, and/or (ii) Mandatory Commitment Reductions.


 


“Aggregate Outstandings” shall
mean collective reference to the sum of the Funded Outstandings, Swingline
Outstandings and L/C Exposure as of any given date of determination.


 


“Alternative Payments” shall
mean the “Alternative Payments” as defined and described in the Scioto Merger
Agreement.


 


“Applicable Margin” means for
any Base Rate Loan or LIBOR Loan, the applicable percentage amount to be added
to the Base Rate or LIBO Rate, as the case may be, as follows: (i) commencing
on the Restatement Date and continuing until the Rate Adjustment Date, 2.75% to
be added to the Base Rate and 4.00% to be added to the applicable LIBO Rate;
and (ii) commencing on the Rate Adjustment Date and continuing until Credit
Facility Termination, the margin rates as set forth in Table One below in each
instance based on the Leverage Ratio calculated with regard to the Borrower
Consolidation as of each Fiscal Quarter end, commencing with the Fiscal Quarter
ending December 31, 2005 (or in the case of termination of the PIDI
License Letter of Credit prior to March 1, 2006, as the most recently
ended Fiscal Quarter), together with the immediately preceding three (3) Fiscal
Quarters on a four (4) Fiscal Quarter basis, any change in the applicable
percentage amount by reason thereof to be effective as of the 1st day of the third
(3rd) month immediately following each such Fiscal Quarter end:


 


4





















 




	
   

  	
   

  	
  TABLE ONE

  	
   

  	
  TABLE TWO

  	
   

  
	
  Leverage
  Ratio

  	
   

  	
  Base Rate

  Margin

  	
   

  	
  LIBO

  Rate

  Margin

  	
   

  	
  Commitment

  Percentage

  	
   

  
	
  Greater than or equal to 3.50 to 1.00

  	
   

  	
  2.75

  	
  %

  	
  4.00

  	
  %

  	
  0.75

  	
  %

  
	
  Greater than or equal to 3.00 to 1.00 but less than 3.50 to 1.00

  	
   

  	
  2.25

  	
  %

  	
  3.50

  	
  %

  	
  0.75

  	
  %

  
	
  Greater than or equal to 2.50 to 1.0 but less than 3.00 to 1.00

  	
   

  	
  1.75

  	
  %

  	
  3.00

  	
  %

  	
  0.625

  	
  %

  
	
  Greater than or equal to 2.00 to 1.0 but less than 2.50 to 1.00

  	
   

  	
  1.25

  	
  %

  	
  2.50

  	
  %

  	
  0.500

  	
  %

  
	
  Less than 2.00 to 1.00

  	
   

  	
  0.75

  	
  %

  	
  2.00

  	
  %

  	
  0.375

  	
  %

  






 


“Arneault” shall mean Edson
(Ted) Arneault, an individual, President and Chief Executive Officer of MTRI as
of the Restatement Date.


 


“Assets” shall mean the total
assets of the Borrower Consolidation determined in accordance with GAAP.


 


“Assignment and Assumption
Agreement” shall mean the document evidencing an assignment of a Syndication
Interest by any Lender to an Eligible Assignee in the form of the Assignment,
Assumption and Consent Agreement marked “Exhibit H”, affixed hereto and by
this reference incorporated herein and made a part hereof.


 


“Authorized Officer(s)” shall
mean, relative to the Borrower Consolidation, those of the respective officers
whose signatures and incumbency shall have been certified to Agent Bank and the
Banks as required in Section 3.05(iv) of the Credit Agreement with the
authority and responsibility to deliver Notices of Borrowing, Notice of
Swingline Advances, Continuation/Conversion Notices, Pricing Certificates,
Compliance Certificates and all other requests, notices, reports, consents,
certifications and authorizations on behalf of Borrowers and the Borrower
Consolidation.


 


“Available Borrowings” shall
mean, at any time, and from time to time, the aggregate amount available to
Borrowers for a Borrowing or issuance of a Letter of Credit not exceeding the
amount of the Maximum Availability, as of each date of determination.


 


“Bank Facilities” shall mean
collective reference to the Credit Facility, Swingline Facility and L/C
Facility.


 


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“Banking Business Day” means
(a) with respect to any Borrowing, payment or rate determination of LIBOR
Loans, a day, other than a Saturday or Sunday, on which Agent Bank is open for
business in San Francisco and on which dealings in Dollars are carried on in
the London interbank market, and (b) for all other purposes any day
excluding Saturday, Sunday and any day which is a legal holiday under the laws
of the States of California and/or Nevada, or is a day on which banking
institutions located in California and/or Nevada are required or authorized by
law or other governmental action to close.


 


“Bankruptcy Code” shall mean the United
States Bankruptcy Code, as amended, 11 U.S.C. Section 101, et seq.


 


“Banks” shall have the meaning set forth in
the Preamble to this Credit Agreement.


 


“Base Rate” shall mean, as of any date of
determination, the rate per annum equal to the higher of (a) the Prime
Rate in effect on such date and (b) the Federal Funds Rate in effect on such
date plus one-half of one percent (1/2 of 1%) (fifty basis points).


 


“Base Rate Loan” shall mean reference to that
portion of the unpaid principal balance of the Credit Facility bearing interest
with reference to the Base Rate plus the Applicable Margin.


 


“Borrower Consolidation” shall mean
collective reference to Borrowers and each Restricted Subsidiary created in
accordance with Section 5.27 on a consolidated basis, without regard to
any Unrestricted Subsidiary.


 


“Borrowers” shall mean collective reference
to MTRI, MPI, SGLVI, PIDI, SDI and SGFI.


 


“Borrowing(s)” shall mean collective
reference to such amounts as Borrowers may request from time to time to be
advanced under the Credit Facility by Notice of Borrowing in the manner
provided in Section 2.03, or at the request of Agent Bank pursuant to
Section 2.08 or 2.14.


 


“Breakage Charges” shall have the meaning set
forth in Section 2.07(c) of the Credit Agreement.


 


6





















 


“Capital Expenditure Proxy Amount” as used
herein shall mean two percent (2.0%) of revenues net of promotional allowances
determined for the four (4) consecutive Fiscal Quarter period ending with the
Fiscal Quarter under review.


 


“Capital Expenditures” shall mean, for any
period, without duplication, the aggregate of all expenditures (whether paid in
cash or accrued as liabilities during that period and including Capitalized
Lease Liabilities) by a Borrower or the Borrower Consolidation, as the context
may require, during such period that, in conformity with GAAP, are required to
be included in or reflected by the property, plant or equipment or similar
fixed or capital asset accounts reflected in the balance sheet of a Borrower or
the Borrower Consolidation, as the context may require (including equipment
which is purchased simultaneously with the trade-in of existing equipment owned
by Borrower or the Borrower Consolidation, as the context may require, to the
extent of (a) the gross amount of such purchase price less
(b) the cash proceeds of trade-in credit of the equipment being traded in
at such time), but excluding capital expenditures made in connection with the
replacement or restoration of assets, to the extent reimbursed or refinanced
from insurance proceeds paid on account of the loss of or damage to the assets
being replaced or restored, or from awards of compensation arising from the
taking by condemnation of or the exercise of the power of eminent domain with
respect to such assets being replaced or restored.


 


“Capital Proceeds” shall mean the proceeds
received by the Borrower Consolidation from (i) partial or total condemnation
or destruction of any part of the Collateral, (ii) insurance proceeds (other
than rent insurance and business interruption insurance) received in connection
with damage to or destruction of the Collateral, and (iii) the sale, transfer,
conveyance or other disposition of any portion of the Collateral in accordance
with the provisions of this Credit Agreement (not including, however, any
proceeds received by Borrowers, or any of them, from a sale, condemnation,
damage or destruction of FF&E or other personal property if such FF&E
or other personal property is replaced by items of equivalent value and
utility, in each case such exclusion to apply only during any period in which
no Default or Event of Default has occurred and is continuing).


 


“Capitalized Lease Liabilities” means all
monetary obligations of the Borrower Consolidation under any leasing or similar
arrangement which, in accordance with GAAP, would be classified as capitalized
leases, and, for purposes of this Credit Agreement, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with GAAP, and the stated maturity thereof shall be the date of the last
payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.


 


7





















 


“Cash” shall mean, when used in connection
with any Person, all monetary and non-monetary items owned by that Person that
are treated as cash in accordance with GAAP.


 


“Cash Collateral Account” shall mean the
restricted depository savings account to be established by Borrowers or Agent
Bank on behalf of Borrowers with L/C Issuer at its offices located at 3800
Howard Hughes Parkway, Las Vegas, Nevada, or at such other office located in
the United States as may be designated from time to time by L/C Issuer, for the
purpose of depositing Cash collateral for the aggregate L/C Exposure upon the
occurrence of any Event of Default.


 


“Cash Collateral Pledge Agreement” shall mean
the Pledge and Assignment of Savings Account Agreement to be executed by
Borrowers in favor of L/C Issuer as of the Restatement
Date as the same may be amended or modified from time to time under the
terms of which all sums held from time to time in the Cash Collateral Account
are pledged in favor of L/C Issuer to secure repayment of any funding required
under any outstanding Letters of Credit, a copy of the form of which Cash
Collateral Pledge Agreement is marked “Exhibit R”, affixed to the Credit
Agreement and by this reference incorporated herein and made a part hereof.


 


“Cash Equivalents” shall mean, when used in
connection with any Person, that Person’s Investments in:


 


(a)           Government
Securities due within one (1) year after the date of the making of the
Investment;


 


(b)           readily marketable
direct obligations of any State of the United States of America given on the
date of such Investment a credit rating of at least Aa by Moody’s Investors
Service, Inc. or AA by Standard & Poor’s Corporation, in each case due
within one (1) year from the making of the Investment;


 


(c)           certificates of
deposit issued by, bank deposits in, eurodollar deposits through, bankers’
acceptance of, and repurchase agreements covering Government Securities
executed by, United National Bank of West Virginia or any bank incorporated
under the laws of the United States of America or any State thereof and having
on the date of such Investment combined capital, surplus and undivided profits
of at least Two Hundred Fifty Million Dollars ($250,000,000.00), or total
assets of at least Five Billion Dollars ($5,000,000,000.00), in each case due
within one (1) year after the date of the making of the Investment;


 


8





















 


(d)           certificates of
deposit issued by, bank deposits in, eurodollar deposits through, bankers’
acceptances of, and repurchase agreements covering Government Securities
executed by, any branch or office located in the United States of America of a
bank incorporated under the laws of any jurisdiction outside the United States
of America having on the date of such Investment combined capital, surplus and
undivided profits of at least Five Hundred Million Dollars ($500,000,000.00),
or total assets of at least Fifteen Billion Dollars ($15,000,000,000.00) in
each case due within one year after the date of the making of the Investment;


 


(e)           repurchase
agreements covering Government Securities executed by a broker or dealer
registered under Section 15(b) of the Securities Exchange Act of 1934 having on
the date of the Investment capital of at least One Hundred Million Dollars
($100,000,000.00), due within thirty (30) days after the date of the making of
the Investment; provided that the maker of the Investment receives
written confirmation of the transfer to it of record ownership of the
Government Securities on the books of a “primary dealer” in such Government
Securities on the books of such registered broker or dealer, as soon as
practicable after the making of the Investment;


 


(f)            readily marketable
commercial paper of corporations doing business in and incorporated under the
laws of the United States of America or any State thereof or of any corporation
that is the holding company for a bank described in clauses (c) or (d) above
given on the date of such Investment a credit rating of at least P-1 by Moody’s
Investors Service, Inc. or A-1 by Standard & Poor’s Corporation, in each
case due within three hundred sixty-five (365) days after the date of the
making of the Investment;


 


(g)           “money market
preferred stock” issued by a corporation incorporated under the laws of the
United States of America or any State thereof given on the date of such
Investment a credit rating of at least Aa by Moody’s Investors Service, Inc. or
AA by Standard & Poor’s Corporation, in each case having an investment
period not to exceed fifty (50) days; provided that (i) the amount of
all such Investments issued by the same issuer does not exceed Five Million
Dollars ($5,000,000.00) and (ii) the aggregate amount of all such
Investments does not exceed Fifteen Million Dollars ($15,000,000.00); and


 


(h)           a readily redeemable
“money market mutual fund” sponsored by a bank described in clauses (c) or (d)
hereof, or a registered broker or dealer described in clause (e) hereof, that
has and maintains an investment policy limiting its investments primarily to
instruments of the types described


 


9





















 


in
clauses (a) through (g) hereof and having on the date of such Investment total
assets of at least One Billion Dollars ($1,000,000,000.00).


 


“Change of Control” shall mean
the occurrence of any of the following:


 


(a)           Any “person” or “group”
(as such terms are defined in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended) or their Affiliates, own or control, more
than forty percent (40%) of the common voting stock of MTRI; or


 


(b)           During any period of
twenty-four (24) consecutive months commencing after the Closing Date,
individuals who at the beginning of such period constituted MTRI’s Board of
Directors (together with any new or replacement directors whose election by
MTRI’s Board of Directors or whose nomination for election by MTRI’s
shareholders, was approved by a vote of at least a majority of the directors
then still in office who were either directors at the beginning of such period
or whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the directors then in office; or


 


(c)           MTRI fails to own,
directly or indirectly, one hundred percent (100%) of the capital stock
interests of MPI, SGLVI, PIDI, Scioto Downs, Inc., an Ohio corporation and
Speakeasy Gaming of Fremont, Inc., a Nevada corporation.


 


“Closing Date” shall mean reference to
March 28, 2003, the date the Existing Credit Facility was closed.


 


“Collateral” shall mean: (a) a
collective reference to the MPI Collateral, SGLVI Collateral, SDI Collateral
and the MTRI Collateral; and (b) any and all other property and/or intangible
rights, interests or benefits inuring to or in favor of Borrowers which are in
any manner assigned, pledged, encumbered or otherwise hypothecated in favor of
Lenders or Agent Bank on behalf of the Lenders to secure repayment of the Bank
Facilities.


 


“Collateral Properties” shall
mean collective reference to the real properties, improvements and associated
FF&E which are pledged and encumbered as Collateral securing repayment of
the Bank Facilities from time to time, which shall consist of the MPI Real
Property and SGLVI Real Property, together with any other real property or
interests therein which may be held by Agent Bank from time to time to secure
repayment of the Bank Facilities.


 


10





















 


“Commencement of Construction” shall mean the
start of the actual construction of works of improvement by breaking ground on
a Construction Project.


 


“Commercial Letter(s) of Credit”
shall mean a letter or letters of credit issued by L/C Issuer pursuant to
Section 2.14 of the Credit Agreement for the purpose of assuring payment
for goods, equipment or materials supplied to any member of the Borrower
Consolidation.


 


“Commitment Fee” shall have the
meaning ascribed to such term in Section 2.09(b) of this Credit Agreement.


 


“Compliance Certificate” shall mean a
compliance certificate as described in Section 5.08(e) which is more
particularly described on “Exhibit D”, affixed hereto and by this reference
incorporated herein and made a part hereof.


 


“Compliant Additional Property” shall mean a
collective reference to that real property acquired by Borrowers prior to the
Restatement Date: (i) which is not subject to the Existing Security
Documentation; (ii) for which Agent Bank has received acceptable certifications
that such real property is not situate within a 100 year flood zone, or flood
insurance acceptable to the Agent Bank has been obtained; (iii) for which Agent
Bank has determined that no additional environmental investigation or
remediation is required as a condition of encumbering such real property as
security for the Existing Credit Facility. 
The Compliant Additional Property is described by Exhibit O attached
hereto and incorporated by reference herein.


 


“Consent Order” shall mean the Consent Order
and Agreement entered into by PIDI and International Paper with the DEP
concerning the remediation of certain “identified contamination” described in
such Consent Order in accordance with a remediation plan proposed by PIDI.


 


“Construction Project(s)” shall mean, as the
context may require: (i) the PIDI Construction Project, (ii) the SDI
Construction Project, and/or (iii) any other construction project for
which the projected or budgeted cost to complete, including all Expansion
Capital Expenditures, is equal to or in excess of Fifteen Million Dollars
($15,000,000.00).


 


“Construction Project Reviews” shall mean,
with reference to each of the Construction Projects, a quarterly review of such
Construction Project by Lenders’ Consultant, including, without limitation:


 


11





















 


(a)           a review of each set of plans and specifications and
determination and acceptability of documentation relating to each applicable
Construction Project.


 


(b)           site inspections of the applicable Construction Project to
verify:


 


(i)            the percentage of construction completed;


 


(ii)           the applicable Construction Project is in substantial compliance
with the applicable governing construction documentation, ie., plans,
specifications, construction budgets and approved change orders, etc.;


 


(c)           A review of budgetary aspects, including construction cost
and project completion analysis on a monthly basis.


 


“Contingent Liability(ies)” shall mean, as to
any Person any obligation of such Person guaranteeing or having the economic
effect of guaranteeing any Indebtedness, leases or dividends (“primary
obligations”) of any other Person that is not a Borrower hereunder (the “primary
obligor”) in any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not contingent,
(a) to purchase any such primary obligation or any property constituting
direct or indirect security therefor, (b) to advance or supply funds
(i) for the purchase or payment of any such primary obligation or
(ii) to maintain working capital or equity capital of the primary obligor
or otherwise to maintain the net worth or solvency of the primary obligor,
(c) to purchase property, securities or services primarily for the purpose
of assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation, (d) to make
payment in respect of any net liability arising in connection with any Interest
Rate Hedges, foreign currency exchange agreement, commodity hedging agreement
or any similar agreement or arrangement in any such case if the purpose or
intent of such agreement is to provide assurance that such primary obligation
will be paid or discharged, or that any agreements relating thereto will be
complied with, or that the holders of such primary obligation will be protected
(in whole or in part) against loss in respect thereof or (e) otherwise to
assure or hold harmless the holder of such primary obligation against loss in
respect thereof; provided, however, that the term Contingent Liability shall
not include endorsements of instruments for deposit or collection in the ordinary
course of business, trade payables incurred in the ordinary course of business
and less than ninety (90) days in arrears. 
The amount of any Contingent Liability shall be deemed to be an amount
equal to the stated or determinable amount of the primary obligation in respect
of which such Contingent Liability is made or, if not stated or determinable,
the reasonably anticipated


 


12





















 


liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith.


 


“Continuation/Conversion Notice” shall mean a
notice of continuation of or conversion to a LIBOR Loan and certificate duly
executed by an Authorized Officer, substantially in the form of that certain
exhibit marked “Exhibit C”, affixed hereto and by this reference
incorporated herein and made a part hereof.


 


“Convert, Conversion and Converted” shall
refer to a Borrowing at or continuation of a particular interest rate basis or
conversion of one interest rate basis to another pursuant to
Section 2.05(c).


 


“Credit Agreement” shall mean this Fourth
Amended and Restated Credit Agreement together with all Schedules and Exhibits
attached thereto, executed by and among Borrowers and Banks setting forth the
terms and conditions of the Credit Facility, as may be amended, modified,
extended, renewed or restated from time to time.


 


“Credit Facility” shall mean the agreement of
Lenders to fund a secured revolving line of credit during the Revolving Credit
Period subject to the terms and conditions set forth in this Credit Agreement
and the Revolving Credit Note, up to the Maximum Permitted Balance as may be
reduced from time to time in accordance with the terms of this Credit Agreement
and the Revolving Credit Note.


 


“Credit Facility Termination”
shall mean indefeasible payment in full of all sums owing under the Bank
Facilities and each of the other Loan Documents, the occurrence of the Stated
Expiry Date or other termination of all outstanding Letters of Credit, and the
irrevocable termination of: (i) the obligation of Lenders to advance Borrowings
under the Credit Facility, (ii) the obligation of L/C Issuer to issue
Letters of Credit under the L/C Facility, and (iii) the obligation of Swingline
Lender to make Swingline Advances under the Swingline Facility.


 


“DEP” shall mean the Commonwealth of
Pennsylvania, Department of Environmental Protection.


 


“Deeds of Trust” shall mean collective reference to the MPI Deed of Trust, the
SGLVI Deed of Trust and the SDI Mortgage, together with any other deeds of
trust or mortgages which may be executed by a member of the Borrower
Consolidation in favor of Agent Bank from time to time for the purpose of
securing Borrowers’ payment and performance under the Bank Facilities, in each
case as the same may be amended, modified, extended, renewed or restated from
time to time.


 


13





















 


“Default” shall mean the occurrence or non-occurrence,
as the case may be, of any event that with the giving of notice or passage of
time, or both, would become an Event of Default.


 


“Default Rate” shall have the meaning set
forth in Section 2.10(b) with respect to defaults occurring under the Revolving
Credit Note and shall mean the Prime Rate plus the then Applicable Margin plus
two percent (2%) per annum for all other purposes.


 


“Defaulting Lender” means any Lender which
fails or refuses to perform its obligations under this Credit Agreement within
the time period specified for performance of such obligation or, if no time
frame is specified, if such failure or refusal continues for a period of five
(5) Banking Business Days after notice from Agent Bank.


 


“Designated Deposit Account” shall mean a
deposit account to be maintained by Borrowers with Agent Bank, as from time to
time designated in writing by an Authorized Officer.


 


“Disposition” shall have the meaning ascribed
to such term in Section 6.11(c).


 


“Dispute” shall have the meaning set forth in
Section 10.14(a).


 


“Distributions” shall mean and collectively
refer to any and all cash dividends on stock, loans, management fees, payments,
advances or other distributions, fees or compensation of any kind or character
whatsoever, other than within the Borrower Consolidation, but shall not include
(i) consideration paid in the ordinary course of business for tangible and
intangible assets in an arms length exchange for fair market value,
(ii) trade payments made and other payments for liabilities incurred in
the ordinary course of business, or (iii) compensation to officers,
directors and employees of Borrowers in the ordinary course of business.  For the purpose of clarification, capital
contributions, advances and other Investments made by the Borrower
Consolidation in Unrestricted Subsidiaries shall constitute Distributions.


 


“Documents” shall have the meaning set forth
in Section 10.14(a).


 


“Dollars” and “$” means the lawful money of
the United States of America.


 


“EBITDA” shall mean with reference to any
Person, for any fiscal period under review, the sum of (i) Net Income for
that period, less (ii) any one-time non-Cash gain reflected in such Net Income,
plus (iii) any losses on sales of assets and other extraordinary losses and
one-time non-Cash charges, plus (iv) Interest Expense


 


14





















 


(expensed and capitalized) for that period, plus (v) the aggregate
amount of federal and state taxes on or measured by income for that period
(whether or not payable during that period), plus (vi) depreciation,
amortization and all other non-cash expenses for that period, plus (vii)
preopening expenses for that period, in each case determined in accordance with
GAAP and, in the case of items (iii), (iv), (v), (vi) and (vii), only to the
extent deducted in the determination of Net Income for that period.  For purposes of Financial Covenants and
pricing calculations EBITDA shall include only Cash distributions actually
funded by an Unrestricted Subsidiary that are received by the Borrower
Consolidation.


 


“ERISA” shall mean the Employee Retirement
Income Security Act of 1974, as amended from time to time.


 


“Eligible Assignee” means (a) another
Lender, (b) with respect to any Lender, any Affiliate of that Lender,
(c) any commercial bank having a combined capital and surplus of Fifty
Million Dollars ($50,000,000.00) or more that is (i) organized under the
Laws of the United States of America, any State thereof or the District of
Columbia or (ii) organized under the Laws of any other country which is a
member of the Organization for Economic Cooperation and Development, or a
political subdivision of such a country, provided that (A) such bank is
acting through a branch or agency located in the United States of America and
(B) is otherwise exempt from withholding of tax on interest and delivers Form
1001 or Form 4224 at the time of any assignment, and (d) any other
financial institution deemed acceptable as a Lender by Borrowers and Agent Bank
as evidenced by a duly executed Assignment and Assumption Agreement.


 


“Environmental Certificate”
shall mean the Certificate and Indemnification Regarding Hazardous Substances
to be executed by Borrowers on or before the Restatement Date and delivered to
Agent Bank as a further inducement to the Banks to establish the Bank
Facilities, as such certificate may be amended, modified, extended, renewed or
restated from time to time.


 


“Equipment Leases and Contracts” shall mean collective reference to the MPI
Equipment Leases and Contracts and SGLVI Equipment Leases and Contracts,
together with any other equipment leases and contracts which may be executed by
a member of the Borrower Consolidation in favor of Agent Bank from time to time
for the purpose of securing Borrowers’ payment and performance under the Bank
Facilities, in each case as the same may be amended, modified, extended,
renewed or restated from time to time.


 


“Equity Offering” shall mean the issuance and
sale of shares of common voting stock by MTRI to the public after the Restatement Date in exchange for Cash or
Cash Equivalents but shall not include, however, shares of stock utilized in a
stock-for-


 


15





















 


stock Acquisition, a stock-for-assets Acquisition, or stock issued upon
the exercise of employee stock options.


 


“Event of Default” shall mean any event of
default as defined in Section 7.01 hereof.


 


“Excess Capital Proceeds” shall have the
meaning ascribed to such term in Section 6.11(c) of this Credit Agreement.


 


“Existing Credit Agreement” shall mean that
certain Third Amended and Restated Credit Agreement dated as of March 28,
2003, as amended by First Amendment to Amended and Restated Credit Agreement
dated as of June 18, 2003, as further amended by Second Amendment to
Amended and Restated Credit Agreement dated as of November 12, 2003, as further
amended by Third Amendment to Third Amended and Restated Credit Agreement dated
as of February 25, 2004, as further amended by Fourth Amendment to Third
Amended and Restated Credit Agreement dated as of June 4, 2004, as further
amended by Fifth Amendment to Third Amended and Restated Credit Agreement dated
as of September 24, 2004, as further amended by Sixth Amendment to Amended
and Restated Credit Agreement dated as of September 29, 2004, and as further
amended by Seventh Amendment to Third Amended and Restated Credit Agreement
dated as of November 4, 2005, each executed by and among Borrowers and the
lenders therein named.


 


“Existing Credit Facility” shall mean the
revolving line of credit up to the maximum principal amount of Fifty Million
Dollars ($50,000,000.00) at any time outstanding, evidenced by the Existing
Credit Agreement.


 


“Existing Security Documents” shall have the
meaning ascribed to such term “Security Documentation” in the Existing Credit
Agreement.


 


“Existing Title Insurance Coverage” shall
mean a collective reference to the SGLVI Title Insurance Policy, the MPI Title
Insurance Policy and the SDI Title Insurance Policy.


 


“Expansion Capital Expenditures” shall mean
collective reference to Capital Expenditures (a) made or advanced for the
construction, development and completion of the PIDI Construction Project, (b)
made or advanced for the construction, development and completion of the SDI
Construction Project, and (c) made to or for the benefit of or for use in
connection with any Hotel/Casino Facility, any other Construction Project or
New Venture which (i) are not for the purpose of maintaining, repairing or
replacing existing assets of the Borrower Consolidation, (ii) consist of the
acquisition, construction or creation of additional assets and improvements
owned by the Borrower


 


16





















 


Consolidation, and (iii) are added as Collateral under the Credit
Facility and are encumbered by the Security Documentation, any amendments
required by Agent Bank for such purpose to be at the expense of the Borrower
Consolidation.


 


“FF&E” shall mean reference to the MPI
FF&E and SGLVI FF&E and any other furniture, fixtures and equipment,
including, without limitation, all gaming devices and associated equipment,
inventories and supplies used in connection with the Hotel/Casino Facilities or
any New Venture.


 


“FIRREA” shall mean the Financial
Institutions Reform, Recovery and Enforcement Act of 1989.


 


“Federal Funds Rate” means, as of any date of
determination, the rate set forth in the weekly statistical release designated
as H.15(519), or any successor publication, published by the Federal Reserve
Board (including any such successor, “H.15(519)”) for such date opposite the
caption “Federal Funds (Effective)”.  If
for any relevant date such rate is not yet published in H.15(519), the rate for
such date will be the rate set forth in the daily statistical release
designated as the Composite 3:30 p.m. Quotations for U.S. Government
Securities, or any successor publication, published by the Federal Reserve Bank
of New York (including any successor, the “Composite 3:30 p.m. Quotation”)
for such date under the caption “Federal Funds Effective Rate”.  If on any relevant date the appropriate rate
for such date is not yet published in either H.15(519) or the Composite
3:30 p.m. Quotations, the rate for such date will be the arithmetic mean
of the rates for the last transaction in overnight Federal funds arranged prior
to 9:00 a.m. (New York City time) on that date by each of three leading
brokers of Federal funds transactions in New York City selected by the Agent
Bank.  For purposes of the Credit
Agreement, any change in the Base Rate due to a change in the Federal Funds
Rate shall be effective as of the opening of business on the effective date of
such change.


 


“Fee Side Letter” shall mean the Confidential
Fee Letter dated December 23, 2005, executed by and between Borrowers and
Agent Bank concerning payment of the fees more particularly therein described.


 


“Financial Covenants” shall mean collective
reference to the financial covenants set forth in Article VI of this Credit
Agreement.


 


“Financing Statements” shall mean collective
reference to the MPI Financing Statements, SGLVI Financing Statements, SDI
Financing Statements and MTRI Financing Statements, together with any other
financing statements which may be executed by a member of the Borrower
Consolidation in favor of Agent Bank from time to time for the purpose of
securing Borrowers’ payment and performance under the


 


17





















 


Bank Facilities, in each case as the same may be amended, modified,
extended, renewed or restated from time to time.


 


“First Amendment to MPI Deed of Trust” shall
mean an amendment to the MPI Deed of Trust in a form and substance acceptable
to Agent Bank amending the MPI Deed of Trust for the purpose of confirming its
continued security for payment and performance under the Bank Facilities.


 


“First Amendment to SDI Mortgage” shall mean
an amendment to the SDI Mortgage in a form and substance acceptable to Agent
Bank amending the SDI Mortgage for the purpose of confirming its continued
security for payment and performance under the Bank Facilities.


 


“First Amendment to SGLVI Deed of Trust”
shall mean an amendment to the SGLVI Deed of Trust in a form and substance
acceptable to Agent Bank amending the SGLVI Deed of Trust for the purpose of
confirming its continued security for payment and performance under the Bank
Facilities.


 


“Fiscal Quarter” shall mean the consecutive
three (3) month periods during each Fiscal Year beginning on January 1,
April 1, July 1 and October 1 and ending on March 31,
June 30, September 30 and December 31, respectively.


 


“Fiscal Year” shall mean the fiscal year
period beginning January 1 of each calendar year and ending on the
following December 31.


 


“Fiscal Year End” shall mean December 31
of each calendar year.


 


“Funded Debt” shall mean with reference to
the Borrower Consolidation for any period: (i) the daily average of the
Aggregate Outstandings for such period, plus (ii) the total as of the last
day of such period of both the long-term and current portions (without
duplication) of all other Indebtedness (including Contingent Liabilities) and
Capitalized Lease Liabilities.


 


“Funded Outstandings” shall mean the unpaid
principal amount outstanding on the Credit Facility as of any given date of
determination for Borrowings made thereunder.


 


“Funding Date” shall mean each date upon
which Lenders fund Borrowings requested by Borrowers in accordance with the
provisions of Section 2.03 or at the request of Agent Bank pursuant to
Section 2.08 or 2.14.


 


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“GAAP” means generally accepted accounting
principles set forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board, or
in such other statements by such other entity as may be in general use by
significant segments of the accounting profession, which are applicable to the
circumstances as of the date of determination.


 


“Gaming Authority(ies)” shall mean any
agency, authority, board, bureau, commission, department, office or
instrumentality of any nature whatsoever of the United States federal or
foreign government, any state, province or any city or other political
subdivision or otherwise and whether now or hereafter in existence or any
officer or official thereof, including, without limitation, the PGCB, Nevada
Gaming Authorities and West Virginia Gaming Authorities, with authority to
regulate any gaming operation owned, managed or operated by the Borrower
Consolidation.


 


“Gaming Devices” shall mean slot machines and
other devices which constitute gaming devices and related equipment.


 


“Gaming Laws” means all statutes, rules,
regulations, ordinances, codes and administrative or judicial precedents
pursuant to which any Gaming Authority possesses regulatory, licensing or
permit authority over gambling, gaming or casino activities conducted by the
Borrower Consolidation within its jurisdiction, including the Nevada Gaming
Control Act and the West Virginia Racing Act and Lottery Act.


 


“Gaming Permits” shall mean collective
reference to every license, permit or other authorization required to own,
operate and otherwise conduct unrestricted gaming operations at the
Hotel/Casino Facilities or any New Venture.


 


“Government Securities” means readily
marketable (a) direct full faith and credit obligations of the United States of
America or obligations guaranteed by the full faith and credit of the United
States of America and (b) obligations of an agency or instrumentality of, or
corporation owned, controlled or sponsored by, the United States of America
that are generally considered in the securities industry to be implicit
obligations of the United States of America.


 


“Governmental Authority” or “Governmental
Authorities” shall mean any federal, state, regional, county or municipal
governmental agency, board, commission, officer or official whose consent or
approval is required or whose regulations must be followed as a prerequisite to
(i) the continued operation and occupancy of the Collateral Properties, the
Hotel/Casino Facilities or any New Venture, or (ii) the performance of any act
or obligation or the observance of any agreement, provision or condition of
whatever nature herein contained.


 


19





















 


“Green Shingle Loan” shall mean the loan made
by MTRI to Tecnica in the amount of Two Million Forty-Five Thousand Six Hundred
Fifty-Three Dollars and Sixty-Four Cents ($2,045,653.64), plus closing costs,
to finance the purchase of the Green Shingle Property by Tecnica.


 


“Green Shingle Loan Agreement” shall mean
that certain Loan Agreement, dated March 22, 2002, by and between Tecnica,
as borrower, and MTRI, as Lender, setting forth the terms, conditions and
understandings with respect to the Green Shingle Loan, including, without
limitation, provisions that MTRI has the option to purchase the Green Shingle
Property in exchange for the Indebtedness evidenced by the Green Shingle Loan.


 


“Green Shingle Loan Documents” shall have the
meaning set forth in Section 3.21(c).


 


“Green Shingle Mortgage” shall mean that
certain Mortgage, which was executed by Tecnica, as mortgagor, for the benefit
of MTRI, as mortgagee, and which was recorded in the Official Records of Erie
County, Pennsylvania on March 29, 2002 in Mortgage Book Volume 0865
at Page 2046, all for the purpose of encumbering the Green Shingle
Property, as a first priority mortgage lien, securing repayment of the Green
Shingle Loan.


 


“Green Shingle Note” shall mean that certain
Promissory Note, which was executed by Tecnica under date of March 22,
2002, and which is payable to the order of MTRI in the principal amount of Two
Million Forty-Five Thousand Six Hundred Fifty-Three Dollars and Sixty-Four
Cents ($2,045,653.64), as evidence of Tecnica’s obligation to repay the Green
Shingle Loan together with accrued interest thereon.


 


“Green Shingle Perfection Items” shall mean
collective reference to: (i) an endorsement of the Green Shingle Note
executed by MTRI in favor of Agent Bank; (ii) a collateral assignment of
the Green Shingle Mortgage executed by MTRI in favor of Agent Bank; (iii) the
original stock certificates which are subject to the Tecnica Stock Pledge; and
(iv) such title insurance policies and/or endorsements regarding the Lien
of the Green Shingle Mortgage (or proforma commitment for the issuance
thereof), as may be requested by Agent Bank; all of which shall be in a form
and substance acceptable to Agent Bank.


 


“Green Shingle Property” shall mean a parcel
containing approximately eighty-three (83) acres encompassing the Green Shingle
Restaurant/Motel at 6468 Sterrettania Road and the Poplar White Thruway Service
at 6450 Sterrettania Road in McKean Township, Erie, Pennsylvania.


 


20





















 


“Green Shingle Security Documents” shall mean
collective reference to the Green Shingle Mortgage, Tecnica Stock Pledge and
all other documents and instruments securing repayment of the Green Shingle
Loan.


 


“HHLV” shall mean HHLV
Management Company, LLC, a Nevada limited liability company.


 


“HHLV Purchase Agreement” shall
mean the Purchase and Sale Agreement dated as of February 6, 2004, as
amended by First Amendment to Purchase and Sale Agreement dated as of
February 13, 2004 and Second Amendment to Purchase and Sale Agreement
dated as of February 20, 2004, each executed by and among HHLV, as seller,
SGFI, as buyer, and MTRI, as guarantor.


 


“Hazardous
Materials Laws” shall have the meaning set forth in Section 5.20.


 


“Horseshoe Property” shall have
the meaning ascribed to such term in the HHLV Purchase Agreement.


 


“Hotel/Casino Facility” shall
mean individual reference and “Hotel/Casino Facilities” shall mean collective
reference to the MPI Hotel/Casino Facilities, the SDI Facility and the SGLVI
Hotel/Casino Facility, in each case including any future expansions thereof,
related thereto or used in connection therewith, and all appurtenances thereto.


 


“IP Real Property” shall mean
the portion of the IP Site that is owned by PIDI as of the Restatement Date
which portion is more particularly described on Exhibit S affixed hereto.


 


“IP Sale Agreement” shall mean
the agreement under the terms of which International Paper sold and PIDI
purchased the IP Site.


 


“IP Site” shall mean
approximately two hundred fifteen (215) acres of land more particularly
described on Exhibit A to the IP Sale Agreement, a portion of which has been
conveyed to a third party subsequent to PIDI’s acquisition thereof.


 


“Indebtedness” of any Person
includes all obliga­tions, contingent or otherwise, which in accordance with
GAAP should be classified upon such Person’s balance sheet as liabilities, but
in any event including liabilities for borrowed money or other liabilities
secured by any lien existing on property owned or acquired by such Person,
Affiliate or a Subsidiary thereof (whether or not the liability secured thereby
shall have been assumed), obligations which have been or under GAAP should be
capitalized


 


21





















 


for financial reporting purposes, and all
guaranties, endorse­ments, and other contingent obligations with respect to
Indebtedness of others, including, but not limited to, any obligations to
acquire any of such Indebtedness, to purchase, sell, or furnish property or
services primarily for the purpose of enabling such other Person to make
payment of any of such Indebtedness, or otherwise to assure the owner of any of
such Indebtedness against loss with respect thereto.


 


“Indenture Trustee” shall mean
Wells Fargo Bank Minnesota, National Association.


 


“Insider Cash Loans” shall mean
collective reference to all loans advanced by any member of the Borrower
Consolidation in Cash to any officer or director of any member of the Borrower
Consolidation, for the purpose of funding taxes payable by such officers and
directors from the purchase and sale of shares of MTRI acquired through stock
options or other employee incentive plans established by the Borrower
Consolidation.


 


“Insider Non-Cash Loans” shall
mean collective reference to loans made by book entry (and not evidenced by the
advance of Cash) to any officer or director of any member of the Borrower
Consolidation for the purpose of exercising stock options for the acquisition
of shares of the stock of MTRI.


 


“Intangibles” shall mean the
aggregate goodwill, trademarks, patents, organizational expense and other
similar intangible items of the Borrower Consolidation determined on a
consolidated basis in accordance with GAAP.


 


“Interest Expense” shall mean
with respect to any Person, as of the last day of any fiscal period under
review, the sum of (i) all interest, fees, charges and related expenses
paid or payable (without duplication but including capitalized interest) for
that fiscal period by such Person to a lender in connection with borrowed money
(including any obligations for fees, charges and related expenses payable to
the issuer of any letter of credit) or the deferred purchase price of assets
that are considered “interest expense” under GAAP, plus (ii) the portion
of the up front costs and expenses for Interest Rate Hedges (to the extent not
included in (i)) fairly allocated to such interest rate hedges as expenses
for such period, plus (iii) the portions of Capital Lease Liabilities paid
or payable with respect to such period that should be treated as interest in
accordance with GAAP.


 


“Interest Period(s)” shall have
the meaning set forth in Section 2.05(d) of the Credit Agreement.


 


“Interest Rate Hedges” shall
mean, with respect to any Person, all liabilities of such Person under interest
rate swap agreements, interest rate cap agreements, basis


 


22





















 


swap, forward rate agreement and interest
collar or floor agreements and all other agreements or arrangements designed to
protect such Person against fluctuations in interest rates or currency exchange
rates.


 


“Interest Rate Option” shall
have the meaning ascribed to such term in Section 2.05(b) of the Credit
Agreement.


 


“Investment” shall mean, when
used in connection with any Person: (i) any investment by or of that Person, whether by
means of purchase or other acquisition of stock or other securities of any
other Person or by means of a loan, advance creating a debt, capital
contribution, guaranty or other debt or equity participation or interest in any
other Person, including any partnership and joint venture interests of
such Person, (ii) any Acquisition, and (iii) any other item that is
or would be classified as an investment on a balance sheet of such Person
prepared in accordance with GAAP, as in effect as of the Closing Date.  The
amount of any Investment shall be the amount actually invested without
adjustment for subsequent increases or decreases in the value of such
Investment.


 


“JRI” shall mean Jackson Racing, Inc., a
Michigan corporation, a wholly owned subsidiary of MTRI.


 


“JTAL” shall mean Jackson Trotting
Association, LLC, the operator of a harness racetrack in Jackson County,
Michigan, known as the Jackson Harness Raceway.


 


“L/C Agreement(s)” shall mean collective
reference to the Application and Agreement for Standby Letter of Credit and
Application and Agreement for Commercial Letter of Credit and addendum(s)
thereto executed by an Authorized Officer of Borrowers in favor of L/C Issuer
in L/C Issuer’s standard form, setting forth the terms and conditions upon
which L/C Issuer shall issue a Letter(s) of Credit, as the same may be amended
or modified from time to time.


 


“L/C Exposure” shall mean the aggregate
amount which L/C Issuer may be required to fund or is contingently liable for
disbursement under all issued and outstanding Letter(s) of Credit, which amount
shall be determined by subtracting from the aggregate of the Stated Amount of
each such Letter(s) of Credit, the principal amount of all L/C Reimbursement
Obligations which have accrued and have been fully satisfied as of each date of
determination.


 


“L/C Facility” shall mean the agreement of
L/C Issuer to issue Letters of Credit subject to the terms and conditions and
up to the maximum amounts and duration as set forth in Section 2.14 of the
Credit Agreement.


 


23





















 


“L/C Fee” shall have the
meaning set forth in Section 2.09(c) of the Credit Agreement.


 


“L/C Issuer” shall mean WFB in
its capacity as the issuer of Letters of Credit under the L/C Facility
following the Closing Date.


 


“L/C Reimbursement
Obligation(s)” shall mean the obligation of Borrowers to reimburse L/C Issuer
for amounts funded or disbursed under a Letter(s) of Credit, together with
accrued interest thereon.


 


“LIBO Rate” means, relative to
any LIBOR Loan Interest Period for any LIBOR Loan included in any Borrowing,
the per annum rate (reserve adjusted as hereinbelow provided) of interest
quoted by Agent Bank, rounded upwards, if necessary, to the nearest
one-sixteenth of one percent (0.0625%) at which Dollar deposits in immediately
available funds are offered by Agent Bank to leading banks in the London
interbank market at approximately 11:00 a.m. London, England time two (2)
Banking Business Days prior to the beginning of such Interest Period, for
delivery on the first day of such Interest Period for a period approximately
equal to such Interest Period and in an amount equal or comparable to the LIBOR
Loan to which such Interest Period relates. 
The foregoing rate of interest shall be reserve adjusted by dividing the
applicable LIBO Rate by a one (1.00) minus the LIBOR Reserve Percentage, with
such quotient to be rounded upward to the nearest whole multiple of
one-hundredth of one percent (0.01%). 
All references in this Credit Agreement or other Loan Documents to a
LIBO Rate include the aforesaid reserve adjustment.


 


“LIBOR Loan” shall mean each
portion of the total unpaid principal under the Credit Facility which bears
interest at a rate determined by reference to the LIBO Rate plus the Applicable
Margin.


 


“LIBOR Reserve Percentage”
means, relative to any Interest Period for LIBOR Loans made by any Lender, the
reserve percentage (expressed as a decimal) equal to the actual aggregate
reserve requirements (including all basic, emergency, supplemental, marginal
and other reserves and taking into account any transactional adjustments or
other scheduled changes in reserve requirements) announced within Agent Bank as
the reserve percentage applicable to Agent Bank as specified under regulations
issued from time to time by the Federal Reserve Board.  The LIBOR Reserve Percentage shall be based
on Regulation D of the Federal Reserve Board or other regulations from time to
time in effect concerning reserves for “Eurocurrency Liabilities” from related
institutions as though Agent Bank were in a net borrowing position.


 


24





















 


“Laws” means, collectively, all
international, foreign, federal, state and local statutes, maritime laws,
treaties, rules, regulations, ordinances, codes and administrative or judicial
precedents.


 


“Lender Reply Period” shall
have the meaning set forth in Section 9.10(d).


 


“Lenders’ Consultant” shall
mean the Affiliate or other representative of Agent Bank to be engaged by Agent
Bank in connection with the Construction Project Reviews.


 


“Lenders” shall have the
meaning set forth in the Preamble to this Credit Agreement.  At all times that there are no Lenders other
than WFB, the terms “Lender” and “Lenders” means WFB in its individual
capacity.  With respect to matters
requiring the consent to or approval of all Lenders at any given time, all then
existing Defaulting Lenders will be disregarded and excluded, and, for voting
purposes only, “all Lenders” shall be deemed to mean “all Lenders other than
Defaulting Lenders”.


 


“Letter(s) of Credit” shall mean collective
reference to (i) the Irrevocable Letter of Credit No. NZS497218 dated
September 29, 2003 in favor of the State of West Virginia Lottery in the amount
of Six Hundred Forty-Five Thousand ($645,000.00), (ii) the PIDI License
Letter of Credit, and (iii) each Standby Letter(s) of Credit and/or
Commercial Letters of Credit, as the case may be, issued by L/C Issuer on
behalf of Borrowers, in each case as the same may be extended, renewed or
reissued from time to time.


 


“Leverage Ratio” as of the end of any Fiscal
Quarter shall mean the ratio resulting by dividing (a) Funded Debt as of the
end of the Fiscal Quarter under review by (b) the sum of EBITDA for the Fiscal
Quarter under review plus EBITDA for each of the most recently ended three (3)
preceding Fiscal Quarters.


 


“Liabilities” shall mean the total
liabilities of the Borrower Consolidation in accordance with GAAP.


 


“Liabilities and Costs” means all claims,
judgments, liabilities, obligations, responsibilities, losses, damages
(including lost profits), punitive or treble damages, costs, disbursements and
expenses (including, without limitation, reasonable attorneys’, experts’ and
consulting fees and costs of investigation and feasibility studies), fines,
penalties and monetary sanctions, interest, direct or indirect, known or
unknown, absolute or contingent, past, present or future.


 


“Lien” means any lien, mortgage, pledge,
assignment, security interest, charge or encumbrance of any kind (including any
conditional sale or other title


 


25





















 


retention agreement, any lease in the nature thereof, and any agreement
to give any security interest) and any option, trust or other preferential
arrangement having the practical effect of any of the foregoing.


 


“Loan Documents” shall mean collective
reference to the Credit Agreement, the Revolving Credit Note, the Security
Documentation, Cash Collateral Pledge Agreement, the Environmental Certificate
and all other documents and instruments which may hereafter be executed and delivered
by or on behalf of Borrowers or any other Person in connection with the Credit
facility for the benefit of Banks or Agent Bank on behalf of the Lenders, as
the same may be amended, modified, supplemented, replaced, renewed or restated
from time to time.


 


“MPI” shall have the meaning ascribed to such
term in the Preamble of this Credit Agreement.


 


“MPI Assignment of
Entitlements, Contracts, Rents and Revenues” shall mean the assignment executed
by MPI as of the Closing
Date, whereby MPI presently assigned to Agent Bank in consideration of the Bank
Facilities (reserving a revocable license to retain use and enjoy):
(a) all of its right, title and interest under all MPI Spaceleases and MPI
Equipment Leases and Contracts relating to the MPI Hotel/Casino Facilities,
(b) all of its right, title and interest in and to all permits, licenses
and contracts relating to the MPI Hotel/Casino Facilities, except Gaming
Permits and except those permits, licenses and contracts which are
unassignable, and (c) all rents, issues, profits, revenues and income from the
MPI Real Property, from the operation of the MPI Hotel/Casino Facilities and
from any other business activity conducted on the MPI Real Property, as such
assignment may be amended, modified, extended, renewed, restated, substituted
or replaced from time to time.


 


“MPI Closing Instructions” shall mean the
closing letter given to the MPI Title Insurance Company, by Agent Bank, as of
the Closing Date setting forth the requirements for issuance of the MPI Title Insurance
Policy and other conditions for recording the MPI Deed of Trust and the other
MPI Security Documents; all to the reasonable satisfaction of Agent Bank,
Lenders and the Borrowers.


 


“MPI Collateral” shall mean collective
reference to: (i) all of the MPI Real Property and MPI FF&E and the
contract rights, leases, intangibles and other interests of MPI which are
subject to the liens and security interests of the MPI Security Documents;
(ii) all rights of MPI presently assigned pursuant to the terms of the MPI
Security Documents; and (iii) any and all other property and/or intangible
rights, interest or benefits inuring to or in favor of MPI, which are in any
manner assigned, pledged, encumbered or otherwise hypothecated in favor of
Agent Bank on behalf of Lenders to secure payment of the Bank Facilities.


 


26





















 


“MPI Deed of Trust” shall mean
the Deed of Trust, Fixture Filing and Security Agreement with Assignment of
Rents executed by MPI as of the Closing Date in favor of Agent Bank, encumbering the MPI Real Property, MPI
FF&E, MPI Hotel/Casino Facilities and other Collateral described therein,
all for the purpose of securing the Bank Facilities and Borrowers’ payment and
performance under each of the Loan Documents (other than the Environmental
Certificate) as such deed of trust may be amended, modified, extended, renewed,
restated, substituted or replaced from time to time.


 


“MPI Equipment Leases and Contracts” shall
mean the executed leases and purchase contracts pertaining to the MPI FF&E
wherein MPI is the lessee or vendee, as the case may be, as set forth on that
certain schedule marked “Schedule 4.16(A)”, affixed to the Existing Credit
Agreement and by this reference incorporated herein and made a part hereof.


 


“MPI FF&E” shall mean the furniture,
fixtures and equipment and all gaming equipment and devices which have been
installed or are to be installed and used, owned or leased by MPI in connection
with the operation of the MPI Hotel/Casino Facilities.


 


“MPI Financing Statements”
shall mean the Uniform Commercial Code financing statements to be filed in the
Office of the Secretary of State of the State of West Virginia and in the
Office of the County Recorder of Hancock County, West Virginia, in order to perfect
the security interest granted to Agent Bank under the MPI Deed of Trust and
under other Security Documentation, all in accordance with requirements of the
West Virginia Uniform Commercial Code, as such financing statements may be
amended, modified, extended, renewed, restated, substituted or replaced from
time to time.


 


“MPI Hotel/Casino Facilities” shall mean the
racetrack, hotel and casino business and related activities conducted on the
MPI Real Property under the common law trade names of the “Mountaineer
Racetrack & Gaming Resort”, “Mountaineer Lodge” and “Woodview Golf Course”.


 


“MPI Permitted Encumbrances” shall mean, at
any particular time, (i) liens for taxes, assessments or governmental charges
not then due and payable or not then delinquent, (ii) statutory liens for labor
and/or materials and liens for taxes, assessments or governmental charges the
validity of which, in either instance, are being contested in good faith by
Borrowers by appropriate proceedings, and as provided in Sections 5.03 and
5.10 hereof, respectively, provided that, Borrowers shall have maintained
adequate reserves in accordance with GAAP for payment of same, (iii) liens
incurred or deposits made in the ordinary course of business in connection with
workers’ compensation, unemployment insurance and other types of social
security, or to secure the


 


27





















 


performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, government contracts, trade contracts, performance and
return-of-money bonds and other similar obligations (exclusive of obligations
for the payment of borrowed money); (iv) leases or subleases granted to others
(including, without limitation, any Subsidiary) not interfering in any material
respect with the ordinary conduct of the business of the MPI Hotel/Casino
Facilities, including, without limitation, the MPI Trailer Park Leases,
(v) liens created or contemplated by the MPI Security Documents, (vi) the
liens, encumbrances and restrictions on the MPI Real Property and MPI FF&E
which are shown as exceptions on Schedule B of the MPI Title Insurance
Policy, including, without limitation, the Woodview Citizens Bank Documents,
(vii) liens consented to in writing by Agent Bank upon the approval of Requisite
Lenders, (viii) liens of legally valid capital leases and purchase money
security interests for MPI FF&E to the extent permitted by
Section 6.09(c), (ix) each and every easement, restriction, license
or right-of-way that (A) is hereafter granted to any Governmental Authority or
public utility providing services to the MPI Real Property and (B) does not
interfere in any material respect with the MPI Hotel/Casino facilities; and (x)
judgment liens, writs, warrants, levies, distraints, attachments and other
similar process which do not constitute an Event of Default.


 


“MPI Real Property” shall mean: (i) the real property owned by MPI which is more
particularly described on that certain exhibit marked “Exhibit K”, affixed
hereto and by this reference incorporated herein and made a part hereof.


 


“MPI Security Documents” shall mean collective reference to the MPI
Deed of Trust, MPI Assignment of Entitlements, Contracts, Rents and Revenues,
the MPI Financing Statements and all other documents, instruments or agreements
which are executed or delivered by or on behalf of MPI and accepted by Agent
Bank, on behalf of Lenders, as security for payment of the Bank Facilities.


 


“MPI Spaceleases” shall mean the executed leases and concession agreements
pertaining to the MPI Hotel/Casino Facilities, or any portion thereof, wherein
MPI is the lessor, as set forth on that certain schedule marked “Schedule 4.15(A)”,
affixed to the Existing Credit Agreement and by this reference incorporated
herein and made a part hereof.


 


“MPI Title Insurance Company” shall mean Commonwealth Land Title
Insurance Company, with offices located at 300 Bilmar Drive, Suite 150 in
Pittsburgh, Pennsylvania, together with such reinsurers with direct access as
are requested by Agent Bank or other title insurance company or companies as
may be reasonably acceptable to Agent Bank.


 


“MPI Title Insurance Policy” shall mean the
ALTA Extended Coverage Lenders Policy of Title Insurance issued by the MPI
Title Insurance Company, as of the


 


28





















 


Closing Date, in the aggregate amount of Fifty Million Dollars
($50,000,000.00), in favor of Agent Bank, insuring the MPI Deed of Trust as a
first priority Lien encumbering the MPI Real Property; subject only to the exceptions
shown on Schedule B, Part One thereof, together with such endorsements
thereto as are required by Agent Bank (including, without limitation, a tie-in
endorsement with respect to the SGLVI Title Insurance Policy), all in
accordance with the MPI Closing Instructions.


 


“MTR Harness” shall mean MTR-Harness, Inc., a
Minnesota corporation.


 


“MTRI” shall
have the meaning ascribed to such term in the Preamble of this Credit
Agreement.


 


“MTRI Collateral” shall mean collective
reference to: (i) the Green Shingle Loan Documents and the contract
rights, leases, intangibles and other interests of MTRI which are subject to
the liens and security interests of the MTRI Security Documents; (ii) all
rights of MTRI presently assigned pursuant to the terms of the MTRI Security
Documents; and (iii) any and all other property and/or intangible rights,
interest or benefits inuring to or in favor of MTRI, which are in any manner
assigned, pledged, encumbered or otherwise hypothecated in favor of Agent Bank
on behalf of Lenders to secure payment of the Bank Facilities.


 


“MTRI Financing Statements”
shall mean the Uniform Commercial Code financing statement to be filed in the
Office of the Secretary of State of the State of Delaware in order to perfect
the security interest granted to Agent Bank under the MTRI Security Agreement
and under other Security Documentation, all in accordance with requirements of
the Delaware Uniform Commercial Code, as such financing statement may be
amended, modified, extended, renewed, restated, substituted or replaced from
time to time.


 


“MTRI Permitted Encumbrances” shall mean, at any particular time, (i)
liens for taxes, assessments or governmental charges not then due and payable
or not then delinquent, (ii) statutory liens for labor and/or materials and
liens for taxes, assessments or governmental charges the validity of which, in
either instance, are being contested in good faith by Borrowers by appropriate
proceedings, and as provided in Sections 5.03 and 5.10 hereof,
respectively, provided that, Borrowers shall have maintained adequate reserves
in accordance with GAAP for payment of same, (iii) liens incurred or
deposits made in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other types of social security, or to
secure the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, trade contracts, performance and
return-of-money bonds and other similar obligations (exclusive of obligations
for the payment of borrowed money); (iv) liens created or contemplated by
the MTRI Security Documents; (v) liens


 


29





















 


consented to in writing by Agent Bank upon the approval of Requisite
Lenders, (vi) liens of legally valid capital leases and purchase money security
interests for FF&E to the extent permitted by Section 6.09(c); and
(vii) judgment liens, writs, warrants, levies, distraints, attachments and
other similar process which do not constitute an Event of Default.


 


“MTRI Security Agreement” shall mean the
Security Agreement executed by MTRI, as debtor, as of the Closing Date,
pursuant to which, among other things, MTRI grants a blanket security interest
to Agent Bank in and to all personal property of MTRI (including, without
limitation, all right, title and interest of MTRI in, and to, the Green Shingle
Loan Documents), all as security for payment and performance under the Bank
Facilities, as such Security Agreement may be renewed,
extended, amended, restated, replaced, substituted or otherwise modified from
time to time.


 


“MTRI Security Documents” shall mean
collective reference to the Stock Pledges, the MTRI Security Agreement, the
Green Shingle Perfection Items, the MTRI Financing Statements and all other documents,
instruments or agreements which are executed or delivered by or on behalf of
MTRI, and accepted by Agent Bank, on behalf of the Lenders, as security for
payment of the Bank Facilities.


 


“Maintenance Capital Expenditures” shall mean
collective reference to Capital Expenditures made to or for the benefit of or
for use in connection with the Hotel/Casino Facilities or any New Venture which
are for the purpose of maintaining, repairing and/or replacing existing assets
of the Borrower Consolidation.


 


“Mandatory Commitment Reduction(s)” shall
mean a permanent reduction of the Aggregate Commitment which shall be made from
time to time as may be required under Sections 5.12, 5.26, 6.11(c) and/or
8.02.


 


“Margin Stock” shall have the meaning
provided in Regulation U of the Board of Governors of the Federal Reserve
System.


 


“Material Adverse Change” shall mean: (i) any
set of circumstances of events which, other than with respect to the
Representations and Warranties set forth in Article IV of the Credit Agreement
which shall be construed to be applicable to circumstances and events existing
both as of the Restatement Date (or such earlier date as may be referenced in
each particular provision) and subsequent to the Restatement Date, are not in
existence as of the Restatement Date, which are material and adverse to
(a) the Collateral or (b) the condition (financial or otherwise) or
business operations of the Borrower Consolidation taken as a whole, or (c) the
ability of any of the Lenders to enforce any of their material rights or
remedies under any of the Loan Documents, or (ii) any events or changes,
which, other than with respect to the


 


30





















 


Representations and Warranties set forth in Article IV of the Credit
Agreement which shall be construed to be applicable to events and changes
existing both as of the Restatement Date (or such earlier date as may be
referenced in each particular provision) and subsequent to the Restatement
Date, are not in existence as of the Restatement Date and which have or result
in a material adverse effect upon (a) the value of the Hotel/Casino
Facilities taken as a whole or the priority of the security interests granted
to Agent Bank, (b) the validity of any of the Loan Documents, or (c) the
use, occupancy or operation of the Hotel/Casino Facilities taken as a whole.


 


“Maturity Date” shall mean April 1,
2008.


 


“Maximum Availability” shall mean the Maximum
Permitted Balance less the Aggregate Outstandings.


 


“Maximum Maintenance Cap Ex Limit” shall have
the meaning ascribed to such term in Section 6.06(a) of the Credit Agreement.


 


“Maximum Permitted Balance” shall mean the
maximum amount of principal which may be outstanding on the Credit Facility
from time to time, which shall be the amount of the Aggregate Commitment as may
be reduced from time to time by: (i) Voluntary Permanent Reductions and
(ii) Mandatory Commitment Reductions.


 


“Minimum Maintenance Cap Ex Requirement”
shall have the meaning ascribed to such term in Section 6.06(a) of the
Credit Agreement.


 


“Net Income” shall mean with respect to the
Borrower Consolidation for any fiscal period, the net income of the Borrower
Consolidation (determined without regard to any Insider Non-Cash Loans, until
such Insider Non-Cash Loans have been repaid) during such fiscal period
determined in accordance with GAAP.


 


“Net Proceeds” shall mean the aggregate cash
proceeds received by the Borrower Consolidation in respect of (a) Capital
Proceeds net of the direct costs relating to such sale, transfer, conveyance or
disposition of FF&E or other items of Collateral, amounts required to be
applied to the repayment of Indebtedness secured by a Lien on the asset or
assets that were the subject of such sale, transfer, conveyance or disposition
of FF&E or other items of Collateral and all Indebtedness assumed by the
purchaser in connection with such sale, transfer, conveyance or disposition of
FF&E or other items of Collateral and all taxes paid or payable as a result
of such sale, transfer, conveyance or disposition, and (b) any Equity Offering
issued by MTRI, in each case less all costs, fees and expenses (including
without limitation underwriting, placement, financial advisory and similar fees
and expenses) incurred in connection with the issuance of such Equity Offering,
but shall not include the proceeds of Insider Cash


 


31





















 


Loan and Insider Non-Cash Loans, until such Insider Non-Cash Loans have
been repaid.


 


“Nevada Gaming Authorities” shall mean,
without limitation, the Nevada Gaming Commission and the State Gaming Control
Board and any other applicable governmental or administrative state or local
agency involved in the regulation of gaming and gaming activities conducted by
the Borrower Consolidation in the State of Nevada.


 


“New Acquisition Certifications” shall mean
the requirements and certifications to be made by Borrowers concurrently with
the Acquisition of any real property to be added as Collateral under the Bank
Facilities, consisting of each of the following (a) evidence that such
additional real property and improvements located thereon, if any, are
protected by insurance coverages as required for Collateral under
Section 5.09, (b) certification that such additional real property is
not within an area designated as a one hundred (100) year flood zone (or, in
the alternative, that Borrowers have obtained sufficient flood insurance
coverage to satisfy all applicable legal requirements relating to encumbrance
of property situated within such a flood zone by Agent Bank), and (c) a
Phase I Environmental Site Assessment prepared in conformance with the
scope and limitations of ASTM Standard Designation E 1527-93, approved by
Agent Bank, with a remediation plan, if required, that has been approved by the
applicable Governmental Authorities and Agent Bank, or in the absence of such
requirement as approved by Agent Bank.


 


“New Venture” means collective reference to:
(a) the SDI Facility upon consummation of the Merger, (b) the
acquisition of land for the PIDI Facility, and (c) each other casino,
hotel, casino/hotel, resort, casino/resort, riverboat casino, dock casino, dog
or horse racing business, entertainment center or similar facility (or any site
or proposed site for any of the foregoing or entity that provides management or
other services or goods to any of the foregoing) owned in whole by any member
of the Borrower Consolidation (including each Restricted Subsidiary created in
accordance with Section 5.27).


 


“New Venture Investment” shall mean any
Investment made by the Borrower Consolidation in or to any New Venture, but
shall not include the Expansion Capital Expenditures to the extent permitted
under Section 6.06(b).


 


“New Venture Investments” shall mean
collective reference to each and every New Venture Investment.


 


“Noncompliant Additional Property” shall mean
a collective reference to the Horseshoe Real Property, the SDI Real Property
and the IP Real Property.


 


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“Non-Consenting Lender” shall have the meaning ascribed to such term in
Section 10.01.


 


“Non Pro Rata Borrowing” means a Borrowing with respect to which fewer
than all Lenders have funded their respective Pro Rata Shares of such Borrowing
and the failure of the non-funding Lender or Lenders to fund its or their
respective Pro Rata Shares of such Borrowing constitutes a breach of this
Credit Agreement.


 


“North Metro” shall mean North Metro Harness Initiative, LLC, a
Minnesota limited liability company.


 


“Notes” shall mean collective reference to the Revolving Credit Note
and the Swingline Note.


 


“Notice of Borrowing” shall have the meaning set forth in Section 2.03.


 


“Notice of Swingline Advance” shall have the meaning set forth in
Section 2.08(b).


 


“Obligations” means, from time to time, all Indebtedness of Borrowers
owing to Agent Bank, any Lender or any Person entitled to indemnification
pursuant to Section 5.14, or any of their respective successors,
transferees or assigns, of every type and description, whether or not evidenced
by any note, guaranty or other instrument, arising under or in connection with
this Credit Agreement, any other Loan Document or any Interest Rate Hedge,
whether or not for the payment of money, whether direct or indirect (including
those acquired by assignment), absolute or contingent, due or to become due,
now existing or hereafter arising and however acquired.  The term includes, without limitation, all
interest, charges, expenses, fees, reasonable attorneys’ fees and disbursements,
reasonable fees and disbursements of expert witnesses and other consultants,
and any other sum now or hereinafter chargeable to Borrowers under or in
connection with Credit Agreement or any other Loan Document.  Notwithstanding the foregoing definition of “Obligations”,
Borrowers’ obligations under any environmental indemnity agreement constituting
a Loan Document, or any environmental representation, warranty, covenant,
indemnity or similar provision in this Credit Agreement or any other Loan
Document, shall be secured by the Collateral only to the extent, if any,
specifically provided in the Security Documentation.


 


“PGCB” shall mean the Pennsylvania Gaming Control Board.


 


33





















 


“PGCB Regulations” shall mean the rules and regulations of the
Pennsylvania Gaming Control Board.


 


“PIDI” shall have the meaning ascribed to such term in the Preamble of
this Credit Agreement.


 


“PIDI Construction Project” shall mean the project, as may be proposed
by Borrowers, for the construction and development of the PIDI Facility in
accordance with plans and specifications and budget analysis to be provided to
Agent Bank and Lenders’ Consultant in accordance with Section 5.29.


 


“PIDI FF&E” shall mean the furniture, fixtures and equipment and
all gaming equipment and devices which are to be installed and used, owned or
leased by PIDI in connection with the operation of the PIDI Facility.


 


“PIDI Facility” shall mean the real property, improvements and
appurtenances proposed to be constructed by PIDI in Erie, Pennsylvania,
including, without limitation, a new thoroughbred horse race track to be known
as “Presque Isle Downs”, and further including, without limitation, if PIDI is
granted the appropriate license, casino and gaming facilities and related
appurtenances.


 


“PIDI License Letter of Credit” shall have the meaning ascribed to such
term in Recital Paragraph C.


 


“PIDI Real Property” shall mean the real property
which is particularly described on Exhibit N, affixed hereto.


 


“Pension Plan” means any “employee pension benefit plan” (other than a “multi-employer
plan” as defined in Title IV of ERISA which is maintained by any Person which
is not a member of the Borrower Consolidation) that is subject to Title IV of
ERISA and which is maintained for employees of Borrowers or any of its ERISA
Affiliates.


 


“Permitted Encumbrances” shall mean collective reference to the MPI
Permitted Encumbrances, SGLVI Permitted Encumbrances, the MTRI Permitted
Encumbrances, SDI Permitted Encumbrances, PIDI Permitted Encumbrances,
Additional Property Permitted Encumbrances and the Restricted Subsidiary
Permitted Encumbrances.


 


“Person” means an individual, firm, corporation, limited liability
company, trust, association, partnership, joint venture, tribunal or other
entity.


 


34





















 


“Policies of Insurance” shall mean the insurance to be obtained and
maintained by Borrowers throughout the term of this Credit Agreement as
provided by Section 5.09 herein.


 


“Post Foreclosure Plan” shall have the meaning set forth in
Section 9.11(e).


 


“Pricing Certificate” shall have the meaning set forth in
Section 5.08(b).


 


“Prime Rate” means at any time, and from time to time, the rate of
interest most recently announced within WFB at its principal office in San
Francisco, California, as its “Prime Rate”, with the understanding that WFB’s “Prime
Rate” is one of its base rates and serves as the basis upon which effective
rates of interest are calculated for those loans and extensions of credit
making reference thereto, and is evidenced by the recording thereof after its
announcement in such internal publication or publications as WFB may
designate.  Each change in the Prime Rate
shall be effective on the day the change is announced within WFB.


 


“Principal Prepayments” shall have the meaning set forth in
Section 2.07(a) of this Credit Agreement.


 


“Pro Rata Share” shall mean, with respect to any Lender, a percentage
equal to such Lender’s Syndication Interest in the Credit Facility as set forth
on the Schedule of Lenders’ Proportions in Credit Facility.


 


“Protective Advance” means all sums expended as determined by Agent
Bank to be necessary to: (a) protect the priority, validity and
enforceability of the Security Documentation on, and security interests in, any
Collateral and the instruments evidencing or securing the Obligations, or
(b) prevent the value of any Collateral from being materially diminished
(assuming the lack of such a payment within the necessary time frame could potentially
cause such Collateral to lose value), or (c) protect any of the Collateral
from being materially damaged, impaired, mismanaged or taken, including,
without limitation, any amounts expended in accordance with Section 10.20
or post-foreclosure ownership, maintenance, operation or marketing of any
Collateral.


 


“Purchasing Lender” shall have the meaning ascribed to such term in
Section 10.01.


 


“Qualified Appraisal” shall mean reference to an appraisal or
appraisals of the Hotel/Casino Facilities and Collateral, or any portion
thereof, acceptable to Agent Bank, prepared at Borrowers’ expense in compliance
with FIRREA by an appraiser


 


35





















 


acceptable
to Agent Bank, with sufficient copies delivered to Agent Bank for distribution
to each of the Lenders.


 


“RAI” shall mean Racing Acquisition, Inc., an Ohio corporation that was
merged into SDI.


 


“Rate Adjustment Date” shall mean the earlier to occur of
(i) March 1, 2006, or (ii) the date upon which the PIDI License Letter
of Credit is terminated.


 


“Regulatory Redemption” shall have the meaning ascribed to the term “Required
Regulatory Redemption” in Section 3.9 of the Senior Unsecured Indenture.


 


“Related Entities” shall mean collective reference to all stockholders,
employees, Affiliates and Subsidiaries of the Borrowers, or any of them, other
than another Borrower.


 


“Remediation Schedule” shall mean a schedule, acceptable to Agent Bank,
setting forth the remediation activities to be taken with respect to a
particular Noncompliant Additional Property, and the time periods within which
such activities are to be completed.


 


“Replacement Note(s)” shall have the meaning set forth in Section
2.06(i) of the Credit Agreement.


 


“Reportable Event” shall mean any of the events described in
Section 4043(b) of ERISA, other than an event for which the thirty (30)
day notice requirement is waived by regulations.


 


“Requisite Lenders” means, as of any date of determination prior to the
occurrence of an Event of Default, Lenders holding Syndication Interests equal
to or in excess of sixty-six and two-thirds percent (66-2/3%) of the Credit
Facility; and at all times during which an Event of Default has occurred and
remains continuing, Lenders holding a percentage equal to or in excess of sixty-six
and two-thirds percent (66-2/3%) of the Funded Outstandings; provided  that,
(i) in determining such percentage at any given time, all then existing
Defaulting Lenders will be disregarded and excluded and the Pro Rata Shares of
Lenders shall be redetermined, for voting purposes only, to exclude the Pro
Rata Shares of such Defaulting Lenders, and (ii) notwithstanding the
foregoing, at all times when two or more Lenders are party to this Credit
Agreement, the term Requisite Lenders shall in no event mean less than two (2)
Lenders.


 


“Restatement Date” shall mean the date upon which: (i) each requirement
set forth in Article IIIA of this Credit Agreement has been satisfied or waived
and (ii) the


 


36





















 


Security
Documentation have each been filed and/or recorded in accordance with and in
the manner required by the Restatement Closing Instructions.


 


“Restatement Closing Disbursements” shall have the meaning set forth by
Section 2.02(a).


 


“Restatement Closing Instructions” shall mean instructions from Agent
Bank to the Title Insurance Companies setting forth the terms and conditions
under which the title is to be issued.


 


“Restatement Title Coverage” shall mean either: (i) such endorsements
to the Existing Title Insurance Coverage; or (ii) such polices of title
insurance; in each case as may be required by Agent Bank to insure the lien and
priority of the MPI Deed of Trust, the SDI Mortgage and the SGLVI Deed of Trust
as of the Restatement Date, with title insurance coverage in the amount of
Eighty-Five Million Dollars ($85,000,000.00).


 


“Restricted Subsidiary” shall mean a wholly owned Subsidiary of MTRI
(other than MPI, SGLVI, PIDI, SDI and SGFI) which: (a) has not incurred
any Indebtedness other than in connection with a Subsidiary Guaranty,
guaranties issued in connection with the Senior Unsecured Notes, and accrued
expenses, tax liability, deferred taxes and trade accounts payable less than
ninety (90) days past due and other accrued or deferred liabilities incurred in
the ordinary course of business, (b) is not subject to any Liens except
Restricted Subsidiary Permitted Encumbrances and in connection with a
Restricted Subsidiary Stock Pledge, (c) has executed and delivered to
Agent Bank a Subsidiary Guaranty and has executed and delivered to Agent Bank
such security instruments, mortgages, ship mortgages and other documents as
Agent Bank may reasonably require for the purpose of adding its assets, real
and personal, as additional Collateral securing repayment of the Bank
Facilities and the Subsidiary Guaranty, (d) all of the stock or other evidence
of ownership thereof has been pledged in favor of Agent Bank by a Restricted
Subsidiary Security Agreement, and (e) has been designated by MTRI to be a
Restricted Subsidiary by written notice thereof to Agent Bank, subject to MTRI’s
right to redesignate such New Venture Subsidiary as an Unrestricted Subsidiary
by written notice thereof to Agent Bank so long as: (i) no Default or
Event of Default has occurred and remains continuing, and (ii) giving
effect to such redesignation as of the end of the most recently ended Fiscal
Quarter on a pro forma basis, no Default or Event of Default would exist under
the Financial Covenants.


 


“Restricted Subsidiary Permitted Encumbrances” shall mean, at any
particular time with respect to a Restricted Subsidiary, (i) Liens for taxes,
assessments or governmental charges not then due, payable and delinquent, (ii)
statutory Liens for labor or materials or liens for taxes, assessments or
governmental charges not then required to be paid pursuant to
Section 5.10, (iii) Liens in favor of Agent Bank or any


 


37





















 


Lender
created or contemplated by the Security Documentation, (iv) Liens consented to
in writing by Agent Bank upon the approval of Requisite Lenders, (v) Liens
of legally valid capital leases and purchase money security interests for
acquired FF&E up to the maximum amount permitted under
Section 6.09(c), and only to the extent of the lesser of the purchase
money loan or the fair market value of the acquired FF&E at the time of the
acquisition thereof, (vi) Liens of legally valid leases for FF&E,
(vii) easements, licenses or rights-of-way, now existing or hereafter granted
to any Governmental Authority or public utility providing services to the
Restricted Subsidiary or Restricted Subsidiary Venture, (viii) judgment and
attachment Liens which do not constitute an Event of Default,
(ix) statutory or other Liens of landlords and Liens of carriers, warehousemen,
mechanics, customs and revenue authorities and materialmen and other similar
Liens imposed by law incurred in the ordinary course of business which could
not reasonably be expected to cause a Material Adverse Change and which are
discharged in accordance with Section 5.04, (x) Liens incurred or
deposits made in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other types of social security, or to
secure the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, trade contracts, performance and
return-of-money bonds and other similar obligations; (xi) leases or
subleases granted to others not interfering in any material respect with the ordinary
conduct of the business of such Restricted Subsidiary; (xii) the
replacement or renewal of any Lien otherwise permitted hereunder;
(xiii) minor defects, encroachments or irregularities in title not
interfering in any material respect with the ordinary conduct of the business
of such Restricted Subsidiary; and (xiv) Liens in existence at the time of
acquisition or designation of any Restricted Subsidiary, so long as such Lien
is not created or perfected in contemplation of such acquisition or designation.


 


“Restricted Subsidiary Stock Pledge” shall mean the Security Agreement
and Pledge Agreement in substantially the form of the Stock Pledges, and in any
case to the reasonable satisfaction of Agent Bank, to be executed by MTRI in
favor of Agent Bank on behalf of the Banks for the purpose of pledging and
granting a security interest in the capital stock and other interests which it
may have in any Restricted Subsidiary, as it may be amended, modified,
supplemented, extended, renewed or restated from time to time.


 


“Restricted Subsidiary Venture” shall mean a New Venture wholly owned
by a Restricted Subsidiary.


 


“Revolving Credit Note” shall mean the Revolving Credit Note, a copy of
which is marked “Exhibit A”, affixed hereto and by this reference
incorporated herein and made a part hereof, to be executed by Borrowers on the
Restatement Date, payable to the order of Agent Bank on behalf of the Lenders,
evidencing the Credit


 


38





















 


Facility,
as may be amended, modified, extended, renewed or restated from time to time.


 


“Revolving Credit Period” shall mean the period commencing on the
Restatement Date and terminating on the Maturity Date.


 


“SDI” shall mean Scioto Downs, Inc., an Ohio corporation.


 


“SDI Assignment of Entitlements, Contracts, Rents
and Revenues” shall mean the assignment executed by SDI as of August 5, 2003,
whereby SDI presently assigned to Agent Bank in consideration of the Bank
Facilities (reserving a revocable license to retain use and enjoy):
(a) all of its right, title and interest under all SDI Spaceleases and SDI
Equipment Leases and Contracts relating to the SDI Facility, (b) all of
its right, title and interest in and to all permits, licenses and contracts
relating to the SDI Facility, except Gaming Permits and except those permits,
licenses and contracts which are unassignable, and (c) all rents, issues,
profits, revenues and income from the SDI Real Property, from the operation of
the SDI Facility and from any other business activity conducted on the SDI Real
Property, as such assignment may be amended, modified, extended, renewed,
restated, substituted or replaced from time to time.


 


“SDI Collateral” shall mean collective reference to: (i) all of
the SDI Real Property, SDI FF&E, and the contract rights, leases,
intangibles and other interests of SDI, which are subject to the liens and
security interests of the SDI Security Documents; (ii) all rights of SDI
presently assigned pursuant to the terms of the SDI Security Documents; and
(iii) any and all other property and/or intangible rights, interest or
benefits inuring to or in favor of SDI, which are in any manner assigned,
pledged, encumbered or otherwise hypothecated in favor of Agent Bank on behalf
of Lenders to secure payment of the Bank Facilities.


 


“SDI Construction Project” shall mean the expansion project, as may be
proposed by Borrowers, for the construction and development of additional
improvements at the SDI Facility in accordance with plans and specifications
and budget analysis to be provided to Agent Bank and Lenders’ Consultant in
accordance with Section 5.29.


 


“SDI FF&E” shall mean the furniture, fixtures and equipment and all
gaming equipment and devices which have been installed or are to be installed
and used, owned or leased by SDI in connection with the operation of the SDI
Facility.


 


“SDI Facility” shall mean the real property, improvements and
appurtenances located in Columbus, Ohio, owned by SDI, on which SDI owns and


 


39





















 


operates
a harness horse racing facility with pari mutual wagering known as “Scioto
Downs”.


 


“SDI Financing Statements” shall mean the Uniform
Commercial Code financing statements filed in the Office of the Secretary of
State of the State of Ohio on September 2, 2003 and in the Office of the
County Recorder of Franklin County, Ohio on August 8, 2003, in order to
perfect the security interest granted to Agent Bank under the SDI Mortgage and
under other Security Documentation, all in accordance with requirements of the
Ohio Uniform Commercial Code, as such financing statements may be amended,
modified, extended, renewed, restated, substituted or replaced from time to
time.


 


“SDI Permitted Encumbrances” shall mean, at any particular time, (i)
liens for taxes, assessments or governmental charges not then due and payable
or not then delinquent, (ii) statutory liens for labor and/or materials and
liens for taxes, assessments or governmental charges the validity of which, in
either instance, are being contested in good faith by Borrowers by appropriate
proceedings, and as provided in Sections 5.03 and 5.10 hereof,
respectively, provided that, Borrowers shall have maintained adequate reserves
in accordance with GAAP for payment of same, (iii) liens incurred or deposits
made in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other types of social security, or to
secure the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, trade contracts, performance and
return-of-money bonds and other similar obligations (exclusive of obligations
for the payment of borrowed money); (iv) leases or subleases granted to others
(including, without limitation, any Subsidiary) not interfering in any material
respect with the ordinary conduct of the business of the SDI Facility;
(v) liens created or contemplated by the SDI Security Documents, (vi) the
liens, encumbrances and restrictions on the SDI Real Property, SDI FF&E and
existing improvements which are shown as exceptions on Schedule B of the
SDI Title Insurance Policy, (vii) liens consented to in writing by Agent
Bank upon the approval of Requisite Lenders, (viii) liens of legally valid
capital leases and purchase money security interests for SDI FF&E to the
extent permitted by Section 6.09(c), and (ix) each and every easement,
license, restriction or right-of-way that (A) is hereafter granted to any
Governmental Authority or public utility providing services to the SDI Real Property
and (B) does not interfere in any material respect with the SDI Facility; and
(x) judgment liens, writs, warrants, levies, distraints, attachments and
other similar process which do not constitute an Event of Default.


 


“SDI Real Property” shall mean the real property owned by SDI which is
more particularly described on that certain exhibit marked “Exhibit M”,
affixed hereto and by this reference incorporated herein and made a part
hereof.


 


40





















 


“SDI Security Documents” shall mean collective reference to the SDI
Mortgage, SDI Assignment of Entitlements, Contracts, Rents and Revenues, the
SDI Financing Statements and all other documents, instruments or agreements
which are executed or delivered by or on behalf of SDI, and accepted by Agent
Bank, on behalf of the Lenders, as security for payment of the Bank Facilities.


 


“SDI Title Insurance Policy” shall mean the ALTA Extended Coverage
Lenders Policy of Title Insurance issued by the Commonwealth Land Title
Insurance Company, as of August 1, 2003, in the aggregate amount of Seven
Million Dollars ($7,000,000.00) in favor of Agent Bank, insuring the SDI
Mortgage as a first priority Lien encumbering the SDI Real Property; subject
only to the exceptions shown on Schedule B, Part One thereof and the
endorsements thereto.


 


“SEC” shall mean Securities and Exchange Commission.


 


“SGFI” shall have the meaning ascribed to such
term in the Preamble of this Credit Agreement.


 


“SGLVI” shall have the meaning ascribed to such term in the Preamble of
this Credit Agreement.


 


“SGLVI Assignment of Entitlements, Contracts,
Rents and Revenues” shall mean the assignment to be executed by SGLVI on or
before the Closing Date, whereby SGLVI
presently assigns to Agent Bank in consideration of the Bank Facilities
(reserving a revocable license to retain use and enjoy): (a) all of its
right, title and interest under all SGLVI Spaceleases and SGLVI Equipment
Leases and Contracts relating to the SGLVI Hotel/Casino Facility, (b) all
of its right, title and interest in and to all permits, licenses and contracts
relating to the SGLVI Hotel/Casino Facility, except Gaming Permits and except
those permits, licenses and contracts which are unassignable, and (c) all
rents, issues, profits, revenues and income from the SGLVI Real Property, from
the operation of the SGLVI Hotel/Casino Facility and from any other business
activity conducted on the SGLVI Real Property, as such assignment may be
amended, modified, extended, renewed, restated, substituted or replaced from
time to time.


 


“SGLVI Closing Instructions” shall mean the Closing letter given to the
SGLVI Title Insurance Company, by Agent Bank, as of the Closing Date setting
forth the requirements for issuance of the SGLVI Title Insurance Policy and
other conditions for recording the SGLVI Deed of Trust and the other SGLVI
Security Documents; all to the reasonable satisfaction of Agent Bank, Lenders
and the Borrowers.


 


“SGLVI Collateral” shall mean collective reference to: (i) all of
the SGLVI Real Property, SGLVI FF&E, and the contract rights, leases,
intangibles and other


 


41





















 


interests
of SGLVI, which are subject to the liens and security interests of the SGLVI
Security Documents; (ii) all rights of SGLVI presently assigned pursuant
to the terms of the SGLVI Security Documents; and (iii) any and all other
property and/or intangible rights, interest or benefits inuring to or in favor
of SGLVI, which are in any manner assigned, pledged, encumbered or otherwise hypothecated
in favor of Agent Bank on behalf of Lenders to secure payment of the Bank
Facilities.


 


“SGLVI Deed of Trust” shall mean the Deed of
Trust, Fixture Filing and Security Agreement with Assignment of Rents executed
by SGLVI as of the Closing Date in
favor of Agent Bank, encumbering the SGLVI Real Property, SGLVI FF&E, SGLVI
Hotel/Casino Facility and other Collateral described therein, all for the
purpose of securing the Bank Facilities and Borrowers’ payment and performance
under each of the Loan Documents (other than the Environmental Certificate) as
such deed of trust may be amended, modified, extended, renewed, restated,
substituted or replaced from time to time.


 


“SGLVI Equipment Leases and Contracts” shall mean the executed leases
and purchase contracts pertaining to the SGLVI FF&E wherein SGLVI is the
lessee or vendee, as the case may be, as set forth on that certain schedule
marked “Schedule 4.16(B)”, affixed to the Existing Credit Agreement and by
this reference incorporated herein and made a part hereof.


 


“SGLVI FF&E” shall mean the furniture, fixtures and equipment and
all gaming equipment and devices which have been installed or are to be
installed and used, owned or leased by SGLVI in connection with the operation
of the SGLVI Hotel/Casino Facility.


 


“SGLVI Financing Statements” shall mean the
Uniform Commercial Code financing statements to be filed in the Office of the
Secretary of State of the State of Nevada and in the Office of the County
Recorder of Clark County, Nevada, in order to perfect the security interest
granted to Agent Bank under the SGLVI Deed of Trust and under other Security
Documentation, all in accordance with requirements of the Nevada Uniform
Commercial Code, as such financing statements may be amended, modified,
extended, renewed, restated, substituted or replaced from time to time.


 


“SGLVI Hotel/Casino Facility” shall mean the improvements and the hotel
and casino business and related activities conducted on the SGLVI Real Property
under the trade name of Ramada Inn and Speedway Casino.


 


“SGLVI Permitted Encumbrances” shall mean, at any particular time, (i)
liens for taxes, assessments or governmental charges not then due and payable
or not then delinquent, (ii) statutory liens for labor and/or materials and
liens for taxes,


 


42





















 


assessments
or governmental charges the validity of which, in either instance, are being
contested in good faith by Borrowers by appropriate proceedings, and as
provided in Sections 5.03 and 5.10 hereof, respectively, provided that,
Borrowers shall have maintained adequate reserves in accordance with GAAP for
payment of same, (iii) liens incurred or deposits made in the ordinary
course of business in connection with workers’ compensation, unemployment
insurance and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, trade contracts, performance and return-of-money bonds
and other similar obligations (exclusive of obligations for the payment of
borrowed money); (iv) leases or subleases granted to others (including, without
limitation, any Subsidiary) not interfering in any material respect with the
ordinary conduct of the business of the SGLVI Hotel/Casino Facility;
(v) liens created or contemplated by the SGLVI Security Documents, (vi)
the liens, encumbrances and restrictions on the SGLVI Real Property, SGLVI
FF&E and existing improvements which are shown as exceptions on
Schedule B of the SGLVI Title Insurance Policy, (vii) liens consented
to in writing by Agent Bank upon the approval of Requisite Lenders, (viii)
liens of legally valid capital leases and purchase money security interests for
SGLVI FF&E to the extent permitted by Section 6.09(c), and (ix) each
and every easement, license, restriction or right-of-way that (A) is hereafter
granted to any Governmental Authority or public utility providing services to
the SGLVI Real Property and (B) does not interfere in any material respect with
the SGLVI Hotel/Casino Facility; and (x) judgment liens, writs, warrants,
levies, distraints, attachments and other similar process which do not
constitute an Event of Default.


 


“SGLVI Real Property” shall mean the real property owned by SGLVI which
is more particularly described on that certain exhibit marked “Exhibit L”,
affixed hereto and by this reference incorporated herein and made a part
hereof.


 


“SGLVI Security Documents” shall mean collective reference to the SGLVI
Deed of Trust, SGLVI Assignment of Entitlements, Contracts, Rents and Revenues,
the SGLVI Financing Statements and all other documents, instruments or
agreements which are executed or delivered by or on behalf of SGLVI, and
accepted by Agent Bank, on behalf of the Lenders, as security for payment of
the Bank Facilities.


 


“SGLVI Spaceleases” shall mean the executed leases and concession
agreements pertaining to the SGLVI Hotel/Casino Facility, or any portion
thereof, wherein SGLVI is the lessor, as set forth on that certain schedule
marked “Schedule 4.15(B)”, affixed to the Existing Credit Agreement and by
this reference incorporated herein and made a part hereof.


 


“SGLVI Title Insurance Company” shall mean Nevada Title Company, with
offices located at 2500 North Buffalo Drive, Suite 150, Las Vegas, Nevada, as
the


 


43





















 


issuing
agent for Commonwealth Land Title Insurance Company, together with such
reinsurers with direct access as are requested by Agent Bank or other title
insurance company or companies as may be reasonably acceptable to Agent Bank.


 


“SGLVI Title Insurance Policy” shall mean the ALTA Extended Coverage
Lenders Policy of Title Insurance issued by the SGLVI Title Insurance Company,
as of the Closing Date, in the aggregate amount of Six Million Dollars
($6,000,000.00) in favor of Agent Bank, insuring the SGLVI Deed of Trust as a
first priority Lien encumbering the SGLVI Real Property; subject only to the
exceptions shown on Schedule B, Part One thereof, together with such
endorsements thereto as are required by Agent Bank (including, without
limitation, a tie-in endorsement with respect to the MPI Title Insurance
Policy), all in accordance with the SGLVI Closing Instructions.


 


“Schedule of Restricted and Unrestricted Subsidiaries” shall mean the
Schedule of Restricted and Unrestricted Subsidiaries, a copy of which is set
forth as Schedule 4.24, affixed hereto and by this reference incorporated
herein and made a part hereof, setting forth the information described in
Section 4.24 with respect to each Restricted and Unrestricted Subsidiary which
exists as of the Restatement Date.


 


“Schedule of Lenders’ Proportions in Credit Facility” shall mean the
Schedule of Lenders’ Proportions in Credit Facility, a copy of which is marked “Schedule 2.01(a)”,
affixed hereto and by this reference incorporated herein and made a part
hereof, setting forth the respective Syndication Interest and maximum amount to
be funded under the Credit Facility by each Lender, as the same may be amended,
modified or restated from time to time in connection with an Assignment and
Assumption Agreement.


 


“Scioto Merger” shall mean the merger of SDI and RAI with SDI remaining
as the surviving corporation as a wholly owned Subsidiary of MTRI, pursuant to
the terms of the Scioto Merger Agreement.


 


“Scioto Merger Agreement” shall mean the Agreement and Plan of Merger
dated December 23, 2002, as amended by Amendment No. 1 to Agreement and
Plan of Merger dated February 24, 2003, executed among MTRI, as parent,
RAI, as the merger subsidiary, and SDI, as the company, setting forth the terms
and conditions for the Scioto Merger.


 


“Scioto Merger Effective Date” shall mean the date upon which the
Scioto Merger was consummated.


 


“Schedule of Significant Litigation” shall mean the Schedule of
Significant Litigation, a copy of which is set forth as Schedule 3.18,
affixed hereto and by this


 


44





















 


reference
incorporated herein and made a part hereof, setting forth the information
described in Section 3.18 with respect to each Significant Litigation.


 


“Secured Interest Rate Hedge(s)” shall mean any Interest Rate Hedge
entered into between any Borrower and any Lender, or Affiliate of any Lender,
which is secured by the Security Documentation.


 


“Securities Act” shall mean the Securities Act of 1933, as amended.


 


“Security Document Amendments” shall mean collective reference to the
amendment documents to be delivered on or before the Restatement Date under
Section 3.03.


 


“Security Documentation” shall mean a collective reference to the MPI
Security Documents, SGLVI Security Documents, the MTRI Security Documents, the
Trademark Security Agreement and all other instruments and agreements to be
executed by or on behalf of Borrowers or other applicable Persons, in favor of
Agent Bank on behalf of the Lenders securing repayment of the Credit Facility.


 


“Senior Unsecured Indenture” shall mean that certain Indenture dated as
of March 25, 2003, executed by and among MTRI, as issuer, MPI, SGLVI and
PIDI, as guarantors, each other Subsidiary of MTRI that is or becomes a
guarantor thereunder, and the Indenture Trustee, as trustee, pursuant to which
MTRI issued the Senior Unsecured Notes.


 


“Senior Unsecured Notes” shall mean at any time the issued and
outstanding 9 3/4% Senior Unsecured Notes due April 1, 2010, in the
aggregate principal amount of One Hundred Thirty Million Dollars
($130,000,000.00).


 


“Senior Unsecured Notes Effective Date” shall mean the date upon which
the Senior Unsecured Notes were issued by MTRI and MTRI received the proceeds
thereof, net of any discounts and any other
amounts due to the initial purchasers or third parties in connection with
offering and issuance of the Senior Unsecured Notes.


 


“Share Repurchases” shall mean the purchase of shares of any class of stock,
option, right or other equity interest, whether voting or non-voting of MTRI by
any member of the Borrower Consolidation, or any of them.


 


“Significant Litigation” shall mean each action, suit, proceeding,
litigation and controversy involving Borrowers, or any of them, involving
claims in excess of One Million Dollars ($1,000,000.00) or which if determined
adverse to the interests of Borrowers, or any of them, could result in a
Material Adverse Change.


 


45





















 


“Spaceleases” shall mean collective reference to the MPI Spaceleases
and SGLVI Spaceleases.


 


“Standby Letter(s) of Credit” shall mean a letter or letters of credit
issued by L/C Issuer pursuant to Section 2.14 of the Credit Agreement for
the purpose of securing payment or performance of a financial obligation of
Borrowers, other than in connection with the payment for goods, equipment or
materials.


 


“Stated Amount” shall mean the maximum amount which L/C Issuer may be
required to disburse to the beneficiary(ies) of a Letter(s) of Credit under the
terms thereof.


 


“Stated Expiry Date(s)” shall mean the date set forth on the face of a
Letter(s) of Credit as the date when all obligations of L/C Issuer to advance
funds thereunder will terminate, as the same may be extended from time to time.


 


“Stock Pledges” shall mean collective reference to: (i) the
Security Agreement and Pledge of Stock (Nevada) dated as of February 10,
2000, executed between MTRI, as debtor, and Agent Bank, as secured party,
together with Speakeasy Gaming of Las Vegas, Inc. Certificate No. 2 dated
January 24, 2000, for 100 shares, issued in favor of MTRI and the
Irrevocable Stock Power executed in connection therewith, (ii) the
Security Agreement and Pledge of Stock dated concurrently herewith, executed
between MTRI, as debtor, and Agent Bank, as secured party, together with
Mountaineer Park, Inc. Certificate No. 16 dated October 16, 1992 for 110
shares, issued in favor of MTRI (formerly Excalibur Holding Corporation) and
the Irrevocable Stock Power executed in connection therewith, and
(iii) each of Security Agreement and Pledge of Stock and related stock
powers executed in favor of Agent Bank, including each Restricted Subsidiary
Stock Pledge and the Stock Pledges to be executed on or before the Restatement
Date for the issued and outstanding shares of PIDI, SDI and SGFI; in each case
executed and delivered to Agent Bank on behalf of the Lenders as security for
the Bank Facilities and all other sums which may be owing by Borrowers to the Banks
from time to time under the Credit Agreement, as the same may be amended,
modified or restated from time to time (including, without limitation, the
amendment and restatement of the Existing Credit Agreement evidenced by this
Credit Agreement and the Revolving Credit Note executed concurrently herewith),
as the same may be amended, modified or restated from time to time.


 


“Subsidiary” shall mean, on the date in question, any Person of which
an aggregate of 50% or more of the stock of any class or classes (or equivalent
interests) is owned of record or beneficially, directly or indirectly, by
another Person and/or any of its Subsidiaries, if the holders of the stock of
such class or classes (or equivalent


 


46





















 


interests)
(a) are ordinarily, in the absence of contingencies, entitled to vote for the
election of a majority of the directors (or individuals performing similar
functions) of such Person, even though the right so to vote has been suspended
by the happening of such a contingency, or (b) are entitled, as such holders,
to vote for the election of a majority of the directors (or individuals
performing similar functions) of such Person, whether or not the right so to
vote exists by reason of the happening of a contingency.


 


“Subsidiary Guaranty” shall mean the General Continuing Subsidiary
Guaranty to be executed by each Subsidiary in favor of the Agent Bank on behalf
of Banks in the form of the General Continuing Subsidiary Guaranty marked “Exhibit J”,
affixed hereto and by this reference incorporated herein and made a part
hereof, under the terms of which each Subsidiary irrevocably and
unconditionally guaranties to Agent Bank on behalf of the Banks the full and
prompt payment and performance of all Obligations.


 


“Swingline Advance” shall mean each advance made by Swingline Lender to
Borrowers under the Swingline Facility.


 


“Swingline Facility” shall mean the agreement of Swingline Lender to
make Swingline Advances to Borrowers subject to the terms and conditions and up
to the maximum amounts and for the duration as set forth in Section 2.08
of this Credit Agreement.


 


“Swingline Lender” shall have the meaning set forth in the Preamble of
this Credit Agreement.


 


“Swingline Note” shall mean the Swingline Note, a copy of which is
marked “Exhibit P”, affixed hereto and by this reference incorporated
herein and made a part hereof, to be executed by Borrowers on the Restatement
Date, payable to the order of Swingline Lender evidencing the Swingline
Facility, as the same may be amended or restated from time to time.


 


“Swingline Outstandings” shall mean the aggregate amount of all
outstanding and unpaid Swingline Advances as of each date of determination.


 


“Syndication Costs” shall mean collective reference to all costs and
expenses incurred by Agent Bank in connection with the sale, transfer and/or
assignment of a Syndication Interest to any other Lender.


 


“Syndication Interest” shall mean the proportionate interest of each
Lender in the Credit Facility as set forth on the Schedule of Lenders’
Proportions in Credit Facility, as the same may be amended or restated from
time to time.


 


47





















 


“TRGI” shall mean Three Rivers Gaming, Inc. (formerly known as Keystone
State Gaming), which shall be deemed to be an Unrestricted Subsidiary until
otherwise designated by MTRI in accordance with Section 5.27.


 


“Tangible Net Worth” shall mean Assets, excluding Intangibles, less
Liabilities, in each instance calculated without regard to Insider Non-Cash
Loans and Insider Cash Loans.


 


“Tecnica” shall mean Tecnica Development Corp.


 


“Tecnica Stock Pledge” shall mean the pledge of all outstanding stock
of Tecnica in favor of MTR as additional security for repayment of the Green
Shingle Loan.


 


“Title Insurance Company” shall mean a collective reference to: (i) the
issuers of the Existing Title Coverage; or (ii) First American Title Insurance
Company as the issuer of the Restatement Title Coverage, if the Restatement
Title Coverage consists of substitute polices.


 


“Title Insurance Policies” shall mean the Existing Title Insurance
Coverage as supplemented or superceded by the Restatement Title Insurance
Coverage.


 


“Trademark Security Agreement” shall
mean the security agreement to be executed by each of the Borrowers as of the
Restatement Date for the purpose of granting a security interest in favor of
Agent Bank in all trademarks, tradenames, copyrights and servicemarks used in
connection with the Hotel/Casino Facilities, including, without limitation each
registration and application set forth on Schedule 4.22 or otherwise
described on Schedule A to the Trademark Security Agreement, as such
Trademark Security Agreement may be amended, modified, supplemented, replaced,
renewed or restated from time to time.


 


“Unrestricted Subsidiary shall mean each Subsidiary of MTRI which is
not a Restricted Subsidiary or a Borrower.


 


“Unsuitable Lender” shall have the meaning set forth in Section
10.10(d).


 


“Voluntary Permanent Reduction” shall have the meaning set forth in
Section 2.01(c).


 


“WFB” shall mean Wells Fargo Bank, National Association.


 


48





















 


“West Virginia Gaming Authorities” shall mean the West Virginia State
Racing Commission and West Virginia State Lottery Commission and any other
applicable governmental or administrative state or local agency involved in the
regulation of gaming and gaming activities conducted by the Borrower
Consolidation in the State of West Virginia.


 


“Woodview Citizens Bank Documents” shall
mean a collective reference to: (i) that certain Deed of Trust encumbering the
Woodview Real Property which is executed by Robert H. Hillis, as borrower,
for the benefit of The Citizens Banking Company, as lender, and which is
recorded in the Official Records of Hancock County, West Virginia on February
4, 1994 in Book 313 at Page 609 as Document No. 007556; (ii) the
promissory note secured by said Deed of Trust which is executed by the Woodview
Partnership under date of January 31, 1994 and is payable to the order of
The Citizens Banking Company in the original principal amount of Two Hundred
Six Thousand Dollars ($206,000.00); and (iii) that certain Commercial Loan
Modification Agreement which is executed under date of January 21, 1999 by the
Woodview Partnership, MPI, Robert B. Hillis, Randall J. Hillis and
The Citizens Banking Company.


 


“Woodview Citizens Bank Estoppel” shall mean the Estoppel Certificate
(The Citizens Banking Company) executed by The Citizens Banking Company, as of
the Closing Date, wherein it certified and represented to Agent Bank that:
(a) the Woodview Citizens Bank Documents represent the entire agreement
between The Citizens Banking Company and the borrowers under the Woodview
Citizens Bank Documents, (b)  the Woodview Citizens Bank Documents have
not been modified, supplemented or amended except as described therein,
(c) to the best knowledge of The Citizens Banking Company, there are no
existing or continuing defaults under the Woodview Citizens Bank Documents, and
(d) other provisions are set forth regarding notice to Agent Bank in the
event of default under the Woodview Citizens Bank Documents and the rights of
Banks to cure any such default.


 


“Woodview Partnership” shall mean Woodview Golf Course, a West Virginia
general partnership.


 


“Woodview Real Property” shall mean that portion of the MPI Real
Property which is described as Parcel 2 on Exhibit K affixed hereto
and by this reference incorporated herein and made a part hereof.


Section 1.02.                Interpretation and
Construction.  In this Credit
Agreement, unless the context otherwise requires:


(a)           Articles and Sections mentioned by
number only are the respective Articles and Sections of this Credit Agreement
as so numbered;


 


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(b)           Words importing a particular gender
mean and include every other gender, and words importing the singular number
mean and include the plural number and vice versa;


 


(c)           All times specified herein, unless
otherwise specifically referred, shall be the time in San Francisco,
California;


 


(d)           Any headings preceding the texts of
the several Articles and Sections of this Credit Agreement, and any table of
contents or marginal notes appended to copies hereof, shall be solely for
convenience of reference and shall not constitute a part of this Credit
Agreement, nor shall they affect its meaning, construction or effect;


 


(e)           If any clause, definition, provision
or Section of this Credit Agreement shall be determined to be apparently
contrary to or conflicting with any other clause, definition, provision or
Section of this Credit Agreement then the clause, definition, provision or
Section containing the more specific provisions shall control and govern with
respect to such apparent conflict.  The
parties hereto do agree that each has contributed to the drafting of this
Credit Agreement and all Loan Documents and that the provisions herein
contained shall not be construed against either Borrowers or Lenders as having
been the person or persons responsible for the preparation thereof;


 


(f)            The terms “herein”, “hereunder”, “hereby”,
“hereto”, “hereof” and any similar terms as used in the Credit Agreement refer
to this Credit Agreement; the term “heretofore” means before the date of
execution of this Credit Agreement; and the term “hereafter” means after the
date of the execution of this Credit Agreement;


 


(g)           All accounting terms used herein
which are not otherwise specifically defined shall be used in accordance with
GAAP;


 


(h)           If any clause, provision or Section
of this Credit Agreement shall be ruled invalid or unenforceable by any court
of competent jurisdiction, such holding shall not invalidate or render
unenforceable any of the remaining provisions hereof;


 


(i)            Each reference to this Credit
Agreement or any other Loan Document or any of them, as used in this Credit
Agreement or in any other Loan Document, shall be deemed a reference to this
Credit Agreement or such Loan Document, as applicable, as the same may be
amended, modified, supplemented, replaced, renewed or restated from time to
time; and


 


(j)            Every affirmative duty, covenant and
obligation of Borrowers hereunder shall be equally applicable to each of the
Borrowers individually and where the


 


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context would result in the best interests or rights of
Banks shall be construed to mean “Borrowers or any of them” or “Borrowers and
each of them”, as applicable.


 


Section 1.03.          Use of
Defined Terms.  Unless otherwise
defined or the context otherwise requires, terms for which meanings are
provided in this Credit Agreement shall have such meanings when used in the
Revolving Credit Note and in each Loan Document and other communication
delivered from time to time in connection with this Credit Agreement or any
other Loan Document.


 


Section 1.04.          Cross-References.  Unless otherwise specified, references in
this Credit Agreement and in each other Loan Document to any Article or Section
are references to such Article or Section of this Credit Agreement or such
other Loan Document, as the case may be, and, unless otherwise specified,
references in any Article, Section or definition to any clause are references
to such clause of such Article, Section or definition.


 


Section 1.05.          Exhibits
and Schedules.  All Exhibits and
Schedules to this Credit Agreement, either as originally existing or as the
same may from time to time be supplemented, modified or amended, are
incorporated herein by this reference.


 


ARTICLE
II


 


AMOUNT, TERMS AND SECURITY OF
THE CREDIT FACILITY


 


Section 2.01.          The Credit
Facility.


 


a.             Subject to the conditions and upon
the terms hereinafter set forth and in accordance with the terms and provisions
of the Revolving Credit Note, on and after the Restatement Date Lenders severally agree in the proportions set
forth on the Schedule of Lenders’ Proportions in Credit Facility to lend and
advance Borrowings to Borrowers, up to the Maximum Availability such amounts as
Borrowers may request during the Revolving Credit Period by Notice of Borrowing
duly executed by an Authorized Officer and delivered to Agent Bank from time to
time for Borrowings under the Credit Facility as provided in Section 2.03.


 


b.             Subject to the uses and purposes
set forth in Section 2.02, on and after the Restatement
Date Borrowers may borrow, repay and reborrow the Available Borrowings up to
the Maximum Permitted Balance from time to time.  Provided, however, amounts of Funded
Outstandings bearing interest with reference to a LIBO Rate shall be subject to
Breakage Charges incident to prepayment. 
The Credit Facility shall be for a term commencing on the Restatement Date and terminating on the
Maturity Date, on which date the entire outstanding balance of the Credit
Facility shall be fully paid and Credit Facility Termination shall occur.  In no event shall any Lender


 


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be
liable to fund any amounts under the Credit Facility in excess of its
respective Syndication Interest in any Borrowing.


 


c.             Borrowers may voluntarily
permanently reduce the Maximum Permitted Balance from time to time (a “Voluntary
Permanent Reduction”) on the following conditions:


 


(i)            that each such
Voluntary Permanent Reduction be in the minimum amount of One Million Dollars
($1,000,000.00) and made in writing by an Authorized Officer, effective on the
fifth (5th) Banking Business Day following receipt by Agent Bank;


 


(ii)           that each such
Voluntary Permanent Reduction shall be irrevocable and a permanent reduction to
the Maximum Permitted Balance; and


 


(iii)          in the event any
Voluntary Permanent Reduction reduces the Maximum Permitted Balance to less
than the sum of the Funded Outstandings, the Borrowers shall immediately cause
the Funded Outstandings to be reduced by such amount as may be necessary to
cause the Funded Outstandings to be equal to or less than the Maximum Permitted
Balance.


 


Section 2.02.          Use of
Proceeds of the Credit Facility. 
Available Borrowings shall be used for the purposes of:


 


a.             On the Restatement Date
(collectively the “Restatement Closing
Disbursements”):


 


(i)            continuing the
outstanding principal balance under the Existing Credit Facility as Funded
Outstandings under the Credit Facility; and


 


(ii)           paying in full the
fees due Agent Bank as set forth in the Fee Side Letter, the costs, fees and
expenses of Title Insurance Companies incurred in connection with the issuance
of the Title Endorsements, the costs, fees and expenses of the attorneys for
Borrowers and the costs, fees and expenses of Henderson & Morgan, LLC,
attorneys for Agent Bank, and associate counsel and insurance consultants
retained by them incurred to the Restatement
Date.


 


b.             During the Revolving Credit Period:


 


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(i)            funding working
capital needs of the Borrower Consolidation relating to the Hotel/Casino Facilities;


 


(ii)           funding ongoing
Capital Expenditure requirements of the Borrower Consolidation relating to the
Hotel/Casino Facilities; and


 


(iii)          funding for other
general corporate purposes.


 


Section 2.03.          Notice
of Borrowings.


 


a.             An Authorized Officer may give
Agent Bank, no later than 9:00 a.m. on any Banking Business Day at Agent Bank’s
office specified in Section 2.07, three (3) full Banking Business Days prior
written notice in the form of the Notice of Borrowing (“Notice of Borrowing”),
a copy of which is marked “Exhibit B”, affixed hereto and by this
reference incorporated herein and made a part hereof, for each proposed
Borrowing to be made with reference to a LIBO Rate and at least one (1) full
Banking Business Day prior notice for all other Borrowings, specifying the date
and amount of each proposed Borrowing. 
Agent Bank shall give prompt notice of each Notice of Borrowing to
Lenders of the amount to be funded and specifying the Funding Date in accordance
with Section 9.03(a).  Not later
than 11:00 a.m. on the Funding Date specified, each Lender shall disburse to
Agent Bank its Pro Rata Share of the amount to be advanced by each such Lender
in lawful money of the United States of America and in immediately available
funds.  Agent Bank shall make the
proceeds of such fundings received by it on or before 11:00 a.m. from the
Lenders available to Borrowers by depositing, prior to 1:00 p.m. on the day so
received (but not prior to the Funding Date) in the Designated Deposit Account
maintained with Agent Bank, the amounts received from the Lenders.  No Borrowing may exceed the Available
Borrowings.  Each Borrowing to be made
with reference to the Base Rate shall be in a minimum amount of Five Hundred
Thousand Dollars ($500,000.00) and in increments of One Hundred Thousand
Dollars ($100,000.00).  Borrowers shall
be entitled to no more than three (3) Borrowings during each calendar month,
exclusive of Borrowings made for the sole purpose of funding repayment of a Swingline
Advance.


 


b.             The failure of any Lender to fund
its Pro Rata Share of any Borrowing on any Funding Date shall neither relieve
any other Lender of any obligation hereunder to fund its Pro Rata Share of such
Borrowing on such Funding Date nor relieve such Lender which has failed to fund
its Pro Rata Share of its obligations to Borrowers hereunder.  No Lender shall be responsible for the
failure of any other Lender to fund its Pro Rata Share of such Borrowing on any
Funding Date nor shall any Lender be responsible for the failure of any other
Lender to perform its respective obligations hereunder.  The provisions set forth in
Section 10.10(d) shall be applicable


 


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to
a Defaulting Lender to the same extent as if such Defaulting Lender was found
to be an Unsuitable Lender.


 


Section 2.04.          Conditions
of Borrowings.  Borrowings, other
than Borrowings made at the request of Agent Bank for the purpose of funding
repayment of Swingline Outstandings and/or L/C Reimbursement Obligations as
hereinafter provided, will only be made so long as Borrowers are in full
compliance with each of the requirements and conditions precedent set forth in
Article III B of this Credit Agreement; provided, however, upon the
consent of Requisite Lenders, Lenders shall advance Borrowings notwithstanding
the existence of less than full compliance with the requirements of Article III
B and Borrowings so made shall be deemed to have been made pursuant to this
Credit Agreement.


 


Section 2.05.          The
Revolving Credit Note and Interest Rate Options.


 


a.             The Credit Facility shall be
further evidenced by the Revolving Credit Note payable to the order of Agent
Bank on behalf of the Lenders.  Agent
Bank shall record manually or electronically the date and amount of each
Borrowing advanced by the Lenders together with the applicable Interest Period
in the case of portions of the unpaid principal under the Credit Facility
bearing interest with reference to a LIBO Rate, and the amount of each
repayment of principal made thereunder by Borrowers and the entry of such
records shall be conclusive absent manifest or demonstrable error; provided,
however, the failure to make such a record or notation with respect to any
Borrowing or repayment thereof, or an error in making such a record or
notation, shall not limit or otherwise affect the obligations of Borrowers
hereunder or under the Revolving Credit Note.


 


b.             Interest shall accrue on the entire
outstanding principal balance of the Credit Facility at a rate per annum equal
to the Base Rate plus the Applicable Margin, unless Borrowers request a LIBOR
Loan pursuant to Section 2.03 or elect pursuant to Section 2.05(c)
hereinbelow to have interest accrue on a portion or portions of the outstanding
principal balance of the Credit Facility at a LIBO Rate (“Interest Rate Option”),
in which case interest on such portion or portions shall accrue at a rate per
annum equal to such LIBO Rate plus the Applicable Margin in effect as of the
second Banking Business Day prior to the first day of the applicable Interest
Period, as long as: (i) each such LIBOR Loan is in a minimum amount of
Five Million Dollars ($5,000,000.00) plus minimum increments of One Million
Dollars ($1,000,000.00), or such lesser amount as equals the Maximum Permitted
Balance, and (ii) no more than five (5) LIBOR Loans may be outstanding at
any one time.  Interest accrued on each
Base Rate Loan shall be due and payable on the first day of the month following
the Closing Date, on the first day of each successive month thereafter,
and on the Maturity Date.  For each LIBOR
Loan, accrued interest shall be due and payable at the end of each Interest
Period applicable thereto, but in any event no less frequently than at the


 


54





















 


end
of each three (3) month period during the term of such LIBOR Loan.  Agent Bank shall notify Borrower in writing
five (5) Banking Business Days prior to each payment of interest due herewith,
detailing the amount owed and the calculation thereof.  Except as qualified above, the outstanding
principal balance hereunder may be a Base Rate Loan or one or more LIBOR Loans,
or any combination thereof, as Borrowers shall specify.


 


c.             So long as no Default or Event of
Default shall have occurred and remains continuing, Borrowers may Convert from
one Interest Rate Option to another Interest Rate Option or continue an
Interest Rate Option for another Interest Period by giving irrevocable notice
to Agent Bank of such Conversion by 11:00 a.m., on a day which is at least
three (3) Banking Business Days prior to the proposed date of such Conversion
to or Continuation of each LIBOR Loan or one (1) Banking Business Day prior to
the proposed date of such Conversion to each Base Rate Loan.  Each such notice shall be made by an
Authorized Officer by telephone and thereafter immediately confirmed in writing
by delivery to Agent Bank of a Continuation/Conversion Notice specifying the
date of such Conversion or Continuation, the amounts to be so Converted or
Continued and the Interest Period if the Conversion or Continuation is being
made with reference to a LIBOR Loan. 
Upon receipt of such Continuation/Conversion Notice, Agent Bank shall
promptly set the applicable interest rate (which in the case of a LIBOR Loan
shall be the LIBO Rate plus the Applicable Margin as of the second Banking
Business Day prior to the first day of the applicable Interest Period) and the
applicable Interest Period if the Conversion or Continuation is being made with
reference to a LIBOR Loan and shall confirm the same in writing to Borrowers
and Lenders.  Each Conversion or
Continuation shall be on a Banking Business Day.  No LIBOR Loan shall be converted to a Base
Rate Loan or renewed on any day other than the last day of the current Interest
Period relating to such amounts outstanding unless Borrowers pay any applicable
Breakage Charges.  All Borrowings
advanced at the request of Agent Bank under Section 2.08 of the Credit
Agreement shall bear interest with reference to the Base Rate plus the
Applicable Margin, subject to Borrowers’ right to Convert such Borrowing to a
LIBOR Loan or LIBOR Loans as provided herein. 
If Borrowers fail to give a Continuation/Conversion Notice for the
continuation of a LIBOR Loan as a LIBOR Loan for a new Interest Period in
accordance with this Section 2.05(c), such LIBOR Loan shall automatically
become a Base Rate Loan at the end of its then current Interest Period.


 


d.             Each interest period (each
individually an “Interest Period” and collectively the “Interest Periods”) for
a LIBOR Loan shall commence on the date such LIBOR Loan is made or the date of
Conversion or Continuation of any amount or amounts of the outstanding
Borrowings hereunder to a LIBOR Loan, as the case may be, and shall end on the
date which is one (1), two (2), three (3) or six (6) months thereafter, as
elected by Borrowers.  However, no
Interest Period may extend beyond the Maturity Date.  Each Interest Period for a LIBOR Loan shall
commence and end on


 


55





















 


a
Banking Business Day.  If any Interest
Period commences on a date for which there is no corresponding date in the
month in which it is scheduled to end, such Interest Period shall end on the
last Banking Business Day of such month. 
If any Interest Period would otherwise expire on a day which is not a
Banking Business Day, the Interest Period shall be extended to expire on the
next succeeding Banking Business Day, unless the result of such extension would
be to carry such Interest Period into another calendar month, in which event such
Interest Period shall end on the immediately preceding Banking Business Day.


 


e.             The applicable LIBO Rate and Base
Rate shall be determined by the Agent Bank, and notice thereof shall be given
promptly to Borrowers and Lenders.  Each
determination of the applicable Base Rate and LIBO Rate shall be conclusive and
binding upon the Borrowers, in the absence of manifest or demonstrable
error.  The Agent Bank shall, upon
written request of Borrowers or any Lender, deliver to Borrowers or such
Lender, as the case may be, a statement showing the computations used by the
Agent Bank in determining any rate hereunder.


 


f.              Computation of fees and interest
on all Base Rate Loans and LIBOR Loans shall be calculated on the basis of a
year of three hundred sixty (360) days and the actual number of days
elapsed.  The applicable Base Rate shall
be effective the same day as a change in the Base Rate is announced by WFB as
being effective.


 


g.             If with respect to any Interest
Period, (a) the Agent Bank reasonably determines (which determination shall be
binding and conclusive on Borrowers) that by reason of circumstances affecting
the inter-bank eurodollar market adequate and reasonable means do not exist for
ascertaining the applicable LIBO Rate, or (b) Requisite Lenders advise
Agent Bank that the LIBO Rate as determined by Agent Bank will not adequately
and fairly reflect the cost to such Lenders of maintaining or funding, for such
Interest Period, a LIBOR Loan under the Credit Facility, then so long as such
circumstances shall continue:  (i) Agent
Bank shall promptly notify Borrowers thereof, (ii) the Lenders shall not
be under any obligation to make a LIBOR Loan or Convert a Base Rate Loan into a
LIBOR Loan for which such circumstances exist, and (iii) on the last day of the
then current Interest Period, the LIBOR Loan for which such circumstances exist
shall, unless then repaid in full, automatically Convert to a Base Rate Loan.


 


h.             Notwithstanding any other
provisions of the Credit Agreement, if, after the Restatement Date, any law, rule, regulation, treaty,
interpretation or directive (whether having the force of law or not) or any
change therein shall make it unlawful for any Lender to make or maintain LIBOR
Loans, then (i) the commitment and agreement to maintain LIBOR Loans as to such
Lender shall immediately be suspended, and (ii) unless required to be
terminated earlier, LIBOR Loans as to such 


 


56





















 


Lender,
if any, shall be Converted on the last day of the then current Interest Period
applicable thereto to Base Rate Loans. 
If it shall become lawful for such Lender to again maintain LIBOR Loans,
then Borrowers may once again as to such Lender request Conversions to the LIBO
Rate.  During any period of such
suspension, such Lender shall make Base Rate Loans.


 


i.              The Borrowers agree that upon
written notice by: (y) Agent Bank or (z) any Lender to the Borrowers (with a
copy of such notice concurrently delivered to Agent Bank) to the effect that a
promissory note or other evidence of indebtedness is required for such Lender
by a Governmental Authority, banking regulatory agency or regulatory audit in
order for such Lender to evidence (whether for the purposes of pledge,
enforcement or otherwise) the Borrowings owing to, or to be made by, such
Lender:


 


(i)            The Borrowers shall
promptly execute and deliver to each Lender a promissory note payable to the
order of each such Lender (each individually a “Replacement Note” and
collectively the “Replacement Notes”) in the form of the Revolving Credit Note
in the amount of each Lender’s respective Syndication Interest in the Credit
Facility;


 


(ii)           The Replacement
Notes shall, in the aggregate, fully replace the Revolving Credit Note and each
reference to the Revolving Credit Note in this Credit Agreement and each of the
Loan Documents shall be deemed to be a collective reference to the Replacement
Notes;


 


(iii)          Borrowings,
Interest Rate Options, Construction/Conversion Notices and all other provisions
for the disbursement of funds, setting of interest rates and collection of
repayments of interest and principal shall continue to be made by Agent Bank as
the administrative and collateral agent for the Lenders in the same manner and
to the same extent as provided in the Revolving Credit Note and this Credit
Agreement as fully applicable to each of the Replacement Notes;


 


(iv)          the Agent Bank, upon
the consent of Requisite Lenders, shall cause the Title Insurance Company to
issue, at the expense of Lenders, such endorsements to the Title Insurance Policies
as may be reasonably necessary to assure the aggregate obligation evidenced by
the Replacement Notes is secured by the Deed of Trust with the same coverage
and priority as the obligation evidenced by the Revolving Credit Note; and


 


57





















 


(v)           Concurrently with
the delivery of the Replacement Notes, Agent Bank shall return the original
Revolving Credit Note to Borrower marked as superseded and replaced by the
Replacement Notes.


 


Section 2.06.          Security
for the Credit Facility.  The
Security Documentation shall secure the due and punctual payment and
performance of the terms and provisions of this Credit Agreement, the Revolving
Credit Note and all of the other Loan Documents.  In furtherance of such security, the Security
Document Amendments shall be executed and delivered to Agent Bank, as of the Restatement Date, by the respective
parties to each of the Security Document Amendments and recorded and/or filed
as required by the Restatement
Closing Instructions.


 


Section 2.07.          Place
and Manner of Payment.


 


a.             All amounts payable by Borrowers to
the Lenders shall be made to Agent Bank on behalf of Lenders pursuant to the
terms of the Credit Agreement and the Notes and shall be made on a Banking
Business Day in lawful money of the United States of America and in immediately
available funds.  Other than in
connection with principal payments which may be required to decrease the Funded
Outstandings to an amount equal to or less than the Maximum Permitted Balance,
Borrowers shall not make repayments (“Principal Prepayments”) of the
outstanding balance of principal owing under the Revolving Credit Note more
frequently than three (3) such Principal Prepayments during each calendar
month.  Each such Principal Prepayment of
a Base Rate Loan shall be in a minimum amount of Five Hundred Thousand Dollars
($500,000.00) (or, if less, the outstanding principal amount of Base Rate
Loans) and in increments of One Hundred Thousand Dollars ($100,000.00) in
excess thereof.  Each such Principal
Prepayment of a LIBOR Loan shall be in a minimum amount of Five Million Dollars
($5,000,000.00) and in increments of One Million Dollars ($1,000,000.00) in
excess thereof; provided, that in no event shall any outstanding LIBOR Loan
have a principal balance of less then Five Million Dollars
($5,000,000.00).  Borrowers shall give
written notice to Agent Bank of each Principal Payment by 11:00 a.m. on a day
which is at least three (3) Banking Business Days prior to each Principal
Prepayment of all or any portion of a LIBOR Loan or one (1) Banking Business
Day prior to each Principal Prepayment of all or any portion of a Base Rate
Loan.


 


b.             All such amounts payable by
Borrowers shall be made to Agent Bank at its office located at Wells Fargo
Bank, Syndications Division, 201 Third Street, Eighth Floor, San
Francisco, California 94103, or at such other address as may be directed in
writing by Agent Bank from time to time. 
If such payment is received by Agent Bank prior to 11:00 a.m., Agent
Bank shall credit Borrowers with such payment on the day so received and shall
promptly disburse to the appropriate Lenders on the


 


58





















 


same
day the Pro Rata Share of payments relating to the Credit Facility, in
immediately available funds.  If such
payment is received by Agent Bank after 11:00 a.m., Agent Bank shall credit
Borrowers with such payment as of the next Banking Business Day and disburse to
the appropriate Lenders on the next Banking Business Day such Pro Rata Share of
such payment relating to the Credit Facility in immediately available
funds.  Any payment on the Credit
Facility made by Borrowers to Agent Bank pursuant to the terms of this Credit
Agreement or the Revolving Credit Note for the account of Lenders shall
constitute payment to the appropriate Lenders. 
If the Revolving Credit Note or any payment required to be made thereon
or hereunder, is or becomes due and payable on a day other than a Banking
Business Day, the due date thereof shall be extended to the next succeeding
Banking Business Day and interest thereon shall be payable at the then
applicable rate during such extension.


 


c.             Subject to Section 2.07(a),
the outstanding principal owing under the Credit Facility and the Revolving
Credit Note may be prepaid at any time in whole or in part without penalty;
provided, however, that any portion or portions of the unpaid principal balance
which is accruing interest at a LIBO Rate may only be prepaid or repaid on the
last day of the applicable Interest Period unless Borrowers give three (3) days
prior written notice to Agent Bank and additionally pay concurrently with such
prepayment or repayment such additional amount or amounts as will compensate
Lenders for any losses, costs or expenses which they may incur as a result of
such payment, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund or
maintain such LIBOR Loan (“Breakage Charges”). 
A certificate of a Lender as to amounts payable hereunder shall be
conclusive and binding on Borrowers for all purposes, absent manifest or
demonstrable error.  Any calculation
hereunder shall be made on the assumption that each Lender has funded or will
fund each LIBOR Loan in the London interbank market; provided that no
Lender shall have any obligation to actually fund any LIBOR Loan in such
manner.


 


d.             Unless the Agent Bank receives
notice from an Authorized Officer prior to the date on which any payment is due
to the Lenders that the Borrowers will not make such payment in full as and
when required, the Agent Bank may assume that the Borrowers have made such
payment in full to the Agent Bank on such date in immediately available funds
and the Agent Bank may (but shall not be so required), in reliance upon such
assumption, distribute to each Lender on such due date an amount equal to the
amount then due such Lender.  If and to
the extent the Borrowers have not made such payment in full to the Agent Bank,
each Lender shall repay to the Agent Bank on demand such amount distributed to
such Lender, together with interest thereon at the Federal Funds Rate for each
day from the date such amount is distributed to such Lender until the date
repaid.


 


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e.             If, other than as expressly
provided elsewhere herein, any Lender shall obtain any payment with respect to
the Credit Facility (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its Syndication Interest, such
Lender shall immediately (a) notify the Agent Bank of such fact, and
(b) purchase from the other Lenders such participations in the Credit
Facility as shall be necessary to cause such purchasing Lender to share the
excess payment with each of them in proportion to their respective Syndication
Interests; provided, however, that if all or any portion of such excess
payment is thereafter recovered from the purchasing Lender, such purchase shall
to that extent be rescinded and each other Lender shall repay to the purchasing
Lender the purchase price paid therefor, together with an amount equal to such
paying Lender’s ratable share (according to the proportion of (i) the
amount of such paying Lender’s required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid
or payable by the purchasing Lender in respect of the total amount so
recovered.  The Borrowers agree that any
Lender so purchasing a participation from another Lender may, to the fullest
extent permitted by law, exercise all its rights of payment with respect to
such participation as fully as if such Lender were the direct creditor of the
Borrowers in the amount of such participation. 
The Agent Bank will keep records (which shall be conclusive and binding
in the absence of manifest or demonstrable error) of each participation
purchased under this section and will in each case notify the Lenders following
any such purchases or repayments.


 


Section 2.08.          The Swingline
Facility.


 


a.             Subject to the conditions and upon
the terms hereinafter set forth and in accordance with the terms and provisions
of the Swingline Note, Exhibit P affixed hereto, on and after the Restatement Date, Swingline Lender agrees
to lend and advance Swingline Advances to Borrowers in the amounts and at the
times provided below.  Notwithstanding
anything herein contained to the contrary, however, Borrower shall not be
entitled to any Swingline Advances on and after the date which is ten (10)
calendar days prior to the Maturity Date.


 


b.             With respect to each proposed
Swingline Advance, an Authorized Officer shall give Swingline Lender written
notice in the form of the Notice of Swingline Advance (“Notice of Swingline
Advance”), a copy of which is marked “Exhibit Q”, affixed hereto and by
this reference incorporated herein and made a part hereof, to be received by
Swingline Lender no later than 12:00 noon on the date for each proposed
Swingline Advance specifying the requested amount to be funded or oral notice
to be received by Swingline Lender no later than 12:00 noon on such date, to be
followed by a duly completed and executed Notice of Swingline Advance no later
than 1:00 p.m. on the same date. 
Swingline Lender shall, on the date for each proposed Swingline Advance,
deposit into the Designated Deposit Account in lawful money of the United
States of America in immediately available funds such amounts as


 


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Borrowers
may request; provided, that: (i) after giving effect to such Swingline
Advance, the Swingline Outstandings shall not exceed Ten Million Dollars
($10,000,000.00), (ii) the amount requested does not exceed the Available
Borrowings, (iii) no Default or Event of Default has occurred and is
continuing, and (iv) the conditions precedent set forth in Sections 3.23
and 3.24 shall have been satisfied. 
Within the foregoing limitations, Borrowers may borrow, repay and
reborrow under the Swingline Facility.  Each Swingline Advance shall be in an integral
multiple of One Hundred Thousand Dollars ($100,000.00).  Promptly after receipt of each request for a
Swingline Advance, Swingline Lender shall obtain telephonic verification from
Agent Bank that, giving effect to such request, the amount of such request does
not exceed the then Available Borrowings (such verification to be promptly
confirmed in writing).  Unless notified
to the contrary by the Swingline Lender, each repayment of a Swingline Advance
shall be in an amount which is an integral multiple of One Hundred Thousand
Dollars ($100,000.00), together with the accrued interest thereon.  The Swingline Lender shall promptly notify
the Agent Bank of the Swingline Outstandings each time there is a change therein.


 


c.             Each Swingline Advance shall bear
interest at the Base Rate plus the Applicable Margin and shall be payable at
the times and in the manner set forth below and, in any event, on or before ten
(10) days prior to the Maturity Date. 
Unless otherwise paid, interest accrued on the unpaid balance of
Swingline Outstandings for the period commencing on the first calendar day and
ending on the last calendar day of each and every month shall be paid monthly
in arrears on or before the fifth (5th) day following receipt by Borrowers of
an invoice from Swingline Lender setting forth the amount of such accrued
interest.  In the event any Swingline
Advance is outstanding for ten (10) consecutive Banking Business Days or as of the
tenth (10th) day prior to the Maturity Date, then on the next Banking Business
Day (unless Borrowers have made other arrangements acceptable to the Swingline
Lender to pay the Swingline Outstanding in full or to continue such Swingline
Outstanding), Borrowers shall request a Borrowing under the Credit Facility in
an amount sufficient to pay the applicable Swingline Advance in full, together
with all interest accrued thereon.  Upon
receipt of the amount of the Borrowing from the Lenders, the Agent Bank shall
provide such amount to the Swingline Lender for repayment of the applicable
Swingline Advance and the balance of the Borrowing, if any, shall be deposited
in immediately available funds to the Designated Deposit Account.  In the event Borrowers fail to request a
Borrowing within the period specified above, Agent Bank shall, without notice
to the Borrowers and without regard to any other conditions precedent for the
making of Borrowings under the Credit Facility, including, without limitation
the remedies set forth in Section 7.02, promptly (but subject to the
notice periods for Borrowings set forth in Section 2.03) cause a Borrowing
to be made and funded by the Lenders under the Credit Facility in the amount
necessary to pay the applicable Swingline Advance in full, together with all interest
accrued thereon, to the extent of Available Borrowings, and the Borrowers shall


 


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be
deemed to have requested such Borrowing and consented to its being made as
provided for herein.


 


d.             Each Lender’s obligation to advance
Borrowings in the proportionate amount of its Syndication Interest in the
Credit Facility of any unreimbursed Swingline Outstandings pursuant hereto is
several, and not joint or joint and several. 
The failure of any Lender to perform its obligation to advance a
Borrowing in a proportionate amount of such Lender’s Syndication Interest of
any unreimbursed Swingline Outstandings shall neither relieve any other Lender
of its obligation hereunder to advance such Borrowing in the amount of such other
Lender’s proportionate Syndication Interest of such amount, nor relieve the
Lender which has failed to fund of its obligations to Borrowers hereunder.  The Borrowers agree to accept the Borrowings
for payment of Swingline Outstandings as provided hereinabove, whether or not
such Borrowings could have been made pursuant to the terms of Article III B or
any other section of this Credit Agreement.


 


Section 2.09.          Fees.


 


a.             On the Restatement Date and on each other applicable date, Borrowers
shall pay the fees as required in the Fee Side Letter, each of such fees to be
retained by Agent Bank or distributed to Lenders as agreed between Agent Bank
and each Lender.


 


b.             Borrowers shall pay a quarterly
nonusage fee (the “Commitment Fee”) to the Agent Bank for the account of
Lenders based on the Leverage Ratio, calculated as of each Fiscal Quarter end
following the Restatement Date with
reference to the Borrower Consolidation, to determine the applicable Commitment
Percentage determined as set forth in Table Two of the definition of Applicable
Margin.  As of the Restatement Date, the Commitment
Percentage shall be set in accordance with the Pricing Certificate delivered by
Borrowers to Agent Bank under the Existing Credit Agreement for the Fiscal
Quarter ended September 30, 2005.


 


The
Commitment Fee shall commence to accrue on the Restatement Date and shall be calculated as the product of
(i) the applicable Commitment Percentage multiplied by (ii) the daily
average of the Maximum Permitted Balance less the daily average of the Funded
Outstandings computed on the basis of a three hundred sixty (360) day year
based on the number of actual days elapsed. 
Each Commitment Fee shall be payable in arrears on a quarterly basis on
or before the fifth (5th) day following receipt by Borrowers of an
invoice from Agent Bank setting forth the amount of such Commitment Fee for
each applicable Fiscal Quarter, and upon Bank Facility Termination.  Each Commitment Fee shall be promptly
distributed by Agent Bank to Lenders in proportion to their respective
Syndication Interests in the Credit Facility, as in effect from time to time
during each applicable Fiscal Quarter.


 


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c.             Concurrently with the issuance
of each Letter of Credit, Borrowers shall pay an issuance fee to the L/C Issuer
(“L/C Fee”) in an amount equal to the Stated Amount of each such Letter of
Credit multiplied by the LIBO Rate Margin, as set forth in Table One of the
definition of Applicable Margin, applicable as of such date of issuance,
calculated on a per annum basis for the number of days elapsing from the
issuance date to the Stated Expiry Date of each such Letter of Credit, but in
no event shall the L/C Fee be less than Five Hundred Dollars ($500.00) for each
Letter of Credit.  Notwithstanding the
foregoing, however, the L/C Fee to be paid with respect to the PIDI License
Letter of Credit may be paid quarterly in advance in the following manner:


 


one-quarter (1/4) of the applicable LIBO Rate Margin times (x) the
Stated amount of the PIDI License Letter of Credit shall be paid on or before
the issuance date and one-quarter (1/4) of the applicable LIBO Rate Margin
times (x) the Stated Amount of the PIDI License Letter of Credit shall be paid
on each three (3) month anniversary of the issuance date until either the
PIDI License Letter of Credit is terminated or the Stated Expiry Date has
occurred.


 


From each L/C
Fee the greater of Five Hundred Dollars ($500.00) or one quarter of one percent
(.25%) of the Stated Amount of each such Letter of Credit, calculated on a per
annum basis as provided hereinabove, shall be retained by L/C Issuer for its
own account and the balance of each L/C Fee shall be promptly distributed by
Agent Bank to Lenders in proportion to their respective Syndication Interests
in the Credit Facility.  All L/C Fees
paid by Borrowers are nonrefundable and shall be deemed fully earned upon
issuance of the applicable Letter of Credit.


 


Section 2.10.          Late Charges and Default Rate.


 


a.             If any payment due under the
Revolving Credit Note is not paid within three (3) Banking Business Days
after receipt by Borrowers of written notice of such nonpayment from Agent
Bank, Borrowers promise to pay a late charge in the amount of three percent
(3%) of the amount of such delinquent payment and Agent Bank need not accept
any late payment made unless it is accompanied by such three percent (3%) late
payment charge.  Any late charge shall be
paid to Lenders in proportion to their respective Syndication Interests.


 


b.             In the event of the existence of
an Event of Default, commencing on the first (1st) Banking Business Day
following the receipt by Borrowers of written notice of the occurrence of such
Event of Default from Agent Bank, the total of the unpaid balance of the
principal and the then accrued and unpaid interest owing under the Revolving
Credit Note shall commence accruing interest at a rate equal to two percent
(2.0%) over the interest rate otherwise applicable to the Revolving Credit Note
(the “Default Rate”) until all Events of Default which may exist have been
cured, at


 


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which time the interest rate shall revert to
the rate of interest otherwise accruing pursuant to the terms of the Revolving
Credit Note.


 


c.             In the event of the occurrence
of an Event of Default, Borrowers agree to pay all reasonable costs of
collection, including the reasonable attorneys’ fees incurred by Agent Bank, in
addition to and at the time of the payment of such sum of money and/or the
performance of such acts as may be required to cure such Event of Default.  In the event legal action is commenced for
the collection of any sums owing hereunder or under the terms of the Revolving
Credit Note, the Borrowers agree that any judgment issued as a consequence of
such action against Borrowers shall bear interest at a rate equal to the
Default Rate until fully paid.


 


Section 2.11.          Net Payments.  All payments under this Credit Agreement, the
Revolving Credit Note and/or L/C Reimbursement Obligations shall be made
without set-off, counterclaim, recoupment or defense of any kind and in such
amounts as may be necessary in order that all such payments, after deduction or
withholding for or on account of any future taxes, levies, imposts, duties or
other charges of whatsoever nature imposed by the United States or any
Governmental Authority, other than franchise taxes or any tax on or measured by
the gross receipts or overall net income of any Lender pursuant to the income
tax laws of the United States or any State, or the jurisdiction where each
Lender’s principal office is located (collectively “Taxes”), shall not be less
than the amounts otherwise specified to be paid under this Credit Agreement and
the Revolving Credit Note.  A certificate
as to any additional amounts payable to the Lenders under this Section 2.10
submitted to the Borrowers by the Lenders shall show in reasonable detail an
accounting of the amount payable and the calculations used to determine in good
faith such amount and shall be conclusive absent manifest or demonstrable
error.  Any amounts payable by the
Borrowers under this Section 2.10 with respect to past payments shall be
due within ten (10) days following receipt by the Borrowers of such
certificate from the Lenders; any such amounts payable with respect to future
payments shall be due within ten (10) days after demand with such future
payments.  With respect to each deduction
or withholding for or on account of any Taxes, the Borrowers shall promptly
furnish to the Lenders such certificates, receipts and other documents as may
be required (in the reasonable judgment of the Lenders) to establish any tax
credit to which the Lenders may be entitled.


 


Section 2.12.          Increased Costs.  If after the date hereof the adoption of, or
any change in, any applicable law, rule or regulation (including without
limitation Regulation D of the Board of Governors of the Federal Reserve
System and any successor thereto), or any change in the interpretation or
administration thereof by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Lender with any future


 


64





















 


request or future directive (whether or not
having the force of law) of any such Governmental Authority, central bank or
comparable agency:


 


a.             Shall subject any Lender to any
tax, duty or other charge with respect to the Credit Facility and/or the
Revolving Credit Note or such Lender’s obligation to make any funding of the
Credit Facility, or shall change the basis of taxation of payments to such
Lender of the principal of, or interest on, the Credit Facility or any other
amounts due under the Revolving Credit Note in respect of the Credit Facility
or such Lender’s obligation to fund the Credit Facility (except for changes in
the rate of tax on the overall net income of such Lender imposed by the United
States or any Governmental Authority pursuant to the income tax laws of the
United States or any State, or the jurisdiction where each Lender’s principal
office is located); or


 


b.             With respect to the Credit
Facility or the obligation of the Lenders to advance Borrowings under the
Credit Facility shall impose, modify or deem applicable any reserve imposed by
the Board of Governors of the Federal Reserve System, special deposit,
capitalization, capital adequacy or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Lender; or


 


c.             Shall impose on any Lender any
other condition affecting the Credit Facility, the Revolving Credit Note or
such Lender’s obligation to advance Borrowings under the Credit Facility;


 


and the result
of any of the foregoing, as set forth in subsections (a), (b) or (c) is
to increase the cost to (or in the case of Regulation D or reserve
requirements referred to above or a successor thereto, to impose a cost on)
such Lender of making or maintaining the Credit Facility, or to reduce the
amount of any sum or rate of return received or receivable by such Lender under
the Revolving Credit Note, then within ten (10) days after demand by
such Lender (which demand shall be accompanied by a certificate setting forth
the basis of such demand), the Borrowers shall pay directly to such Lender such
additional amount or amounts as will compensate such Lender for such increased
cost (or in the case of Regulation D or reserve requirements referred to
above or a successor thereto, such costs which may be imposed upon such Lender)
or such reduction of any sum or rate of return received or receivable under the
Revolving Credit Note less the amount, if any, of the reduction of the Lenders’
tax liability to another taxing authority resulting from the payment of such
taxes.  A certificate as to any
additional amounts payable to any Lender under this Section 2.11 submitted
to the Borrowers by such Lender shall show in reasonable detail an accounting
of the amount payable and the calculations used to determine in good faith such
amount and shall be conclusive absent manifest or demonstrable error.


 


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Section 2.13.          Mitigation; Exculpation.


 


a.             Each Lender agrees that it will
promptly notify the Borrowers in writing upon its becoming aware that any
payments are to become due to it under this Credit Agreement pursuant to Section 2.11
or 2.12.  Each Lender further agrees that
it will use reasonable efforts not materially disadvantageous to it (in its
reasonable determination) in order to avoid or minimize, as the case may be,
the payment by the Borrowers of any additional amounts pursuant to Section 2.11
or 2.12.  Each Lender represents, to the
best of its knowledge, that as of the Restatement Date no such amounts are
payable to it.


 


b.             Borrowers shall not be liable to
any Lender for any payments under Section 2.11 or 2.12 arising to the
extent of such Lender’s gross negligence or wilful misconduct or breach of any
laws (other than as a result of Borrowers’ breach), or for amounts which were
incurred more than ninety (90) days prior to the date Borrowers are notified of
the incurrence of such amount.


 


Section 2.14.          Issuance of Letters of Credit.


 


a.             Any Authorized Officer of
Borrowers may from time to time request that a Standby Letter of Credit or
Commercial Letter of Credit be issued by delivering to L/C Issuer (with a
telecopy to the Agent Bank) on a Banking Business Day, at least five (5) Banking
Business Days prior to the date of such proposed issuance, an L/C Agreement in
L/C Issuer’s then standard form (consistent with the terms of the Credit
Agreement), completed to the satisfaction of L/C Issuer and such other
certificates as the L/C Issuer may reasonably request; provided, however, that
no Letter of Credit shall be issued (a) if any Default or Event of Default
has occurred and remains continuing, or (b) if after giving effect to the
issuance thereof, the aggregate Stated Amount of outstanding Letters of Credit
would exceed Fifty-Five Million Dollars ($55,000,000.00), or (c) the
Stated Amount of the requested Letter of Credit exceeds the Maximum
Availability.  Each Letter of Credit
shall be issued by the L/C Issuer on the Banking Business Day specified in the
Borrower’s application therefor.  Each
request for a Letter of Credit and each Letter of Credit shall be subject to
the Uniform Customs and Practice for Documentary Credits, International Chamber
of Commerce Publication New 1994 Revision No. 500, or any successor
publication then in effect.  Other than
the PIDI License Letter of Credit, each Standby Letter of Credit will be issued
for a term not greater than one (1) year and shall not include any
provision for automatic renewal if such Standby Letter of Credit is for an
amount inn excess of Two Million Dollars ($2,000,000.00).  The PIDI License Letter of Credit may be
issued for a term not greater than two (2) years and shall not include any
provision for automatic renewal.  Each
Commercial Letter of Credit will be issued for a term not greater than one
hundred eighty (180) calendar days.  In
no event shall any Letter of Credit have a Stated Expiry Date later than thirty
(30) days prior to the Maturity Date. 
Promptly after receipt of each request for the issuance of a Letter of
Credit and


 


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immediately prior to the issuance thereof,
L/C Issuer shall obtain telephonic verification from Agent Bank that the amount
of such request does not exceed the then Available Borrowings.  The L/C Issuer shall promptly notify the
Agent Bank of the aggregate L/C Exposure of outstanding Letters of Credit each
time there is a change therein.


 


b.             Upon presentation of a draft
drawn under any Letter of Credit, L/C Issuer shall promptly notify the Agent
Bank and Borrowers of the amount under such draft and the date upon which such
draft is to be funded.  On or before two (2) Banking
Business Days following such notice (unless Borrowers have made other
arrangements acceptable to the L/C Issuer to pay the amount of such draft in
full), Borrowers shall advance to L/C Issuer the amount of such draft from
Borrowers’ available funds or shall request a Borrowing under the Credit
Facility in an amount sufficient to pay the amount of such draft in full.  The Agent Bank, upon receipt of such funds from
the Lenders, shall automatically provide such amount to the L/C Issuer for
payment of the amount of such draft and the balance of the Borrowing shall be
deposited in immediately available funds to the Designated Deposit Account.  In the event Borrowers fail to advance to L/C
Issuer the amount of such draft from Borrowers’ available funds or to request a
Borrowing within two (2) Banking Business Days from receipt of the notice
as specified above, on the third (3rd) Banking Business Day following Agent Bank’s
receipt of such notice, Agent Bank shall, without notice to or consent of the
Borrowers and without regard to any other conditions precedent for the making
of Borrowings under the Credit Facility, cause a Borrowing to be made and
funded by the Lenders under the Credit Facility and Lenders agree to fund their
respective Pro Rata Share of such Borrowing in the amount necessary to pay the
amount of such draft in full.  Upon the
occurrence of any Event of Default, L/C Issuer shall, without notice or further
authorization or consent of Borrowers whatsoever, be authorized to immediately
cause the Cash Collateral Account to be established and funded by Lenders with
a Borrowing advanced to Agent Bank equal to the aggregate amount of the L/C
Exposure then outstanding.  All amounts
held by L/C Issuer in the Cash Collateral Account shall be held as security for
the repayment of any L/C Reimbursement Obligation thereafter arising pursuant
to the terms of the L/C Agreement(s) and the Cash Collateral Pledge Agreement.  Borrowings advanced by Lenders to pay drafts
drawn upon or to secure repayment of the L/C Exposure under Letters of Credit
pursuant to this subsection shall: (i) constitute Borrowings under
the Credit Facility, (ii) initially be Base Rate Loans and (iii) be
subject to all of the provisions of this Credit Agreement concerning Borrowings
under the Credit Facility, except that such Borrowings shall be made upon
demand of the Agent Bank as set forth above rather than upon Notice of
Borrowing by Borrowers and shall be made, notwithstanding anything in this
Credit Agreement to the contrary, without regard to any other conditions
precedent to the making of Borrowings under the Credit Agreement and
notwithstanding any Default or Event of Default thereunder.  All amounts paid by L/C Issuer on a draft
drawn under any Letter of Credit which has not been funded or concurrently
reimbursed by Borrowers or through a Borrowing as provided hereinabove,


 


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shall bear interest at the Base Rate plus the
Applicable Margin per annum until repaid or reimbursed to L/C Issuer.


 


c.             Each Lender’s obligation to
advance Borrowings in the proportionate amount of its Syndication Interest in
the Credit Facility of any unreimbursed amounts outstanding under any Letter of
Credit pursuant hereto is several, and not joint or joint and several.  The failure of any Lender to perform its
obligation to advance a Borrowing in a proportionate amount of such Lender’s
Syndication Interest of any unreimbursed amounts outstanding under a Letter of
Credit will not relieve any other Lender of its obligation hereunder to advance
such Borrowing in the amount of such other Lender’s proportionate Syndication
Interest of such amount, nor relieve the Lender which has failed to fund of its
obligation to fund hereunder.  The
Borrowers agree to accept the Borrowings for payment of Letters of Credit as
provided hereinabove, whether or not such Borrowings could have been made pursuant
to the terms of Article III B or any other section of the Credit
Agreement.


 


d.             Letters of Credit shall be used
and issued for the benefit of Borrowers for the general corporate purposes of
Borrowers relating to the Hotel/Casino Facilities or any New Venture.


 


ARTICLE III


 


CONDITIONS PRECEDENT TO THE RESTATEMENT DATE


 


A.            Restatement Closing
Conditions.  The obligation of each
of the Banks to fund any Restatement Closing Disbursement under the Credit
Facility is subject to the following conditions precedent, each of which shall
be satisfied on or before December 28, 2005 (unless all of the Banks, in
their sole and absolute discretion, shall agree otherwise).  The occurrence of the Restatement Date is
subject to and contingent upon Agent Bank having received, in each case in form
and substance reasonably satisfactory to Agent Bank, or in the case of an
occurrence, action or event, the occurrence of, each of the following:


 


Section 3.01.          Credit Agreement.  Executed counterparts of this Credit
Agreement in sufficient duplicate originals for Borrowers and each of the
Banks.


 


Section 3.02.          The Notes.


 


a.             On or before the Restatement
Date, the Revolving Credit Note duly executed by the Borrowers in favor of
Agent Bank shall be delivered to Agent Bank.


 


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b.             On or before the Restatement
Date, the Swingline Note duly executed by the Borrowers in favor of Swingline
Lender shall be delivered to Swingline Lender.


 


Section 3.03.          Security Documentation.  The Security Document Amendments duly
executed by each of the applicable Borrowers or other parties thereto,
consisting of the following:


 


a.             First Amendment to MPI Deed of
Trust;


 


b.             First Amendment to SGLVI Deed of
Trust;


 


c.             First Amendment to SDI Mortgage;
and


 


d.             Trademark Security Agreement.


 


Section 3.04.          Other Loan Documents.  The following Loan Documents duly executed by
each of the applicable Borrowers and any other applicable party thereto,
consisting of the following shall be delivered or caused to be delivered to
Agent Bank on or before the Restatement Date:


 


a.             Environmental
Certificate.


 


Section 3.05.          Articles of Incorporation,
Bylaws, Corporate Resolutions, Certificates of Good Standing and Closing Certificate.  On or before the Restatement Date, Agent Bank
shall have received from each of the Borrowers: (i) a Certificate of Good
Standing issued by the Secretary of State of the applicable state of
incorporation and dated within thirty (30) Banking Business Days of the
Restatement Date, (ii) a copy of the articles of incorporation and by-laws
certified to be true and correct by a duly Authorized Officer of each
respective Borrower, (iii) an original Certificate of Corporate Resolution
and Certificate of Incumbency executed by the Secretary of each respective
Borrower and attested to by its President, Vice President, or Treasurer
authorizing Borrowers to enter into all documents and agreements to be executed
by it pursuant to this Credit Agreement and further authorizing and empowering
the officer or officers who will execute such documents and agreements with the
authority and power to execute such documents and agreements on behalf of each
respective Borrower, (iv) designation by corporate certificate (“Authorized
Officer Certificate”), substantially in the form of the Authorized Officer
Certificate marked “Exhibit F”, affixed hereto and by this reference
incorporated herein and made a part hereof, of the officers of each respective
Borrower who are authorized to give Notices of Borrowing, Continuation/
Conversion Notices, Pricing Certificates, Compliance Certificates and all other
notices, requests, reports, consents, certifications and authorizations on
behalf of each of the Borrowers and the Borrower Consolidation, each
individually an “Authorized Officer”


 


69





















 


and collectively the “Authorized Officers”,
and (v) an original Closing certificate (“Closing
Certificate”), substantially in the form of the Closing Certificate marked “Exhibit G”, affixed hereto and by
this reference incorporated herein and made a part hereof, duly executed by an
Authorized Officer of Borrowers.


 


Section 3.06.          Opinion of Counsel.  One or more opinions of counsel to the
Borrowers, dated as of the Restatement Date and addressed to the Agent Bank on
behalf of itself and each of the Banks, together with their respective
successors and assigns, substantially in the form of the legal opinion marked “Exhibit I”,
affixed hereto and by this reference incorporated herein and made a part
hereof.


 


Section 3.07.          Restatement Title Coverage.  As of the Closing Date, the Restatement Title Coverage (or proforma
commitment for the issuance thereof) consistent with the requirements of the
Restatement Closing Instructions.


 


Section 3.08.          Survey.  If required by Title Insurance Company as a
condition for the issuance of the MPI Title Endorsements, a current boundary
and location survey for the MPI Real Property, subject to exceptions approved
by Lenders prior to the Restatement Date, delivered to Agent Bank no less than
ten (10) Banking Business Days prior to the Restatement Date, which, if so
required, must (a) be certified to Agent Bank and the MPI Title Insurance
Company, (b) show the MPI Real Property to be free of encroachments,
overlaps, and other survey defects, (c) show the courses and distances of
the lot lines for the MPI Real Property, (d) show that all existing
improvements are located within said lot and building lines, and (e) show
the location  of all above and below
ground easements, improvements, appurtenances, utilities, rights-of-way, water
rights and ingress and egress, by reference to book and page numbers
and/or filed map reference.  On or before
the Restatement Date, Borrowers shall comply with all other survey requirements
of Title Insurance Companies for the issuance of the Title Insurance Policies
without reference to any exception of title based on any survey requirement.


 


Section 3.09.          Payment of Taxes.  Evidence satisfactory to Agent Bank that all
past and current real and personal property taxes and assessments which are
presently due and payable applicable to the Collateral Properties have been
paid in full.


 


Section 3.10.          Insurance.  Copies of declaration pages of each
insurance policy, certified to be true and correct in all respects by an
Authorized Officer of Borrowers, together with original binders evidencing
Borrowers as the named insured, and original certificates of insurance, loss
payee and mortgagee endorsements naming Agent Bank as mortgagee, loss payee and
additional insured as required by the insurance provisions set forth in Section 5.09
of this Credit Agreement.


 


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Section 3.11.          Payment of Fees.  Payment by Borrowers to Agent Bank of the
fees to the extent then due and payable on the Restatement Date as provided in Section 2.09(a) hereinabove.


 


Section 3.12.          Reimbursement for Expenses and
Fees.  Reimbursement by Borrowers for all reasonable
fees and out-of-pocket expenses incurred by Agent Bank in connection with the
Credit Facility, excluding, however, all Syndication Costs, but including, but
not limited to, escrow charges, title insurance premiums, environmental
examinations, recording fees, appraisal fees, reasonable attorney’s fees of
Henderson & Morgan, LLC and insurance consultant fees, and all other
like fees and expenses remaining unpaid as of the Restatement Date to the
extent then due and payable on the Restatement Date, provided that the amount
then invoiced shall not thereafter preclude Borrowers’ obligation to pay such
costs and expenses relating to the restatement of the Credit Facility following
the Restatement Date or to reimburse Agent Bank for the payment thereof.


 


Section 3.13.          Intentionally omitted.


 


Section 3.14.          Phase I Environmental Site
Assessments.


 


a.             A Phase I Environmental Site
Assessment or Assessments of the Collateral Properties prepared in conformance
with the scope and limitations of ASTM Standard Designation E1527-93 and
approved by Agent Bank.  The Phase I
Environmental Site Assessments delivered to Agent Bank in connection with the Existing
Credit Facility shall be deemed to satisfy this requirement.  Any recommended action shall have been
completed by Borrowers.


 


b.             Borrowers hereby confirm the
representations contained in Sections 2.1 and 2.2 of the Environmental
Certificate are true and correct in all respects, except with respect to the
matters disclosed on the Schedule of Significant Litigation.


 


Section 3.15.          Evidence of Right to Occupancy
of Collateral Properties.  A copy of the permanent certificate of
occupancy issued by each applicable Governmental Authority, evidencing the
right of the Borrower Consolidation to use and hold open for the use and
occupancy of the public of the Hotel/Casino Facilities.


 


Section 3.16.          Gaming Permits.  Copies of those Gaming Permits issued by each
applicable Gaming Authority evidencing the right of the Borrower Consolidation
to conduct pari-mutuel wagering on live horseracing and simulcast horse and
greyhound racing at the MPI Hotel/Casino Facilities and to conduct gaming
activities and games of chance at each of the Hotel/Casino Facilities.


 


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Section 3.17.          Financial Statements.  Audited financial statements of the Borrower
Consolidation for the most recently ended Fiscal Year, to the extent the same
have been prepared and are available.


 


Section 3.18.          Schedule of all Significant
Litigation.  A Schedule of Significant Litigation (Schedule 3.18)
involving any member of the Borrower Consolidation, in each instance setting
forth the names of the other parties thereto, a brief description of such
litigation, whether or not such litigation is covered by insurance and, if so,
whether the defense thereof and liability therefor has been accepted by the
applicable insurance company indicating whether such acceptance of such
defenses with or without a reservation of rights, the commencement date of such
litigation and the amount sought to be recovered by the adverse parties thereto
or the amount which is otherwise in controversy.


 


Section 3.19.          No Injunction or Other
Litigation.  No law or regulation shall prohibit, and no
order, judgment or decree of any Governmental Authority shall, and no
litigation shall be pending or threatened which in the reasonable judgment of
the Agent Bank would or would reasonably be expected to, enjoin, prohibit,
limit or restrain the execution and delivery of this Credit Agreement or the
making of any advance under the Credit Facility.


 


Section 3.20.          Additional Documents and
Statements.  As of the Restatement Date such additional
documents, affidavits, certificates and opinions as Requisite Lenders may
reasonably require to insure compliance with this Credit Agreement.  The statements set forth in Section 3.23
shall be true and correct.


 


Section 3.21.          Woodview Citizen Bank Loan
Documents and Green Shingle Loan Documents.


 


a.             A true and correct copy of the
Woodview Citizens Bank Loan Documents and of all amendments and modifications
thereto; and


 


b.             Each of the following with
respect to the Green Shingle Loan:


 


(i)            the
originals of each of the Green Shingle Note, Green Shingle Loan Agreement,
Green Shingle Security Documents and the original stock certificates of Tecnica
stock referenced in the Tecnica Stock Pledge (collectively, the “Green Shingle
Loan Documents”);


 


(ii)           Such
endorsements and assignments of the Green Shingle Loan Documents as are
reasonably required by Agent


 


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Bank and its attorneys to perfect a first position security interest in
the Green Shingle Loan Documents as additional collateral for the Credit
Facility.


 


Section 3.22.          Intentionally omitted.


 


B.            Conditions
Precedent to all Borrowings.  The
obligation of each Lender and Agent Bank to make any Borrowing requested to be
made on any Funding Date, except Borrowings made upon the demand of Agent Bank
for the purpose of funding repayment of Swingline Advances and/or L/C
Reimbursement Obligations, is subject to the occurrence of each of the
following conditions precedent as of such Funding Date:


 


Section 3.23.          Notice of Borrowing.  With respect to any Borrowing, the Agent Bank
shall have received in accordance with Section 2.03 on or before such
Funding Date an original and duly executed Notice of Borrowing or facsimile
copy thereof, to be promptly followed by an original.


 


Section 3.24.          Certain Statements.  On the Restatement Date and as of the Funding
Date the following statements shall be true and correct:


 


a.             The representations and
warranties with respect to the Borrowers contained in Article IV hereof
(other than representations and warranties which expressly speak only as of a
different date which shall be true and correct as of such date) are true and
correct on and as of the Funding Date and as of the Restatement Date in all
material respects as though made on and as of that date, except to the extent
that such representations and warranties are not true and correct as a result
of a change which is permitted by this Credit Agreement or by any other Loan
Document, or which is otherwise consented to by Requisite Lenders;


 


b.             The representations and
certifications contained in the Environmental Certificate are true and correct
in all material respects (other than representations and warranties which
expressly speak only as of a different date which shall be true and correct as
of such date);


 


c.             Since the date of the most
recent financial statements referred to in Section 3.17 and 5.08(b), no
Material Adverse Change shall have occurred; and


 


d.             No event has occurred or as a
result of any Borrowings contemplated hereby would occur and is continuing, or
would result from the making thereof, which constitutes a Default or Event of
Default hereunder.


 


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Section 3.25.          Gaming Permits.  The Borrower
Consolidation shall have all Gaming Permits material to or required for the
conduct of its gaming businesses and the conduct of games of chance at the MPI
Hotel/Casino Facilities and the SGLVI Hotel/Casino Facility and such Gaming
Permits shall not then be suspended, enjoined or prohibited (for any length of
time) by any Gaming Authority or any other Governmental Authority.


 


ARTICLE IV


 


REPRESENTATIONS
AND WARRANTIES


 


To induce Banks to enter into this Credit Agreement, Borrowers make the
following representations and warranties:


 


Section 4.01.          Organization; Power and
Authorization.  MTRI is a corporation duly organized and
validly existing under the laws of the State of Delaware.  SGLVI and SGFI are each a corporation duly
organized and validly existing under the laws of the State of Nevada.  MPI is a corporation duly organized and
validly existing under the laws of the State of West Virginia.  PIDI is a corporation duly organized and
validly existing under the laws of the Commonwealth of Pennsylvania.  SDI is a corporation duly organized and
validly existing under the laws of the State of Ohio.  Each Borrower (i) has all requisite
corporate power, authority and legal right to execute and deliver each
document, agreement or certificate to which it is a party or by which it is
bound in connection with the Credit Facility, to consummate the transactions
and perform its obligations hereunder and thereunder, and to own its properties
and assets and to carry on and conduct its business as presently conducted or
proposed to be conducted, and (ii) has taken all necessary corporate
action to authorize the execution, delivery and performance of this Credit
Agreement and the other Loan Documents to which it is a party or by which it is
bound and to consummate the transactions contemplated hereunder and thereunder.


 


Section 4.02.          No Conflict With, Violation of
or Default Under Laws or Other Agreements.  Neither the
execution and delivery of this Credit Agreement, the Revolving Credit Note or
any other Loan Document, or any other agreement, certificate or instrument to
which any Borrower is a party or by which it is bound in connection with the
Credit Facility, nor the consummation of the transactions contemplated
hereunder or thereunder, nor the compliance with or performance of the terms
and conditions herein or therein, is prevented by, limited by, conflicts in any
material respect with, or will result in a material breach or violation of, or
a material default (with due notice or lapse of time or both) under, or the
creation or imposition of any lien, charge, or encumbrance of any nature
whatsoever upon any of their respective property or assets by virtue of, the
terms, conditions or provisions of (a) any indenture, evidence of
indebtedness, loan or financing 
agreement, or other agreement or instrument of whatever nature to which
any


 


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Borrower is bound, or (b) any provision
of any existing law, rule, regulation, order, writ, injunction or decree of any
court or Governmental Authority to which Borrowers are subject.


 


Section 4.03.          Litigation.  Except as disclosed on the Schedule of
Significant Litigation delivered in connection with Section 3.18, to the
best knowledge of Borrowers, after due inquiry and investigation, there is no
action, suit, proceeding, inquiry, hearing or investigation pending or
threatened, in any court of law or in equity, or before any Governmental
Authority, which reasonably would be expected to (a) result in any
Material Adverse Change in the operation of the Hotel/Casino Facilities or in
its business, financial condition, properties or operations, (b) materially
adversely affect the Borrowers’ ability to perform their respective obligations
under the Credit Agreement and the other Loan Documents, or (c) materially
adversely affect the validity or enforceability of this Credit Agreement and
the other Loan Documents.  To the best
knowledge of Borrowers, after due inquiry and investigation, no Borrower is in
violation of or default with respect to any order, writ, injunction, decree or demand
of any Governmental Authority.


 


Section 4.04.          Agreements Legal, Binding, Valid
and Enforceable.  This Credit Agreement, the Revolving Credit
Note, the Security Documentation and all other Loan Documents, when executed
and delivered by Borrowers in connection with the Credit Facility will
constitute legal, valid and binding obligations of Borrowers, enforceable
against Borrowers in accordance with their respective terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium and other laws of
general application relating to or affecting the enforcement of creditors’
rights and the exercise of judicial discretion in accordance with general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).


 


Section 4.05.          Information and Financial Data
Accurate; Financial Statements; No Adverse Event.  To the best of Borrowers’ knowledge,
information and belief, all information and financial and other data previously
furnished in writing by Borrowers in connection with the Credit Facility was
true, correct and complete in all material respects as of the date furnished
(unless subsequently corrected prior to the date hereof), and there has been no
Material Adverse Change with respect thereto to the date of this Credit
Agreement since the dates thereof.  No
information has been omitted which would make the information previously
furnished in such financial statements to Banks misleading or incorrect in any material
respect to the date of this Credit Agreement. 
Any and all financial statements heretofore furnished to Banks by
Borrowers: (a) present fairly the financial position of Borrowers as of
their respective dates and the results of operations and changes in financial
position for the periods to which they apply, and (b) have been prepared
in conformity with GAAP applied on a consistent basis throughout the periods
involved.  Since the date of the
financial


 


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statements referred to in this Section 4.05,
there has been no Material Adverse Change in the financial condition, assets,
liabilities, business or operations of Borrowers.


 


Section 4.06.          Governmental Approvals.  All timely consents, approvals, orders or
authorizations of, or registrations, declarations, notices or filings with any
Governmental Authority which are required in connection with the valid
execution and delivery of this Credit Agreement and the other Loan Documents by
Borrowers and the carry-out or performance of any of the transactions required
or contemplated hereunder, or thereunder, by Borrowers, have been obtained or
accomplished and are in full force and effect, or can be obtained or
accomplished by Borrowers.  To the best
of Borrowers’ knowledge, all timely consents, approvals, orders or
authorizations of, or registrations, declarations, notices or filings with any
Governmental Authority which are required by Borrowers in connection with the
use and operation of the MPI Hotel/Casino Facilities and SGLVI Hotel/Casino
Facility have been obtained or accomplished and are in full force and effect.


 


Section 4.07.          Payment of Taxes.  To the best of Borrowers’ knowledge,
Borrowers have duly filed or caused to be filed all federal, state and local
tax reports and returns which are required to be filed by them and have paid or
made provisions for the payment of, all material taxes, assessments, fees and
other governmental charges which have or may have become due pursuant to said
returns or otherwise pursuant to any assessment received by Borrowers except
such taxes, assessments, fees or other governmental charges, if any, as are
being contested in good faith by Borrowers by appropriate proceedings and for
which Borrowers have maintained adequate reserves for the payment thereof in
accordance with GAAP.


 


Section 4.08.          Title
to Properties.  To the best of
Borrowers’ knowledge, Borrowers shall have good and marketable title to the
Collateral Properties as of the Restatement Date and at all times during the
term of the Credit Facility.  Each of the
Borrowers has good and marketable title to: 
(a) all of its properties and assets reflected in the most recent
financial statements referred to in Section 4.05 hereof as owned by them
(except those properties and assets disposed of since the date of said
financial statements in the ordinary course of business or those properties and
assets which are no longer used or useful in the conduct of its businesses),
including, but not limited to, Borrowers’ interest in patents, trademarks,
tradenames, servicemarks, and licenses relating to or pertaining to the
Collateral Properties or the Hotel/Casino Facilities, and (b) all
properties and assets acquired by them subsequent to the date of the most
recent financial statements referred to in Section 4.05 hereof.  All such properties and assets are not
subject to any liens, encumbrances or restrictions except Permitted
Encumbrances.  All roads, easements and
rights of way necessary for the full utilization of the Collateral Properties
have been completed and/or obtained.


 


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Section 4.09.          No Untrue Statements.  To the best of
Borrowers’ knowledge, all statements, representations and warranties made by
Borrowers in this Credit Agreement, any other Loan Document and any other
agreement, document, certificate or instrument previously furnished or to be
furnished by Borrowers to Banks pursuant to the provisions of this Credit
Agreement, at the time they were made and on and as of the Restatement Date: (a) are
and shall be true, correct and complete in all material respects, (b) do
not and shall not contain any untrue statement of a material fact, and (c) do
not and shall not omit to state a material fact, the absence of which makes the
information contained herein or therein materially misleading or
incomplete.  Borrowers understand that
all such statements, representations and warranties shall be deemed to have
been relied upon by Banks as a material inducement to establish the Credit
Facility.


 


Section 4.10.          Brokerage Commissions.  No person is entitled to receive any
brokerage commission, finder’s fee or similar fee or payment in connection with
the extensions of credit contemplated by this Credit Agreement.  No brokerage or other fee, commission or
compensation is to be paid by Banks with respect to the extensions of credit
contemplated hereby and Borrowers agree to indemnify Banks against any such
claims for brokerage fees or commissions and to pay all expenses including,
without limitation, reasonable attorney’s fees incurred by Banks in connection
with the defense of any action or proceeding brought to collect any such
brokerage fees or commissions.


 


Section 4.11.          No Defaults.  No Borrower has received any notice,
declaration or similar correspondence or communication, oral or written,
evidencing, declaring or claiming a violation of any applicable law and/or
regulations, the violation of which materially and adversely affects the
business, financial condition or operations of the Hotel/Casino Facilities.  Borrowers are not in violation or default
(nor is there any waiver in effect which, if not in effect, would result in a
violation or default) in any material and adverse respect under any indenture,
evidence of indebtedness, loan or financing agreement or other agreement or
instrument of whatever nature to which they are a party or by which they are
bound (except for any defaults previously brought to Lenders’ attention in
writing, for which Borrowers have received a waiver from Requisite Lenders), a
default under which would reasonably be expected to result in a Material
Adverse Change.


 


Section 4.12.          Employee Retirement Income
Security Act of 1974.  No Reportable Event has occurred and is
continuing with respect to any Pension Plan under ERISA, that gives rise to
liabilities that would constitute a Material Adverse Change.


 


Section 4.13.          Availability of Utility Services.  All utility services and facilities necessary
for the Hotel/Casino Facilities and the Collateral Properties


 


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including, without limitation, electrical,
water, gas and sewage services and facilities are available at the boundaries
of the Collateral Properties.


 


Section 4.14.          Policies of Insurance. 
Each of the copies of the declaration pages, original binders and
certificates of insurance evidencing the Policies of Insurance relating to the
Hotel/Casino Facilities delivered to Agent Bank by Borrowers (i) is a
true, correct and complete copy of the respective original thereof as in effect
on the date hereof, and no amendments or modifications of any of said documents
or instruments not included in such copies have been made, and (ii) has
not been terminated and is in full force and effect.  Borrowers are not in default in the
observance or performance of their respective obligations under said documents
and instruments, and Borrowers have done all things required to be done as of
the Restatement Date to keep unimpaired their respective rights thereunder.


 


Section 4.15.          Intentionally omitted.


 


Section 4.16.          Intentionally omitted.


 


Section 4.17.          Gaming Permits and Approvals.  All Gaming Permits required to be held by
Borrowers are current and in good standing and Borrowers presently hold all
Gaming Permits necessary for the continued operation of the Hotel/Casino
Facilities.


 


Section 4.18.          Environmental Certificate.  The representations and certifications
contained in the Environmental Certificate are true and correct in all material
respects.


 


Section 4.19.          Investment Company Act.  Each Borrower is neither an “investment
company” nor a company “controlled” by an “investment company,” within the
meaning of the Investment Company Act of 1940, as amended.


 


Section 4.20.          Public Utility Holding Company
Act.  Each Borrower is neither a “holding company,”
nor a “subsidiary company” of a “holding company,” nor an “affiliate” of a “holding
company” nor of a “subsidiary company” of a “holding company,” within the
meaning of the Public Utility Holding Company Act of 1935, as amended.


 


Section 4.21.          Labor Relations.  There is no strike or work stoppage in
existence, or to the best knowledge of Borrowers threatened, involving any
Borrower or the Hotel/Casino Facilities that reasonably would be expected to
result in a Material Adverse Change.


 


Section 4.22.          Trademarks, Patents, Licenses,
Franchises, Formulas and Copyrights.  Except as disclosed
in Schedule 4.22, affixed to the Existing Credit


 


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Agreement and by this reference incorporated
herein, each of the Borrowers owns all the patents, trademarks, permits,
service marks, trade names, copyrights, licenses, franchises and formulas, or
has a valid license or sublicense of rights with respect to the foregoing, and
has obtained assignments of all leases and other rights of whatever nature,
necessary for the present conduct of its respective businesses, without any
known conflict with the rights of others which, or the failure to obtain which,
as the case may be, could reasonably be expected to result in a Material
Adverse Change on the business, operations, property, assets or condition
(financial or otherwise) of Borrowers. 
Each of the patents, trademarks, servicemarks, tradenames and copyrights
owned by Borrowers under the common law or which is registered with any
Governmental Authority is set forth on Schedule 4.22, attached to the
Existing Credit Agreement.


 


Section 4.23.          Contingent Liabilities.  As of the Restatement Date, Borrowers have
incurred no material Contingent Liabilities (any Contingent Liability in excess
of One Million Dollars ($1,000,000.00) being deemed material) other than those
described on Schedule 4.23.


 


Section 4.24.          Subsidiaries.  As of the Restatement Date, no member of the
Borrower Consolidation has any Subsidiaries that are not members of the
Borrower Consolidation, other than those Subsidiaries existing as of the
Restatement Date which are described on the Schedule of Restricted and
Unrestricted Subsidiaries attached hereto as Schedule 4.24.


 


Section 4.25.          Woodview Citizens Bank Documents
and Green Shingle Loan Documents.


 


a.             The copies of the Woodview
Citizens Bank Documents which have been delivered to Agent Bank in accordance
with Section 3.21(a) are true and correct copies of the originals
thereof.


 


b.             The Green Shingle Loan Documents
which have been delivered to Agent Bank in accordance with Section 3.21(c) are
originals.


 


c.             The Woodview Citizens Bank
Documents and Green Shingle Loan Documents are all in full force and effect,
and none of them have been amended or otherwise modified except as set forth by
documents delivered to Agent Bank in accordance with Section 3.21.


 


Section 4.26.          Pledged Stock.  The stock certificates delivered to Agent
Bank in connection with the Stock Pledges represent one hundred percent (100%)
of all of the issued and outstanding stock of MPI, SGLVI, PIDI, SDI and SGFI.


 


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Section 4.27.          Senior Unsecured Indenture.  The copy of the Senior Unsecured Indenture
and all modifications and amendments thereto (if any) which have been delivered
to Agent Bank are a true, correct and complete copy of the respective original
thereof, as in effect on the Restatement Date, and no amendments or
modifications have been made to such Senior Unsecured Indenture, except as set
forth by documents delivered to Agent Bank or otherwise reasonably approved in
writing by Requisite Lenders.  The Senior
Unsecured Indenture, as amended, has not been terminated and is in full force
and effect.  The Borrower Consolidation
is not in default in the observance or performance of any of its material
obligations under the Senior Unsecured Indenture and has done all things
required to be done as of the Restatement Date to keep unimpaired its rights
thereunder.  The increase of the Credit
Facility to Eighty-Five Million Dollars ($85,000,000.00) and issuance of the
PIDI License Letter of Credit is permitted under the terms of the Senior
Unsecured Indenture.


 


ARTICLE V


 


GENERAL
COVENANTS OF BORROWERS


 


To induce the Banks to enter into this Credit Agreement, Borrowers covenant
to Banks as follows:


 


Section 5.01.          FF&E.  The Borrower Consolidation shall furnish,
fixture and equip the Hotel/Casino Facilities with FF&E it reasonably deems
appropriate for the operation of the Hotel/Casino Facilities.  All FF&E that is purchased and installed
in the Hotel/Casino Facilities shall be purchased free and clear of any liens,
encumbrances or claims, other than Permitted Encumbrances.


 


Section 5.02.          Permits; Licenses and Legal
Requirements.  Borrowers shall comply in all material respects
with and keep in full force and effect, as and when required, all Gaming
Permits and all material permits, licenses and approvals obtained from any
Governmental Authorities which are required for the operation and use of the
MPI Hotel/Casino Facilities, SGLVI Hotel/Casino Facility and SDI Facility.  Borrowers shall comply in all material
respects with all applicable material existing and future laws, rules,
regulations, orders, ordinances and requirements of all Governmental
Authorities, and with all recorded restrictions affecting the Collateral
Properties.


 


Section 5.03.          Protection Against Lien Claims.  Borrowers shall promptly pay and discharge or
cause to be paid and discharged all claims and liens for labor done and
materials and services supplied and furnished in connection with the
Hotel/Casino Facilities in accordance with this Section 5.03, except such
claims and liens, if any, as are being contested in good faith by Borrowers by
appropriate proceedings and for which Borrowers have maintained adequate
reserves for the payment thereof in accordance with GAAP.  If any mechanic’s lien or materialman’s lien


 


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shall be recorded, filed or suffered to exist
against the Collateral Properties or any of them or any interest therein by
reason of work, labor, services or materials supplied, furnished or claimed to
have been supplied and furnished in connection with the Hotel/Casino
Facilities, upon Borrowers receipt of written notice from Agent Bank demanding the
release and discharge of such lien, said lien or claim shall be paid, released
and discharged of record within ninety (90) days following its receipt of such
notice, or, in lieu of such payment Borrowers may (i) with respect to the
SGLVI Hotel/Casino Facility cause said mechanic’s lien or materialman’s lien to
be released of record pursuant to the provisions set forth in the Nevada
Revised Statutes 108.2413, et. seq., within one hundred twenty (120) days of
the date of such notice; and (ii) to the extent that any such mechanic’s
lien or materialman’s lien shall be recorded, filed or suffered to exist in the
State of West Virginia, Borrowers shall cause said mechanic’s lien to be
released of record pursuant to a bonding or similar statutory procedure under
the laws of the State of West Virginia, which statutory procedures shall be
reasonably acceptable to Agent Bank and accomplished within one hundred twenty
(120) days of the date of such notice.


 


Section 5.04.          Intentionally omitted.


 


Section 5.05.          No Change in Character of
Business or Location of Chief Executive Office.  At all times throughout the term of the
Credit Facility (a) the chief executive office of Borrowers shall be
located at State Route 2, South, P.O. Box 356, Chester, West Virginia
26034; provided, however, Borrowers shall be entitled to move their chief
executive office to another location upon no less than thirty (30) days prior
written notice to Agent Bank, (b) the Hotel/Casino Facilities shall be
operated by the Borrower Consolidation, and (c) Borrowers shall not effect
a material change in the nature and character of the business at the
Hotel/Casino Facilities as presently conducted and as presently contemplated
and disclosed to Banks.


 


Section 5.06.          Preservation and Maintenance of
Properties and Assets; Acquisition of Additional Property.


 


a.             At all times throughout the term
of the Credit Facility, (i) the Borrower Consolidation shall operate,
maintain and preserve all rights, privileges, franchises, licenses, Gaming
Permits and other properties and assets necessary to conduct its businesses and
the Hotel/Casino Facilities, in accordance with all applicable governmental
laws, ordinances, approvals, rules and regulations and requirements,
including, but not limited to, zoning, sanitary, pollution, building,
environmental and safety laws and ordinances, rules and regulations
promulgated thereunder, and (ii) Borrowers shall not consolidate with,
remove, demolish, materially alter, discontinue the use of, sell, transfer,
assign, hypothecate or otherwise dispose of to any Person, any part of its
properties and assets necessary for the continuance of its business, as
presently conducted and as presently contemplated, other than in the normal
course of


 


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business, alterations or modifications as are
reasonably expected to increase the value of the Collateral, or as otherwise
permitted pursuant to this Credit Agreement.


 


b.             Furthermore, in the event any
Borrower, or any Affiliate and/or Related Entity thereof, shall acquire any
other real property or rights to the use of real property which is: (i) adjacent
to any of the Collateral Properties and used in a material manner in connection
with the use and/or operation at the Collateral Properties, the Hotel/Casino
Facilities, or any of them, or (ii) if not so adjacent, necessary and
required for the use and operation of such Collateral Property, Hotel/Casino
Facilities, or any of them, Borrowers shall concurrently with the acquisition
of such real property or the rights to the use of such real property, execute
or cause the execution of such documents as may be necessary to add such real
property or rights to the use of real property as Collateral under the Bank
Facilities, together with each of the New Acquisition Certifications.


 


Section 5.07.          Repair of Properties and Assets.  At all times throughout the term of the
Credit Facility, Borrowers shall, at their own cost and expense, (a) maintain,
preserve and keep in a manner consistent with hotel and gaming casino operating
practices, as the case may be, applicable to hotel/casino operations operating
in the jurisdictions in which such properties are located, its assets and
properties, including, but not limited to, the Collateral Properties and all FF&E
owned or leased by Borrowers in good and substantial repair, working order and
condition, ordinary wear and tear excepted, (b) from time to time, make or
cause to be made, all necessary and proper repairs, replacements, renewals,
improvements and betterments thereto, and (c) from time to time, make such
substitutions, additions, modifications and improvements as may be necessary
and as shall not impair the structural integrity, operating efficiency and
economic value of said assets and properties. 
All alterations, replacements, renewals, or additions made pursuant to
this Section 5.07 shall become and constitute a part of said assets and
property and subject, inter alia, to the provisions of Section 5.01
and subject to the lien of the Loan Documents.


 


Section 5.08.          Financial Statements; Reports;
Certificates and Books and Records.  Until Credit
Facility Termination, Borrowers shall, unless the Agent Bank (with the written
approval of the Requisite Lenders) otherwise consents, at Borrowers’ sole
expense, deliver to the Agent Bank and each of the Lenders a full and complete
copy of each of the following and shall comply with each of the following
financial requirements:


 


a.             Monthly and Quarterly Financial
Reporting.


 


(i)            As
soon as practicable, and in any event within twenty (20) days after the end of
each calendar month (including the last calendar month of each Fiscal Year),
the consolidated and


 


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consolidating balance sheet, income statement, statement of cash flows,
statement of retained earnings and operating statement for the calendar month
under review and reflecting year-to-date performance of the Borrower
Consolidation and a comparison of the financial performance of the Borrower
Consolidation to the prior Fiscal Year’s operations and projected results from
operations at the Hotel/Casino Facilities (in each case reconciled with year
end audited statements and compared to budget and prior year period) of the
Borrower Consolidation all in reasonable detail.  Such financial statements shall be certified
by an Authorized Officer of the Borrower Consolidation as fairly presenting the
financial condition, results of operations and cash flows of the Borrower
Consolidation in accordance with GAAP (other than footnote disclosures) as at
such date and for such periods, subject only to normal year-end accruals and
audit adjustments;


 


(ii)           As
soon as practicable, and in any event within forty-five (45) days after the end
of each Fiscal Quarter (including the fourth Fiscal Quarter in any Fiscal
Year), the consolidated and consolidating balance sheet, income statement,
statement of cash flows, statement of retained earnings and operating statement
for the Fiscal Quarter under review and reflecting year-to-date performance of
the Borrower Consolidation and a comparison of the financial performance of the
Borrower Consolidation to the prior Fiscal Year’s operations and projected
results from operations at the Hotel/Casino Facilities (in each case reconciled
with year end audited statements and compared to budget and prior year period)
of the Borrower Consolidation all in reasonable detail.  Such financial statements shall be certified
by an Authorized Officer of the Borrower Consolidation as fairly presenting the
financial condition, results of operations and cash flows of the Borrower
Consolidation in accordance with GAAP (other than footnote disclosures) as at
such date and for such periods, subject only to normal year-end accruals and
audit adjustments;


 


b.             Pricing Certificate.  As soon as practicable, and in any event
within forty-five (45) days after the end of each Fiscal Quarter (including the
fourth (4th) Fiscal Quarter in any Fiscal Year), a pricing certificate in the
form marked “Exhibit E”, affixed to the Credit Agreement and by this
reference incorporated herein and made a part hereof (the “Pricing Certificate”)
setting forth a preliminary calculation of the Leverage Ratio as of the last
day of such Fiscal Quarter, and providing reasonable detail as to the
calculation thereof, which calculations shall be based on the preliminary


 


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unaudited financial statements of the
Borrower Consolidation for such Fiscal Quarter, and as soon as practicable
thereafter, in the event of any material variance in the actual calculation of
the Leverage Ratio from such preliminary calculation, a revised Pricing
Certificate setting forth the actual calculation thereof; provided, however,
that in the event that Borrowers do not deliver a Pricing Certificate when due,
then until (but only until) such Pricing Certificate is delivered as provided
herein, the Leverage Ratio shall be deemed, for the purpose of determining the
Applicable Margin, to be greater than 2.5 to 1.0 and the Applicable Margin determined
with respect thereto.


 


c.             Annual Financial Reporting.  As soon as practicable, and in any event
within ninety (90) days after the end of each Fiscal Year, (i) the
consolidated and consolidating balance sheet, income statement, statement of
retained earnings and cash flows (reconciled with year end audited statements)
of the Borrower Consolidation as at the end of such Fiscal Year, all in
reasonable detail.  Such financial
statements shall be prepared in accordance with GAAP and shall be accompanied
by a report of independent public accountants of recognized standing selected
by Borrowers and reasonably satisfactory to the Agent Bank (it being understood
that Ernst & Young, LLP or any “Big 5” accounting firm shall be
automatically deemed satisfactory to the Agent Bank), which report shall be
prepared in accordance with generally accepted auditing standards as at such
date, and shall not be subject to any qualifications or exceptions as to the
scope of the audit nor to any other qualification or exception determined by
the Requisite Lenders in their good faith business judgment to be adverse to
the interests of the Banks.  Such
accountants’ report shall be accompanied by a certificate stating that, in
making the examination pursuant to generally accepted auditing standards
necessary for the certification of such financial statements and such report,
such accountants have obtained no knowledge of any Default or, if, in the
opinion of such accountants, any such Default shall exist, stating the nature
and status of such Default, and stating that such accountants have reviewed the
Financial Covenants as at the end of such Fiscal Year (which shall accompany
such certificate) under Sections 6.01 through 6.07, have read such Sections
(including the definitions of all defined terms used therein) and that nothing
has come to the attention of such accountants in the course of such examination
that would cause them to believe that the same were not calculated by the
Borrower Consolidation in the manner prescribed by this Credit Agreement.  Such financial statements shall be certified
by an Authorized Officer of the Borrower Consolidation in the same manner as
required with respect to financial statements delivered pursuant to Section 5.08(a);


 


d.             Budgets and Projections.  As soon as practicable, and in any event no
later than fifteen (15) days following the commencement of each Fiscal Year, a
budget (including a Capital Expenditure budget) and projection by Fiscal
Quarter for that Fiscal Year and by Fiscal Year for the next four (4) succeeding
Fiscal Years, including for the first such Fiscal Year, projected
consolidated and consolidating balance sheets,


 


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statements of operations and statements of
cash flow and, for the second (2nd) and third (3rd) such Fiscal Years,
projected consolidated and consolidating condensed balance sheets and
statements of operations and cash flows, of the Borrower Consolidation, all in
reasonable detail.


 


e.             Compliance Certificate.  Concurrently with the financial statements
and reports required pursuant to Sections 5.08(a)(ii) and 5.08(c),
Compliance Certificate signed by an Authorized Officer;


 


f.              SEC Reporting.  Promptly after the same are available, copies
of each annual report, proxy or financial statement or other report or
communication that shall have been sent to the stockholders of MTRI, and copies
of all annual, regular, periodic and special reports (including, without
limitation, each 10Q and 10K report) and registration statements which MTRI
shall have filed or be required to file with the Securities and Exchange
Commission under Section 13 or 15(d) of the Securities Exchange Act
of 1934, as amended, and not otherwise required to be delivered to the Banks
pursuant to other provisions of this Section 5.08.


 


g.             Books and Records.  Until Credit Facility Termination, Borrowers,
and each of them, shall keep and maintain complete and accurate books and
records in accordance with GAAP, consistently applied.  Subject to compliance with all applicable
Gaming Laws and the Securities and Exchange Act of 1934, as amended, Borrowers,
and each of them, shall permit Banks and any authorized representatives of
Banks to have reasonable access to and to inspect, examine and make copies of
the books and records, any and all accounts, data and other documents of
Borrowers at all reasonable times upon the giving of reasonable notice of such
intent.  In addition:  (i) in the event of the occurrence of
any Default or Event of Default, or (ii) in the event any Material Adverse
Change occurs, Borrowers shall promptly, and in any event within three (3) days
after actual knowledge thereof, notify Agent Bank in writing of such
occurrence; and


 


h.             Construction Projects Reporting.  On or before thirty (30) days after the end
of each calendar month occurring subsequent to the Commencement of Construction
of any Construction Project and continuing until forty-five (45) days after
final completion of such Construction Project, Borrowers shall submit a written
report to Agent Bank and to Lenders’ Consultant reporting on the status of such
construction, including, without limitation, percentage of completion, line
item breakdown of amounts expended and amounts remaining to be expended to
completion and comparison to the approved construction budgets, including,
without limitation, any changes, variances and/or overages to the line items,
scope or total costs of such Construction Project.


 


i.              Other Information.  Until Credit Facility Termination, Borrowers,
and each of them, shall furnish to Agent Bank, with sufficient copies for


 


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distribution to each of the Banks, any
financial information or other information bearing on the financial status of
the Borrowers, or any of them, which is reasonably requested by Agent Bank or
Requisite Lenders.


 


Section 5.09.          Insurance.  Until Credit Facility Termination, Borrowers
shall obtain, or cause to be obtained, and shall maintain or cause to be
maintained with respect to the Collateral, at their own cost and expense, and
have deposited with Agent Bank the following coverages:


 


a.             Property Insurance.  Borrowers shall maintain a special causes of
loss (“All Risk” - ISO form or equivalent), perils policy covering the
buildings and improvements, and any other permanent structures for one hundred
percent (100%) of the replacement cost. 
Borrowers shall maintain a Ten Million Dollar ($10,000,000.00) limit of
coverage for the perils of flood and earthquake covering the Collateral.  Upon the request of Agent Bank, replacement
cost for insurance purposes will be established by an independent appraiser
mutually selected by Borrowers and Agent Bank. 
The policy will include Agreed Amount (waiving co-insurance),
replacement cost valuation and building ordinance endorsements.  The policy will include a standard mortgagee
clause (ISO form or equivalent, i.e. Borrower’s acts will not impair mortgagee’s
right to recover, exclusive payment of loss to mortgagee and automatic notice
of cancellation or non-renewal to mortgagee) and provide that all losses in
excess of Two Hundred Thousand Dollars ($200,000.00) be adjusted with the Agent
Bank.  The Borrowers waive any and all
rights of subrogation against Banks resulting from losses to property.


 


b.             Personal Property (including
machinery, equipment, furniture, fixtures, stock).  Borrowers shall maintain a special causes of
loss (“All Risk”) perils property coverage for all personal property owned,
leased or for which Borrowers are legally liable.  The coverage will include a lenders’ loss
payable endorsement in favor of Agent Bank.


 


The policy providing real property and personal property coverages, as
specified in 5.09(a) and (b) hereinabove, may include a deductible of
no more than Twenty-Five Thousand Dollars ($25,000.00) for any single
occurrence.  Flood and earthquake
deductibles can be no more than Two Hundred Fifty Thousand Dollars
($250,000.00), if a separate deductible applies.


 


c.             Business Interruption/Extra
Expense.  Borrowers shall maintain combined Business
Interruption/Extra Expense coverage for the Hotel/Casino Facilities with a
limit representing no less than eighty percent (80%) of the net profit plus
continuing expenses (including debt service) for the race track, hotel and
casino facilities (including all video lottery/slot operations).  Such coverage shall include an extensions for
off premises power losses at One Million Dollars ($1,000,000.00) and


 


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extended period of indemnity of one hundred
eighty (180) days endorsement.  These
coverages may have deductible of no greater than twenty-four (24) hours, or
Twenty-Five Thousand ($25,000.00), if a separate deductible applies.  This coverage will be specifically endorsed
to include Agent Bank as loss payee.


 


d.             Boiler and Machinery.  Borrowers shall maintain a Boiler and
Machinery policy for the Casino Facilities written on a Comprehensive Form with
a combined direct and indirect limit of no less than Ten Million Dollars
($10,000,000.00).  The policy shall
include extensions for Agreed Amount (waiving co-insurance) and Replacement
Cost Valuation.  The policy may contain
deductibles of no greater than Ten Thousand Dollars ($10,000.00) direct and
twenty-four (24) hours indirect.


 


e.             Crime Insurance.  Borrowers shall obtain a comprehensive crime
policy, including the following coverages:


 


(i)            employee
dishonesty - One Million Dollars ($1,000,000.00);


 


(ii)           money
and securities (inside) - Five Hundred Thousand Dollars ($500,000.00);


 


(iii)          money
and securities (outside) - Five Hundred Thousand Dollars ($500,000.00);


 


(iv)          depositor’s
forgery - One Million Dollars ($1,000,000.00);


 


(v)           computer
fraud - One Million Dollars ($1,000,000.00).


 


The policy must be amended so that money is defined to include “tokens and
chips” (as defined in Regulation 12.010 of the Nevada Gaming Authorities).  The policy may contain deductibles of no
greater than Twenty-Five Thousand Dollars ($25,000,000.00) for all coverages
listed above.


 


f.              Commercial General Liability
(1998 Form or Equivalent).  Borrowers shall
maintain a Commercial General Liability policy with a One Million Dollar
($1,000,000.00) combined single limit for bodily injury and property damage,
including Products Liability, Contractual Liability, and all standard policy
form extensions.  The policy must provide
a Two Million Dollar ($2,000,000.00) general aggregate (per location, if
multi-location risk) and be written on an “occurrence form”.  The policy will also include extensions for
Liquor Legal Liability, Employee Benefits Legal Liability, Innkeepers Legal and
Safe Deposit Legal coverages and Spectator Liability coverages (if necessary, a
separate policy can be secured for Spectator Liability).  If the general


 


87





















 


liability policy contains a self-insured
retention, it shall be no greater than Ten Thousand Dollars ($10,000.00) per
occurrence, with an aggregate retention of no more than Two Hundred Fifty
Thousand Dollars ($250,000.00), including expenses.


 


The policy shall be endorsed to include Agent Bank as an additional
insured on behalf of the Banks. 
Definition of additional insured shall include all officers, directors,
employees, agents and representatives of the additional insured.  The coverage for additional insured shall
apply on a primary basis irrespective of any other insurance whether
collectible or not (ISO Form #CG20261185 Additional Insured - Designated
Person or Organization, or Equivalent).


 


g.             Care, Custody and Control
Liability.  Borrowers shall maintain a care, custody and
control liability policy with a single limit of no less than One Hundred
Thousand Dollars ($100,000.00) (each horse)/One Million Dollars ($1,000,000.00)
(in the aggregate) per occurrence for any injury, damage or death to horses in
the care, custody and control of the Borrowers. 
The Agent Bank shall be included as an additional insured under such
policy.


 


h.             Automobile.  Borrowers shall maintain a comprehensive
Automobile Liability Insurance Policy written under coverage “symbol 1”,
providing a One Million Dollar ($1,000,000.00) combined single limit for bodily
injury and property damage covering all owned, non-owned and hired vehicles of
the Borrowers.  If the policy contains a
self insured retention it shall be no greater than Ten Thousand Dollars
($10,000.00) per occurrence with an aggregate retention of no more than Two
Hundred Fifty Thousand Dollars ($250,000.00), including expenses.  The following additional coverages must be
purchased by Borrowers:


 


(i)            Garage
Liability.  A One Million Dollar
($1,000,000.00) combined single limit for bodily and property damage for the
garage operation.


 


(ii)           Garagekeepers
Legal Liability.  Five Hundred
Thousand Dollar ($500,000.00) limit for comprehensive and collision coverages
for physical damage to vehicles in the Borrowers’ care, custody and
control.  The policy can be subject to a
deductible of no greater than Two Thousand Five Hundred Dollars ($2,500.00) for
each auto and Ten Thousand Dollars ($10,000.00) for each loss.


 


i.              Workers Compensation and
Employers Liability Insurance.  Borrowers shall maintain a standard workers
compensation policy covering the states of Nevada, West Virginia (as West
Virginia is a monopolistic state coverage must be secured through the state
fund) and any other state where the company is operating,


 


88





















 


including employers liability coverage
subject to a limit of no less than One Million Dollars ($1,000,000.00) each
employee, One Million Dollars ($1,000,000.00) each accident, One Million
Dollars ($1,000,000.00) policy limit. 
The policy shall include endorsements for Voluntary Compensation, Stop
Gap Liability, Long-Shoreman’s and Harbors Workmans Compensation Act and
Maritime Coverages (as applicable).  If
the Borrowers have elected to self-insure Workers Compensation coverage in the
State of Nevada (or any other state), the Agent Bank must be furnished with a
copy of the certificate from the state(s) permitting self-insurance and
evidence of a Stop Loss Excess Workers Compensation policy with a specific
retention of no greater than One Hundred Fifty Thousand Dollars ($150,000.00)
per occurrence.


 


j.              Retention.  If Borrowers’ general liability and
automobile policies include a self-insured retention, it is agreed and fully
understood that Borrowers are solely responsible for payment of all amounts due
within said self-insured retentions.  Any
Indemnification/Hold Harmless provision is extended to cover all liabilities
associated with said self-insured retentions.


 


k.             Umbrella Liability.  An Umbrella Liability policy shall be
purchased with a limit of not less than Fifty Million Dollars ($50,000,000.00)
providing excess coverage over all limits and coverages indicated in paragraphs
(f), (h) and (i) above.  The
limits can be obtained by a combination of Primary and Excess Umbrella
policies, provided that all layers follow form with the underlying policies
indicated in (f), (h) and (i) are written on an “occurrence”
form.  This policy shall be endorsed to
include the Agent Bank as an additional insured on behalf of the Banks, in the
same manner set forth in Section 5.09(f) hereinabove.


 


l.              Key Man Life Insurance.  The Borrower Consolidation shall maintain
key-man life insurance on the life of Arneault in an aggregate amount of no
less than Eight Million Dollars ($8,000,000.00).  Each such key man life insurance policy or
policies shall designate MTRI as the beneficiary thereof and shall provide that
written notice shall be given to Agent Bank no less than thirty (30) days prior
to any cancellation or termination thereof.


 


m.            Ratings.  Except as provided below, all policies
indicated above shall be written with insurance companies licensed and admitted
to do business in all states where the Borrower Consolidation, or any of them,
is operating and shall be rated no lower than “A XII” in the most recent
addition of A.M. Best’s and “AA-” in the most recent edition of Standard &
Poor’s, or such other carrier reasonably acceptable to Agent Bank.  All policies discussed above shall be
endorsed to provide that in the event of a cancellation, non-renewal or
material modification, Agent Bank shall receive thirty (30) days prior written
notice thereof.  The Borrowers shall
furnish Agent Bank with Certificates of Insurance executed by an authorized
agent evidencing compliance with all insurance provisions discussed above on an
annual basis.  The Borrowers shall also


 


89





















 


furnish actual policy endorsements evidencing
appropriate status of Agent Bank (as mortgagee, loss payee and additional
insured).  Certificates of Insurance
executed by an authorized agent of each carrier providing insurance evidencing
continuation of all coverages have been provided on the Restatement Date and
will be provided annually on or before ten (10) days prior to the
expiration of each policy.  All
certificates and other notices related to the insurance program shall be
delivered to Agent Bank concurrently with the delivery of such certificates or
notices to such carrier or to Borrowers, or any of them, as applicable.  Notwithstanding the foregoing, however, Agent
Bank, on behalf of the Lenders, consents to the following coverages with the
Standard and Poor’s ratings set forth below:


 


(i)            Excess
Liability with Great American at A-;


 


(ii)           Umbrella
with AIG (National Union Fire Insurance Co.) at AA+;


 


(iii)          General
Liability and Auto with American Specialty/Discover P&C at A+;


 


(iv)          Crime
with AIG (National Union Fire Insurance Co.) at AA+;


 


(v)           Property
Insurance with Allian, Global Risks U.S. Insurance Company at AA-, Affiliated
FM at BBBpi; Continental Casualty Company at A-, Liberty Mutual Fire Insurance
Company at A, Travelers Property Casualty Company at A+ and/or Zurich American
Insurance Company at A+.


 


n.             Other Coverage.  Any other insurance reasonably requested by
Agent Bank or Requisite Lenders in such amount and covering such risks as may
be reasonably required and customary in the race track hotel/casino industry in
the general location of the Hotel/Casino Facilities.  Approval of any insurance by Agent Bank shall
not be a representation of solvency of any insurer or sufficiency of any
coverage required under this Credit Agreement. 
All requirements are considered minimum in terms of the purchase and
maintenance of insurance under this Credit Agreement.


 


Section 5.10.          Taxes.  Throughout the term of the Credit Facility,
Borrowers shall prepare and timely file or cause to be prepared and timely
filed all federal, state and local tax returns required to be filed by it, and
Borrowers shall pay and discharge prior to delinquency all taxes, assessments
and other governmental charges or levies imposed upon it, or in respect of any
of any of its properties and assets except such taxes, assessments and other
governmental charges or levies, if any, as are being


 


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contested in good faith by Borrowers in the
manner which is set forth for such contests by Section 4.07 herein.


 


Section 5.11.          Permitted Encumbrances Only.  At all times throughout the term of the
Credit Facility, Borrowers shall not create, incur, assume or suffer to exist
any mortgage, deed of trust, pledge, lien, security interest, encumbrance,
attachment, levy, distraint, or other judicial process and burdens of every
kind and nature except the Permitted Encumbrances on or with respect to the
Collateral, except (a) with respect to matters described in
Sections 5.03 and 5.10 such items as are being contested in the manner described
therein, and (b) with respect to any other items, if any, as are being
contested in good faith by appropriate proceedings and for which Borrowers have
maintained adequate reserves for the payment thereof.


 


Section 5.12.          Advances.  At any time during the term of the Credit
Facility, if Borrowers should fail (a) to perform or observe, or (b) to
cause to be performed or observed, any covenant or obligation of Borrowers
under this Credit Agreement or any of the other Loan Documents, then Agent
Bank, upon the giving of reasonable notice may (but shall be under no
obligation to) take such steps as are necessary to remedy any such
non-performance or non-observance and provide for payment thereof.  All amounts advanced by Agent Bank or Lenders
pursuant to this Section 5.12 shall become an additional obligation of
Borrowers to Lenders secured by the Deeds of Trust and other Loan Documents,
shall constitute a Mandatory Commitment Reduction until repaid and shall become
due and payable by Borrowers on the next interest payment date, together with
interest thereon at a rate per annum equal to the Default Rate (such interest
to be calculated from the date of such advancement to the date of payment
thereof by Borrowers).


 


Section 5.13.          Further Assurances.  Borrowers will do, execute, acknowledge and
deliver, or cause to be done, executed, acknowledged and delivered, such
amendments or supplements hereto or to any of the Loan Documents and such
further documents, instruments and transfers as Requisite Lender or Agent Bank
may reasonably require for the curing of any defect in the execution or
acknowledgement hereof or in any of the Loan Documents, or in the description
of the Collateral Properties or other Collateral or for the proper evidencing
of giving notice of each lien or security interest securing repayment of the
Credit Facility.  Further, upon the
execution and delivery of the Deeds of Trust and each of the Loan Documents and
thereafter, from time to time, Borrowers shall cause the Deeds of Trust and
each of the Loan Documents and each amendment and supplement thereto to be
filed, registered and recorded and to be refiled, re-registered and re-recorded
in such manner and in such places as may be reasonably required by the
Requisite Lenders or Agent Bank, in order to publish notice of and fully
protect the liens of the Deeds of Trust and the Loan Documents and to protect
or continue to perfect the security interests created by the Deeds of Trust and
Loan Documents in the Collateral Properties and Collateral and to


 


91





















 


perform or cause to be performed from time to
time any other actions required by law and execute or cause to be executed any
and all instruments of further assurance that may be necessary for such
publication, perfection, continuation and protection.


 


Section 5.14.          Indemnification.  Borrowers agree to and do hereby jointly and
severally indemnify, protect, defend and save harmless Agent Bank and each of
the Banks and their respective trustees, officers, employees, agents, attorneys
and shareholders (individually an “Indemnified Party” and collectively the “Indemnified
Parties”) from and against any and all losses, damages, expenses or liabilities
of any kind or nature from any suits, claims, or demands, including reasonable
counsel fees incurred in investigating or defending such claim, suffered by any
of them and caused by, relating to, arising out of, resulting from, or in any
way connected with this Credit Agreement, with any other Loan Document or with
the transactions contemplated herein and thereby; provided, however, Borrowers
shall not be obligated to indemnify, protect, defend or save harmless an
Indemnified Party if, and to the extent, the loss, damage, expense or liability
was caused by (a) the gross negligence or intentional misconduct of such
Indemnified Party, or (b) the breach of this Credit Agreement or any other
Loan Document by such Indemnified Party or the breach of any laws, rules or
regulation by such Indemnified Party (other than those breaches of laws arising
from any Borrowers’ default).  In case
any action shall be brought against any Indemnified Party based upon any of the
above and in respect to which indemnity may be sought against Borrowers, Agent
Bank shall promptly notify Borrowers in writing, and Borrowers shall assume the
defense thereof, including the employment of counsel selected by Borrowers and
reasonably satisfactory to Indemnified Party, the payment of all costs and
expenses and the right to negotiate and consent to settlement upon the consent
of the Indemnified Party.  Upon
reasonable determination made by Indemnified Party that such counsel would have
a conflict representing such Indemnified Party and Borrowers, the applicable
Indemnified Party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof.  Borrowers shall not be liable for any
settlement of any such action effected without their consent, but if settled
with Borrowers’ consent, or if there be a final judgment for the claimant in
any such action, Borrowers agree to indemnify, defend and save harmless such
Indemnified Parties from and against any loss or liability by reason of such
settlement or judgment.  The provisions
of this Section 5.14 shall survive the termination of this Credit
Agreement and the repayment of the Credit Facility and the assignment or
subparticipation of all or any portion of the Syndication Interest held by any
Lender pursuant to Section 11.10.


 


Section 5.15.          Inspection of the Collateral and
Appraisal.  At all times during the term of the Credit
Facility and subject to compliance with all applicable Gaming Laws, Borrowers
shall provide or cause to be provided to Banks and any authorized
representatives of Banks, accompanied by representatives of Borrowers, the
reasonable right of entry and free access to the Collateral Properties to
inspect same on


 


92





















 


reasonable prior notice to Borrowers.  Provided, however, Lenders shall use
commercially reasonable efforts to avoid undue interference with Borrowers’
business operations.  If at any time any
Qualified Appraisal of the Collateral Properties, or any of them, is required
to be made by any banking regulatory authority or determined to be necessary by
Agent Bank or Requisite Lenders after the occurrence of an Event of Default,
Borrowers agree to pay all fees, costs and expenses incurred by Agent Bank in
connection with the preparation of such Qualified Appraisal.


 


Section 5.16.          Compliance With Other Loan
Documents.  Borrowers shall comply with each and every
term, condition and agreement contained in the Loan Documents including,
without limitation, the Environmental Certificate and all of the Security
Documentation.


 


Section 5.17.          Suits or Actions Affecting
Borrowers.  Throughout the term of the Credit Facility,
Borrowers shall promptly advise Agent Bank in writing within ten (10) days
after Borrowers obtain knowledge of (a) any claims, litigation,
proceedings or disputes (whether or not purportedly on behalf of Borrowers)
against, or to the actual knowledge of Borrowers, threatened or affecting
Borrowers which, if adversely determined, would result in a Material Adverse
Change in the Collateral Properties or the business, operations or financial
conditions of Borrowers, (b) any material labor controversy resulting in
or threatening to result in a strike against any of the Collateral Properties
or Hotel/Casino Facilities, or (c) any proposal by any Governmental
Authority to acquire any of the material assets or business of Borrowers.


 


Section 5.18.          Consents of and Notice to Gaming
Authorities.


 


a.             Borrowers shall make all
necessary applications to and procure all necessary consents and approvals of
the applicable Gaming Authorities to the: (i) pledge of the stock of MPI,
SGLVI, PIDI, Scioto Downs, Inc., an Ohio corporation and Speakeasy Gaming
of Fremont, Inc., a Nevada corporation, pursuant to the Stock Pledges, (ii) the
restrictions on transfer and hypothecation of the stock of MPI, SGLVI, PIDI,
Scioto Downs, Inc., an Ohio corporation and Speakeasy Gaming of Fremont, Inc.,
a Nevada corporation, contained in Sections 6.12(a) and 7.01(s), and (iii) the
terms set forth in the Credit Agreement and each of the Loan Documents, to the
extent which may be required by the West Virginia Gaming Authorities; and


 


b.             Borrowers shall comply in all
material respects with all applicable statutes, rules and regulations
requiring reports and disclosures to all applicable Gaming Authorities,
including, but not limited to, reporting this Credit Facility transaction, within
the time period required by Regulation 8.130(2) of the Regulations of
Nevada Gaming Commission and State Gaming Control Board and as may be required
by the West Virginia Gaming Authorities.


 


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Section 5.19.          Tradenames,
Trademarks and Servicemarks. 
Borrowers shall not assign or in any other manner alienate their
respective interests in any material tradenames, trademarks or servicemarks
relating or pertaining to the Hotel/Casino Facilities during the term of the
Credit Facility.  No Borrower shall
change its name without first giving at least thirty (30) days prior written
notice to Agent Bank.


 


Section 5.20.          Notice
of Hazardous Materials.  Within ten (10) days
after an executive officer of any of the Borrowers shall have obtained actual
knowledge thereof, Borrowers shall promptly advise Agent Bank and each of the
Lenders in writing of and deliver a copy of: (a) any and all enforcement,
clean-up, removal or other governmental or regulatory actions instituted or
threatened by any Governmental Agency pursuant to any applicable federal, state
or local laws, ordinances or regulations relating to any Hazardous Materials
(as defined in the Environmental Certificate) affecting the Collateral
Properties (“Hazardous Materials Laws”); (b) all written claims made or
threatened by any third party against Borrowers, the Collateral Properties, the
Hotel/Casino Facilities, or any of them, relating to damage, contribution, cost
recovery compensation, loss or injury resulting from any Hazardous Materials
(the matters set forth in clauses (a) and (b) above are hereinafter
referred to as “Hazardous Materials Claims”); and (c) the discovery of any
occurrence or condition on any real property adjoining or in the vicinity of
the Collateral Properties, the Hotel/Casino Facilities, or any of them, that
could cause any Borrower or any part thereof to be held liable under the
provisions of, or to be otherwise subject to any restrictions on the ownership,
occupancy, transferability or use of the Collateral Properties or the
Hotel/Casino Facilities under, any Hazardous Materials Laws.


 


Section 5.21.          Compliance
with Access Laws.


 


a.             Borrowers agree
that Borrowers, the Hotel/Casino Facilities and the Collateral Properties shall
at all times strictly comply with the requirements of the Americans with
Disabilities Act of 1990; the Fair Housing Amendments Act of 1988; and other
federal, state or local laws or ordinances related to disabled access; or any
statute, rule, regulation, ordinance, order of Governmental Authorities, or
order or decree of any court adopted or enacted with respect thereto, as now
existing or hereafter amended or adopted (collectively, the “Access Laws”), as
may be applicable to the respective Hotel/Casino Facilities.  At any time, Agent Bank may require a
certificate of compliance with the Access Laws and indemnification agreement in
a form reasonably acceptable to Agent Bank. 
Agent Bank may also require a certificate of compliance with the Access
Laws from an architect, engineer, or other third party acceptable to Agent
Bank.


 


b.             Notwithstanding any
provisions set forth herein or in any other document, Borrowers shall not alter
or permit any tenant or other person to alter the Hotel/Casino Facilities or
the Collateral Properties in any manner which would


 


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increase Borrowers’ responsibilities for
compliance with the Access Laws without the prior written approval of Agent
Bank.  In connection with such approval,
Agent Bank may require a certificate of compliance with the Access Laws from an
architect, engineer or other person acceptable to Agent Bank.


 


c.             Borrowers agree to
give prompt written notice to Agent Bank of the receipt by Borrowers of any
claims of violation of any of the Access Laws and of the commencement of any
proceedings or investigations which relate to compliance with any of the Access
Laws.


 


d.             Borrowers shall
indemnify, defend and hold harmless Indemnified Parties from and against any
and all claims, demands, damages, costs, expenses, losses, liabilities,
penalties, fines and other proceedings including, without limitation,
reasonable attorneys’ fees and expenses arising directly or indirectly from or
out of or in any way connected with any failure of the Hotel/Casino Facilities
or the Collateral Properties to comply with any of the Access Laws as the same
may have been applicable during the term of the Credit Facility.  The obligations and liabilities of Borrowers
under this section shall survive Credit Facility Termination, any
satisfaction, assignment, judicial or nonjudicial foreclosure proceeding, or
delivery of a deed in lieu of foreclosure.


 


Section 5.22.          Compliance
with and Restriction on Amendment of Woodview Citizens Bank Documents.  Until Credit Facility Termination, Borrowers
shall fully perform and comply with or cause to be performed and complied with
all of the respective material covenants, material terms and material
conditions imposed or assumed by them, or any of them, under each of the
Woodview Citizens Bank Documents. 
Borrowers shall not amend, modify or terminate, or enter into any
agreement to amend, modify or terminate any of the Woodview Citizens Bank
Documents without the prior written consent of Requisite Lenders.


 


Section 5.23.          Compliance
with and Restriction on Amendment of Green Shingle Loan Documents.  Until Credit Facility Termination, Borrowers
shall fully perform and comply with or cause to be performed and complied with
all of the respective material covenants, material terms and material
conditions imposed or assumed by them, or any of them, under each of the Green
Shingle Loan Documents.  Other than
extending the maturity date under the Green Shingle Loan Documents to December 31,
2006, Borrowers shall not amend, modify or terminate, or enter into any
agreement to amend, modify or terminate any of the Green Shingle Loan Documents
without the prior written consent of Requisite Lenders.


 


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Section 5.24.          Compliance
with and Restriction on Amendment of Senior Unsecured Indenture and Senior Unsecured
Notes.


 


a.             Until Credit
Facility Termination, Borrowers shall fully perform and comply and cause
compliance with all material agreements, covenants, terms and conditions imposed
upon, or assumed by, MTRI and its Subsidiaries under the Senior Unsecured
Indenture and Senior Unsecured Notes.


 


b.             No amendments or
modifications shall be made to, nor shall any agreement be made or entered or
entered into to amend or modify the Senior Unsecured Indenture or Senior
Unsecured Notes without the prior written consent of Agent Bank, or if in the
opinion of Agent Bank such amendment or modification is material or in any
manner adverse to the Borrower Consolidation, or any of them or the Lenders,
without the prior written consent of Requisite Lenders, which consent of Agent
Bank, or Requisite Lenders, as applicable, shall not be unreasonably withheld.


 


Section 5.25.          Prohibition
on Prepayment or Defeasance of Senior Unsecured Debt.  Notwithstanding anything contained in the
Credit Agreement to the contrary, no member of the Borrower Consolidation
shall, except with the prior written consent of the Requisite Lenders,
purchase, redeem, retire or otherwise acquire for value, or set apart any money
for a sinking, defeasance or other analogous fund for, the purchase,
redemption, retirement or other acquisition of, or make any voluntary payment
or prepayment of the principal of or interest on, or any other amount owing in
respect of, the Senior Unsecured Notes, except for (i) regularly scheduled
payments of interest in respect of such Senior Unsecured Notes required
pursuant to the instruments evidencing such Senior Unsecured Notes and the
Senior Unsecured Indenture, and (ii) the principal amount of any
Regulatory Redemption required by any Gaming Authority.


 


Section 5.26.          Key
Man Life Insurance.  In the event of
the death of Arneault prior to Credit Facility Termination, Borrowers shall
cause a Mandatory Commitment Reduction to be made to the Credit Facility in the
amount of Four Million Dollars ($4,000,000.00), which Mandatory Commitment
Reduction shall be made on or before the earlier to occur of (a) receipt
by MTRI of the proceeds of the key man life insurance required to be maintained
by the Borrower Consolidation under Section 5.09; or (b) one hundred
twenty (120) days following the death of Arneault.


 


Section 5.27.          Compliance
With Other Loan Documents, Execution of Subsidiary Guaranties and Pledge of
Restricted Subsidiary Stock.  Each
member of the Borrower Consolidation shall comply with each and every term,
condition and agreement contained in the Loan Documents to which they, or any
of them, are a party.  Borrowers shall
notify Agent Bank in writing on or before ten (10) days following the creation
thereof, of each Restricted Subsidiary and Unrestricted Subsidiary, together


 


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with a description of each New Venture owned
or to be acquired by such Restricted Subsidiary or Unrestricted Subsidiary.  Borrowers shall further cause each Restricted
Subsidiary created or otherwise occurring from time to time following the
Restatement Date to join in the execution of the Subsidiary Guaranty in favor
of Agent Bank and to deliver the original thereof, or a duly executed
Certificate of Joinder in the form attached to the Subsidiary Guaranty as Exhibit A,
to Agent Bank promptly, but in no event later than thirty (30) days following
the creation or other occurrence of such Restricted Subsidiary.  MTRI shall execute or cause to be executed a
Restricted Subsidiary Security Agreement no later than thirty (30) days
following the creation or other occurrence of each Restricted Subsidiary.  In the case of a Restricted Subsidiary which
is the holder of Gaming Permits, MTRI shall use its best efforts to cause all
necessary Governmental Authorities to consent to the delivery of the applicable
stock certificates, together with a stock power executed in blank, to Agent
Bank as soon as reasonably practical. 
MTRI shall deliver the applicable stock certificates to Agent Bank
promptly following receipt of such approval. 
In the case of a Restricted Subsidiary that is not the holder of any
Gaming Permits, the applicable stock certificates, together with a stock power
executed in blank, shall be delivered to Agent Bank concurrently with the
execution of the Restricted Subsidiary Security Agreement.  Banks do hereby acknowledge receipt of notice
of the creation of MTR Harness as a wholly owned Unrestricted Subsidiary of
MTRI.  Banks do hereby acknowledge
receipt of notice of the creation of JRI as a wholly owned Unrestricted
Subsidiary of MTRI holding a ninety percent (90.0%) equity interest in JTAL.


 


Section 5.28.          Requirements
for SDI.  The SDI Security Documents
shall constitute a first priority lien and security interest in all assets of
SDI, including, but not limited to the SDI Facility and all real and personal
property owned by SDI, except to the extent Borrowers elect to continue: (i) secured
financing in favor of National City Bank existing prior to the Scioto Merger
Effective Date, so long as the unpaid principal balance thereof is not
increased nor the terms of repayment thereof modified in any respect that would
increase the cost of such financing to the Borrower Consolidation, in which
case Agent Bank shall have a second lien and security interest as to the
Collateral securing repayment of such secured financing, and/or (ii) lease
financing obligations existing prior to the Scioto Merger Effective Date, in
which case Agent Bank shall have a second lien and security interest as to the
equipment or items so financed; and


 


Section 5.29.          Requirements
for Construction Projects.


 


a.             On or before thirty
(30) calendar days prior to the Commencement of Construction of each Construction
Project (and, with respect to the PIDI Construction Project, within ten (10) Banking
Business Days after the Restatement Date), Borrowers shall deliver to Agent
Bank with respect to such Construction Project each of the following items:


 


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(i)            a
full and detailed Expansion Capital Expenditure and line item construction
budget;


 


(ii)           a
full set of the current plans and specifications, together with all change
orders and revisions; and


 


(iii)          any
other construction documents and information related thereto reasonably
requested by Agent Bank.


 


b.             Lenders’ Consultant
shall, at all times during the construction of the applicable Construction
Project, have the right of reasonable entry and free access to such Construction
Project and the right to inspect all work done, labor performed and materials
furnished in connection with such Construction Project and the right to inspect
all work done, labor performed and materials furnished in connection with such
Construction Project and the right of reasonable inspection to inspect all draw
requests books, contracts and construction records which such Lenders’
Consultant reasonably deems necessary for the Construction Project
Reviews.  In performing such inspections,
Agent Bank and Lenders’ Consultant shall cooperate with Borrowers in making
suitable arrangements to minimize disruption of the construction work, and each
such inspection shall be conducted pursuant to applicable insurance, safety and
security requirements.


 


c.             Until completion of
the Construction Project Lenders’ Consultant shall submit to Agent Bank on or
before the thirtieth (30th) day following the end of each Fiscal
Quarter, a report on the Construction Project Reviews and the status of
construction as of the end of such Fiscal Quarter, together with any other
information, accounting or documents reasonably requested by Agent Bank or upon
the request of Requisite Lenders.


 


d.             Borrowers agree to
reimburse Agent Bank for the costs and expenses of the Lenders’ Consultant
within thirty (30) days of Borrowers’ receipt of a written invoice setting
forth the amount due.


 


Section 5.30.          Encumbrance
of PIDI Real Property and Compliant Additional Property. On or before January 31,
2006, Borrowers shall provide for all of the PIDI Real Property and Compliant
Additional Property to be encumbered as security for the Bank Facilities
pursuant to security documentation acceptable to Agent Bank (which encumbrance
shall include, without limitation, a blanket security interest on all personal
property of PIDI) subject only to the PIDI Permitted Encumbrances and the
Additional Property Permitted Encumbrances, respectively.


 


Section 5.31.          Noncompliant
Additional Property. On or before May 1, 2006, as to each Noncompliant
Additional Property, Borrowers shall either: (i) cause all


 


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environmental remediation required by Agent
Bank with respect to each such Noncompliant Additional Property to be completed
to Agent Bank’s approval; or (ii) agree to a Remediation Schedule for
such Noncompliant Additional Property and thereafter comply, in all material
respects, with the terms and conditions of such Remediation Schedule.  Upon completion of remediation activities for
any Noncompliant Additional Property pursuant to clause (i) or (ii) above,
Borrowers shall cause the applicable Noncompliant Additional Property to be
encumbered as security for the Bank Facilities, subject only to Additional
Property Permitted Encumbrances. 
Encumbrance of the Horseshoe Property in accordance herewith shall
include, without limitation, the granting of a blanket security interest in all
personal property of SGFI.


 


Section 5.32.          Additional
Property Title Insurance Coverage. 
In addition to any other title insurance coverage which may be required
hereunder, the lien and priority of any real property security interest granted
pursuant to Section 5.30 or Section 5.31 shall be insured by title
insurance coverage acceptable to Agent Bank (in each case an “Additional Property
Title Policy”).


 


ARTICLE VI


 


FINANCIAL
COVENANTS


 


Until payment in full of all sums owing hereunder and under the
Revolving Credit Note and the occurrence of Credit Facility Termination,
Borrowers agree, as set forth below, to comply or cause compliance with the
following Financial Covenants.


 


Section 6.01.          Leverage
Ratio.  Commencing as of the first
Fiscal Quarter ending subsequent to the Restatement Date and continuing as of
each Fiscal Quarter end until Credit Facility Termination, the Borrower Consolidation
shall maintain a Leverage Ratio no greater than the ratios described
hereinbelow to be calculated as of the end of each Fiscal Quarter in accordance
with the following schedule:


 


	
  Fiscal Quarter End

  	
   

  	
  Maximum Leverage Ratio

  
	
   

  	
   

  	
   

  
	
  As of the
  Restatement Date and as of each Fiscal Quarter end through Credit Facility
  Termination

  	
   

  	
  4.35 to 1.00

  



 


Section 6.02.          Adjusted
Fixed Charge Coverage Ratio. 
Commencing as of the first Fiscal Quarter ending subsequent to the
Restatement Date and continuing as of each Fiscal Quarter end until Credit
Facility Termination, the Borrower Consolidation shall maintain an Adjusted
Fixed Charge Coverage Ratio no less than (i) 1.75 to 1.00 during the
period commencing on the Restatement Date and continuing through


 


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December 31, 2005, and (ii) 2.00 to
1.00 during the period commencing on January 1, 2006 and continuing
through Credit Facility Termination.


 


Section 6.03.          Minimum
Tangible Net Worth.  The Borrower
Consolidation shall maintain as of the last day of each Fiscal Quarter a
Tangible Net Worth equal to or greater than the sum of (a) ninety percent
(90%) of the Tangible Net Worth of the Borrower Consolidation calculated as of September 30,
2003, plus (b) eighty-five percent (85.0%) of Net Income after taxes
realized by the Borrower Consolidation as of each Fiscal Quarter end occurring
on and after December 31, 2003, without deduction for any net losses, plus
(c) ninety percent (90.0%) of the Net Proceeds received by the Borrower
Consolidation from all Equity Offerings made subsequent to September 30,
2003.


 


Section 6.04.          Limitation
on Indebtedness.  The Borrower
Consolidation shall not owe or incur any Indebtedness, except as specifically
permitted hereinbelow:


 


a.             Funded Outstandings
under the Credit Facility;


 


b.             Interest Rate
Hedges up to the aggregate notional amount no greater than the Maximum
Permitted Balance as of any date of determination;


 


c.             Indebtedness owing
by Borrowers as of the Closing Date, including, without
limitation, the Senior Unsecured Notes up to the maximum aggregate principal
amount of One Hundred Thirty Million Dollars ($130,000,000.00);


 


d.             Secured purchase
money Indebtedness and Capital Lease Liabilities relating to FF&E used and
to be used in connection with the Hotel/Casino Facilities up to the maximum
aggregate principal amount of Thirty-Five Million Dollars ($35,000,000.00) at
any time outstanding;


 


e.             Unsecured trade
payable incurred in the ordinary course of business less than one hundred twenty
(120) days past due;


 


f.              Indebtedness
evidenced by (i) the Woodview Citizens Bank Documents, and (ii) the
secured financing in favor of National City Bank in the approximate amount of
Two Million Five Hundred Thousand Dollars ($2,500,000.00); and


 


g.             Indebtedness
incurred for the purpose of financing premiums on Directors’ and Officers’
Liability Insurance Coverage up to the aggregate amount of Five Hundred
Thousand Dollars ($500,000.00) at any time outstanding.


 


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Section 6.05.          Restriction
on Distributions.  No member of the
Borrower Consolidation shall make any Distributions, other than: (a) Distributions
to other members of the Borrower Consolidation, (b) Distributions made in
connection with Insider Cash Loans and Insider Non-Cash Loans, (c) Share
Repurchases to the extent permitted by Section 6.08(h), (d) Distributions
to MTR Harness up to the maximum cumulative aggregate amount of Ten Million
Dollars ($10,000,000.00), (e) Distributions to JRI up to the maximum
cumulative aggregate amount of Three Million Five Hundred Thousand Dollars
($3,500,000.00), and (f) Distributions to TRGI up to the maximum
cumulative aggregate amount of Two Million Dollars ($2,000,000.00).


 


Section 6.06.          Capital
Expenditure Requirements.


 


a.             During each Fiscal
Year, Borrowers shall make or cause to be made, Maintenance Capital
Expenditures to the Hotel/Casino Facilities in a minimum aggregate amount equal
to or greater (“Minimum Maintenance Cap Ex Requirement”) than two percent (2%)
of net revenues determined with reference to the net revenues derived from the
Hotel/Casino Facilities by the Borrower Consolidation during the immediately
preceding Fiscal Year, but in no event shall Maintenance Capital Expenditures
made during any Fiscal Year be greater than a maximum aggregate amount equal to
six percent (6%) of net revenues (“Maximum Maintenance Cap Ex Limit”) derived
from the Hotel/Casino Facilities by the Borrower Consolidation during the
immediately preceding Fiscal Year.


 


b.             In no event shall
the sum of (i) the cumulative aggregate of Expansion Capital Expenditures,
plus (ii) the cumulative aggregate amount of New Venture Investments
permitted under Section 6.08(i), exceed the amount of One Hundred
Twenty-Five Million Dollars ($125,000,000.00) in the aggregate at any time
prior to Credit Facility Termination.


 


Section 6.07.          Contingent
Liability(ies).  The Borrower
Consolidation shall not directly or indirectly incur any Contingent
Liability(ies) without the prior written consent of Requisite Lenders.  In no event shall any Contingent Liabilities
be secured by a Lien on any property or assets of any member of the Borrower
Consolidation.  No member of the Borrower
Consolidation shall be directly or indirectly liable for any Indebtedness,
contingent or otherwise, of JRI or JTAL, other than MTRI’s commitment to make
an Investment in JRI in an aggregate amount up to Three Million Five Hundred
Thousand Dollars ($3,500,000.00).


 


Section 6.08.          Investment
Restrictions.  Other than Investments
permitted hereinbelow or approved in writing by Requisite Lenders, the Borrower
Consolidation shall not make any Investments (whether by way of loan, stock
purchase, capital contribution, or otherwise) other than the following:


 


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a.             Cash, Cash
Equivalents and
direct obligations of the United States Government;


 


b.             Prime commercial
paper (AA rated or better);


 


c.             Certificates of
Deposit or Repurchase Agreement issued by a commercial bank having capital
surplus in excess of One Hundred Million Dollars ($100,000,000.00);


 


d.             Money market or
other funds of nationally recognized institutions investing solely in
obligations described in (a), (b) and (c) above;


 


e.             Insider Cash Loans
not exceeding One Million Five Hundred Thousand Dollars ($1,500,000.00) in the
aggregate during any Fiscal Year, provided that each of such Insider Cash Loans
shall bear interest at a rate no less than the Prime Rate plus one percent
(1.0%) per annum and shall in each instance be fully due and payable on or
before two (2) years from the date such Insider Cash Loan is advanced by
any member of the Borrower Consolidation;


 


f.              Insider Non-Cash
Loans to the extent permitted by Law;


 


g.             Capital
Expenditures to the extent permitted under Section 6.06;


 


h.             Share Repurchases
up to the maximum cumulative aggregate amount of Thirty Million Dollars
($30,000,000.00) during the period commencing on the Closing Date and ending at Credit Facility Termination;


 


i.              New Venture
Investments, exclusive of the acquisition of the Horseshoe Property as provided
in subparagraph k below, but including, without limitation, the Scioto Merger,
the exercise of the option to acquire the Green Shingle Property or any other
Acquisition made in connection with the SDI Facility, the PIDI Facility or any
New Venture, no greater than the cumulative maximum aggregate amount of Eighty
Million Dollars ($80,000,000.00) through Credit Facility Termination, so long
as (except with respect to the IP Site as provided in Subparagraph (n) below):


 


(i)            in
each instance the New Venture or assets acquired by such New Venture Investment
is concurrently pledged as additional Collateral securing the Bank Facilities;


 


(ii)           each
of the New Acquisition Certifications are made and delivered by Borrowers with
respect to any real property to be added as Collateral; and


 


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(iii)          no
Default or Event of Default shall have occurred and remains continuing;


 


j.              The Green Shingle
Loan up to the maximum amount of Two Million Six Hundred Thousand Dollars
($2,600,000.00), subject to compliance with the requirements of Section 3.21(c);


 


k.             Acquisition of the
Horseshoe Property pursuant to the terms of the HHLV Purchase Agreement;


 


l.              Investments made
in MTR Harness up to the maximum cumulative aggregate amount of Ten Million
Dollars ($10,000,000.00); and


 


m.            The IP Site has been
acquired pursuant to the terms of the IP Sale Agreement.  PIDI shall maintain the environmental
insurance coverage described in Paragraph 17(f) of the IP Sale
Agreement in an aggregate amount no less than Ten Million Dollars
($10,000,000.00) for a term no less than ten (10) years naming Agent Bank
as an additional  insured.  The Borrower Consolidation shall not expend
in excess of the cumulative aggregate amount of Six Million Dollars
($6,000,000.00) for the acquisition, remediation and development of the IP Site
without the prior written consent of Requisite Lenders.  In no event shall Borrowers permit any Lien
to be filed against or to encumber the IP Real Property, except in favor of
Agent Bank as provided in Section 5.31 hereinabove.


 


n.             Investments made in
JRI up to the maximum cumulative aggregate amount of Three Million Five Hundred
Thousand Dollars ($3,500,000.00) and Investments to TRGI up to the maximum
cumulative aggregate amount of Two Million Dollars ($2,000,000.00).


 


Section 6.09.          Total
Liens.  The Borrower Consolidation
shall not directly or indirectly, create, incur, assume or permit to exist any
Lien on or with respect to any of the Collateral, whether now owned or
hereafter acquired, or any income or profits therefrom, or file or permit the
filing of, or permit to remain in effect, any financing statement or other
similar notice of any Lien with respect to any of the Collateral under the
Uniform Commercial Code of any State or under any similar recording or notice
statute, except:


 


a.             Permitted
Encumbrances;


 


b.             Liens granted or
permitted pursuant to the Security Documentation;


 


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c.             Liens on the
FF&E and other goods securing Indebtedness to finance the purchase price
thereof; provided that (i) such Liens shall extend only to the
equipment and other goods so financed and the proceeds thereof, (ii) such
Liens shall not secure Indebtedness in excess of Thirty-Five Million Dollars
($35,000,000.00) in the aggregate at any time, and (iii) Agent Bank, upon
the written request of an Authorized Officer, shall confirm the priority of
such Liens as paramount to the Security Documentation to the extent such Liens
are permitted under this Section 6.9(c); and


 


d.             Liens creating a
security interest in the proceeds of the insurance policy or policies the
premiums for which are financed as permitted under Section 6.04(g).


 


Section 6.10.          No
Change of Control.  Until the
occurrence of Credit Facility Termination, no Change of Control shall occur.


 


Section 6.11.          Sale
of Assets, Consolidation, Merger, or Liquidation.  Other than as approved in writing by
Requisite Lenders, no member of the Borrower Consolidation shall wind up,
liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation (except a merger or consolidation with another entity within the
Borrower Consolidation), or convey, sell, lease or otherwise dispose of (or
make an agreement to do any of the foregoing at any time prior to Credit
Facility Termination) all or any material part of its respective property or
assets (except to another entity within the Borrower Consolidation), except
that the following shall be permitted:


 


a.             The Borrowers may
make sales of inventory and other assets in the ordinary course of business;


 


b.             So long as no
Default or Event of Default shall have occurred and remains continuing the
Borrowers may, in the ordinary course of business and subject to the provisions
of subsection (c) hereinbelow, sell FF&E and other items of
Collateral that are, in Borrowers’ prudent business judgment, obsolete or no
longer necessary for the Borrower Consolidation’s business objectives;


 


c.             If the Borrower
Consolidation should sell, transfer, convey or otherwise dispose (“Disposition”)
of any FF&E or other items of Collateral and, in the case of FF&E and
other items of Collateral which have been designated at the time of such
Disposition by written notice to Agent Bank for replacement (the “Designated
Replacement Assets”), not replace such Designated Replacement Assets with
purchased items of equivalent value and utility or with leased FF&E or
other items of Collateral of equivalent value and utility within the
permissible leasing and purchase agreement limitation set forth in Section 6.04(d) herein,
to the extent the sum of: (i) the Net Proceeds from the Disposition of
FF&E and other items of Collateral which are not Designated Replacement
Assets, plus (ii) the Net Proceeds from the Disposition of


 


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Designated Replacement Assets which are not
used to replace such Designated Replacement Assets during the consecutive
twelve (12) month period following the date of such Disposition, which twelve
(12) month period ends during the Fiscal Year under review, plus (iii) Cash
payments received for principal owing under any promissory notes or deferred
payment arrangements payable to the order of any member of the Borrower
Consolidation from the Disposition of Collateral during the current or any
prior Fiscal Year, exceeds the cumulative aggregate amount of One Million
Dollars ($1,000,000.00) during any single Fiscal Year (the “Excess Capital
Proceeds”), on or before March 1 of the immediately following Fiscal Year
Borrowers shall be required to permanently reduce the Maximum Permitted Balance
of the Credit Facility by a Mandatory Commitment Reduction in the amount of
such Excess Capital Proceeds, subject, however, to the right of Agent Bank to
verify to its reasonable satisfaction the amount of such Excess Capital
Proceeds;


 


d.             In the event a sale
of the SGLVI Collateral or other real property that is not an income producing
asset of the Borrower Consolidation results in a promissory note receivable
payable to the order of SGLVI or other member of the Borrower Consolidation for
a portion of the applicable purchase price, such note shall be permitted so
long as (1) the principal is not in excess of 75% of the applicable
purchase price, (2) the note is secured by a first priority lien and
security interest encumbering the SGLVI Collateral or other real property
Collateral so sold, and (3) the note and all such liens and security
interests are pledged, collaterally assigned to and a first priority security
interest perfected in favor of Agent Bank as additional Collateral for the Bank
Facilities.


 


e.             Notwithstanding
the foregoing, the Borrower Consolidation shall be permitted to contribute real
property Collateral to an Unrestricted Subsidiary and Agent Bank agrees and is
authorized to release such real property as Collateral so long as (i) such
real property is not an income producing asset of the Borrower Consolidation at
the time of such contribution and does not have a fair market value in excess
of $1,000,000, excepting the parcel of land located in Hancock County, West
Virginia consisting of approximately 255 acres, commonly known as the “Quarry
Property” which may be contributed to an Unrestricted Subsidiary without regard
to the $1,000,000 fair market value limitation, (ii) no member of the
Borrower Consolidation directly, indirectly or contingently becomes liable for
the debts, liabilities or obligations of such Unrestricted Subsidiary, and (iii) in
no event shall the Borrower Consolidation contribute or in any other manner
invest in excess of $1,000,000 (or in the case of the Quarry Property
$3,500,000) in the aggregate, in any Unrestricted Subsidiary without the prior
written consent of Lenders.


 


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Section 6.12.          No
Transfer of Ownership; Equity Offerings.


 


a.             MTRI shall not
transfer or hypothecate its ownership interests in MPI, SGLVI, PIDI, SDI or
SGFI except in connection with the Security Documentation.


 


b.             MTRI shall not make
any Equity Offering in excess of Ten Million Dollars ($10,000,000.00) without
the prior written consent of Requisite Lenders.


 


Section 6.13.          ERISA.  No Borrower shall:


 


a.             At any time, permit
any Pension Plan which is maintained by any Borrower or to which any Borrower
is obligated to contribute on behalf of its employees, in such case if to do so
would constitute a Material Adverse Change, to:


 


(i)            engage
in any non-exempt “prohibited transaction”, as such term is defined in Section 4975
of the Code;


 


(ii)           incur
any material “accumulated funding deficiency”, as that term is defined in Section 302
of ERISA; or


 


(iii)          suffer
a termination event to occur which may reasonably be expected to result in
liability of any Borrower to the Pension Plan or to the Pension Benefit
Guaranty Corporation or the imposition of a lien on the Collateral pursuant to Section 4068
of ERISA.


 


b.             Fail, upon any
Borrower becoming aware thereof, promptly to notify the Agent Bank of the
occurrence of any Reportable Event with respect to any Pension Plan or of any
non-exempt “prohibited transaction” (as defined in Section 4975 of the
Code) with respect to any Pension Plan which is maintained by any Borrower or
to which Borrowers are obligated to contribute on behalf of their employees or
any trust created thereunder which Reportable Event or prohibited transaction
would constitute a Material Adverse Change.


 


c.             At any time, permit
any Pension Plan which is maintained by any Borrower or to which any Borrower
is obligated to contribute on behalf of its employees to fail to comply with
ERISA or other applicable laws in any respect that would result in a Material
Adverse Change.


 


Section 6.14.          Margin
Regulations.  No part of the proceeds
of the Credit Facility will be used by Borrowers to purchase or carry any
Margin Stock or to extend credit to others for the purpose of purchasing or
carrying any Margin Stock.  Neither the
making of such loans, nor the use of the proceeds of such loans will violate or
be


 


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inconsistent with the provisions of
Regulations G, T, U or X of the Board of Governors of the Federal Reserve
System.


 


Section 6.15.          Transactions
with Affiliates.  No Borrower shall
engage in any transaction with any Affiliate of Borrowers which is not a member
of the Borrower Consolidation, other than arms length transactions for fair
market value, except to the extent more favorable to the Borrower
Consolidation.


 


Section 6.16.          Limitation
on Additional Subsidiaries.  Other than
RacelineBet, Inc., an Oregon corporation as an Unrestricted Subsidiary of
SDI, no Subsidiary of MTRI which is a member of the Borrower Consolidation
shall create any additional Subsidiaries without the prior written consent of
Requisite Lenders.


 


Section 6.17.          Limitation
on Consolidated Tax Liability.  No
member of the Borrower Consolidation shall be liable for federal income taxes
relating to the taxable income of any Subsidiary or Affiliate of MTRI which is
not a member of the Borrower Consolidation, or any of them, in excess of the
amount of federal income taxes it would pay if reporting as a separate entity,
unless such member of the Borrower Consolidation is fully reimbursed by such
Subsidiary or Affiliate of MTRI on or before the payment of such taxes.


 


Section 6.18.          Change
in Accounting Principles.  Except as
otherwise provided herein, if any changes in accounting principles from those
used in the preparation of the most recent financial statements delivered to
Agent Bank pursuant to the terms hereof are hereinafter required or permitted
by the rules, regulations, pronouncements and opinions of the Financial
Accounting Standards Board or the American Institute of Certified Public
Accountants (or successors thereto or agencies with similar functions) and are
adopted by the Borrowers with the agreement of their independent certified
public accountants and such changes result in a change in the method of
calculation of any of the financial covenants, standards or terms found herein,
the parties hereto agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such changes with the desired result that
the criteria for evaluating the financial condition of Borrowers shall be the
same after such changes as if such changes had not been made; provided,
however, that no change in GAAP that would affect the method of calculation of
any of the financial covenants, standards or terms shall be given effect in
such calculations until such provisions are amended, in a manner satisfactory
to Agent Bank and Requisite Lenders, to so reflect such change in accounting
principles.


 


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ARTICLE VII


 


EVENTS
OF DEFAULT


 


Section 7.01.          Events
of Default.  Any of the following
events and the passage of any applicable notice and cure periods shall
constitute an Event of Default hereunder:


 


a.             Any representation
or warranty made by Borrowers pursuant to or in connection with this Credit
Agreement, the Revolving Credit Note, the Environmental Certificate, or any
other Loan Document or in any report, certificate, financial statement or other
writing furnished by Borrowers in connection herewith, shall prove to be false,
incorrect or misleading in any materially adverse aspect as of the date when
made;


 


b.             Borrowers shall
have defaulted in the payment of any principal or interest on the Revolving
Credit Note or Swingline Note when due, and such default continues for a period
of more than five (5) days;


 


c.             Borrowers shall
have defaulted under the terms of any other obligation owing Agent Bank under
the terms of this Credit Agreement, which default continues beyond any
applicable grace period therein contained;


 


d.             Borrowers shall
have defaulted in the payment of any late charge, Nonusage Fees, expenses, indemnities
or any other amount owing under any Loan Document or under the Fee Side Letter
for a period of five (5) days after notice thereof to Borrowers from Agent
Bank;


 


e.             Borrowers or any
Restricted Subsidiary shall fail duly and punctually to perform or comply with:
(i) any term, covenant, condition or promise contained in
Sections 6.01, 6.02, 6.03, 6.04, 6.05, 6.06, 6.07, 6.08, 6.09, 6.10, or
6.12, or (ii) any other term, covenant, condition or promise contained in
this Credit Agreement, the Revolving Credit Note or Swingline Note, the Deeds
of Trust or any other Loan Document and, in the case of any term, covenant,
condition or promise covered by this clause (ii), such failure shall continue
thirty (30) days after written notice thereof is delivered to Borrowers by
Agent Bank or any Lender of such failure;


 


f.              Any of the
Security Documentation or any provision thereof: (i) shall cease to be in
full force and effect in any material respect and such cessation results in a
Material Adverse Change, or (ii) shall cease to give the Agent Bank in any
material respect the liens, rights, powers and privileges purported to be
created thereby, or (iii) the Borrowers or any Restricted Subsidiary shall
default in the due performance or observance of any term, covenant or agreement
on their part to be performed or observed pursuant to the Security
Documentation for a period of thirty (30) days after written notice thereof is
delivered to Borrowers by Agent Bank of such failure (or such shorter period
following such notice as may be specifically required in any Loan Document),
provided, however, that in the event the cure for such Event of Default


 


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reasonably requires more than thirty (30)
days, the cure period shall be extended for an additional period so long as
Borrowers diligently and promptly undertake such cure and in no event shall the
default remain uncured for a period in excess of ninety (90) days following
such written notice;


 


g.             Any Borrower or any
Restricted Subsidiary shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to it or its
debts under the Bankruptcy Code or any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official, for all or
substantially all of its property, or shall consent to any such relief or to
the appointment or taking possession by any such official in any involuntary
case or other proceeding against it;


 


h.             An involuntary case
or other proceeding shall be commenced against any Borrower or any Restricted
Subsidiary seeking liquidation, reorganization or other relief with respect to
itself or its debts under the Bankruptcy Code or any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official, for all or
substantially all of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of ninety (90)
days;


 


i.              Any Borrower or
any Restricted Subsidiary makes an assignment for the benefit of its creditors
or admits in writing its inability to pay its debts generally as they become
due;


 


j.              Borrowers default,
beyond any applicable grace period, under the terms of the Senior Unsecured
Indenture or Senior Unsecured Notes if the effect thereof is to permit the
acceleration or require prepayment, purchase or redemption thereof by the
holders thereof or Borrowers shall fail to make any payment when due (whether
by scheduled maturity, required prepayment, offer to purchase, redemption,
acceleration, demand or otherwise, in each case beyond the grace period
provided with respect to such Indebtedness) on the Indebtedness evidenced by
the Woodview Citizens Bank Documents or on any other Indebtedness, if the
aggregate amount of such Indebtedness is Two Million Five Hundred Thousand
Dollars ($2,500,000.00), or more, or any breach, default or event of default
shall occur, or any other event shall occur or condition shall exist, under any
instrument, agreement or indenture pertaining thereto if the effect thereof is
to accelerate, the maturity of any such Indebtedness; or any such Indebtedness
shall be declared to be due and payable or shall be required to be prepaid,
purchased or redeemed (other than by a regularly scheduled required prepayment)
prior to the stated maturity thereof, or the holder of any lien in any amount,
shall commence foreclosure of such lien upon property of Borrowers having a
value in excess of One Million Dollars ($1,000,000.00) and such foreclosure


 


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shall continue against such property to a
date less than thirty (30) days prior to the date of the proposed foreclosure
sale;


 


k.             The occurrence of
any event of default, beyond any applicable grace period, under the terms of
any agreement with any Lender in connection with a Secured Interest Rate Hedge
relating to the Credit Facility;


 


l.              Any Borrower or
any Restricted Subsidiary shall be voluntarily or involuntarily divested of
title or possession of any Collateral Property or shall lease or in any other
manner, voluntarily or involuntarily alienate any of its interest in any
Collateral Property or any portion of the Hotel/Casino Facilities, other than
the Permitted Encumbrances and as permitted in Section 6.11 or other than
within the Borrower Consolidation;


 


m.            The occurrence of
any Reportable Event with respect to a Pension Plan which Agent Bank determines
in good faith constitutes proper grounds for the termination of any Pension
Plan by the Pension Benefit Guaranty Corporation or for the appointment by an
appropriate United States District Court of a trustee to administer any such
plan that would result in a Material Adverse Change, should occur and should
continue for thirty (30) days after written notice of such determination shall
have been given to Borrowers by Agent Bank;


 


n.             Commencement
against any Borrower, any time after the execution of this Credit Agreement, of
any litigation which is not stayed, bonded, dismissed, terminated or disposed
of to the satisfaction of Agent Bank within ninety (90) days after its
commencement, and which (i) has a reasonable probability of success, and
could, if successful, in the reasonable opinion of Agent Bank, materially and
adversely affect the priority of the Liens granted Agent Bank by the Deeds of
Trust in the Collateral Properties, or (ii) results in the issuance of a
preliminary or permanent injunction which is not dissolved or stayed pending
appeal within sixty (60) days of its issuance and which preliminary or
permanent injunction materially adversely affects any Borrowers’ right to use
the Collateral Properties as the Hotel/Casino Facilities;


 


o.             The loss,
revocation, non-renewal or suspension, other than on account of forces majeure,
of any Borrower’s unrestricted Gaming Permits or the failure of any Borrower to
maintain gaming activities at the Hotel/Casino Facilities other than (i) on
account of forces majeure at least to the same general extent as is presently
conducted thereon for a period in excess of thirty (30) consecutive days, or (ii) loss
of the Gaming Permits applicable to the PIDI Facility so long as such loss
occurs prior to the Commencement of Construction of the PIDI Construction
Project and the PIDI License Letter of Credit is terminated;


 


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p.             Any money judgment,
writ or warrant of attachment or similar process involving (i) in any
individual case an amount in excess of One Million Dollars ($1,000,000.00) or (ii) in
the aggregate at any time an amount in excess of Two Million Dollars
($2,000,000.00) (in either case not adequately covered by insurance as to which
a solvent and unaffiliated insurance company has acknowledged coverage or
released, bonded or expunged as provided in Section 5.03) shall be entered
or filed against any Borrower or any Restricted Subsidiary or any of their
respective assets and shall remain undischarged, unvacated, unbonded or
unstayed for a period of sixty (60) days (or in any event later than five (5) days
prior to the date of any proposed sale thereunder);


 


q.             Any order, judgment
or decree shall be entered against any Borrower decreeing its involuntary
dissolution or split up and such order shall remain undischarged and unstayed
for a period in excess of thirty (30) days, or Borrowers shall otherwise
dissolve or cease to exist;


 


r.              The occurrence of
any Change of Control;


 


s.             MTRI sells,
transfers, assigns, hypothecates or otherwise alienates its interest in all or
any portion of the common voting stock of MPI, SGLVI, PIDI, SDI or SGFI, other
than in connection with the Stock Pledges;


 


t.              The occurrence of
any default under any Subsidiary Guaranty delivered to Agent Bank or the
revocation, termination or repudiation of such Subsidiary Guaranty by any
Subsidiary prior to Credit Facility Termination;


 


u.             The occurrence of
any Material Adverse Change; or


 


v.             Any Subsidiary Guaranty
shall cease to be in full force or effect in any material respect, or any
Subsidiary Guarantor shall deny or disaffirm such Subsidiary Guarantor’s
obligations under the Subsidiary Guaranty, or such Subsidiary Guarantor shall
default for a period of thirty (30) days after notice thereof from Agent Bank
in the due performance or observance of any term, covenant or agreement on its
part to be performed or observed pursuant to the Subsidiary Guaranty.


 


Section 7.02.          Default
Remedies.


 


a.             Upon the occurrence
and during the continuance of any Event of Default, Agent Bank may and, upon
the consent of Requisite Lenders shall: (i) declare all of the outstanding
unpaid Indebtedness hereunder and under the Notes and the other Loan Documents,
together with all accrued interest thereon, to be fully due and payable without
presentation, demand, protest or notice of any kind, and, in the event of such
declaration; (ii) shall terminate the obligation of Lenders to make any
advances for Borrowings; and (iii) shall terminate the obligation of the
Swingline Lender


 


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to make any advances under the Swingline
Facility; and (iv) shall terminate the obligation of the L/C Issuer to
issue Letters of Credit; and (v) shall direct the Borrowers to pay (and
each of the Borrowers hereby jointly and severally agree upon receipt of such
notice to pay) to the L/C Issuer an amount in Cash equal to the then
outstanding L/C Exposure, such Cash to be held by L/C Issuer in the Cash
Collateral Account as security for the repayment of all L/C Reimbursement
Obligations thereafter occurring; provided, that, the remedies set forth in
clauses (i) through (v) above will be deemed to have been
automatically exercised on the occurrence of any event set out in
Sections 7.01(g), (h) or (i);


 


b.             Additionally, while
any Event of Default has occurred and remains continuing, the Banks and/or
Agent Bank may (i) exercise any and all remedies available to Banks or
Agent Bank under the Loan Documents; and/or (ii) exercise any other
remedies available to Banks or Agent Bank at law or in equity, including
requesting the appointment of a receiver to perform any acts required of
Borrowers, or any of them, under this Credit Agreement;


 


c.             The Banks and/or
Agent Bank may exercise any other remedies available to Banks or Agent Bank at
law or in equity, including requesting the appointment of a receiver to perform
any acts required of Borrowers under this Credit Agreement, and Borrowers
hereby specifically consent to any such request by Banks.


 


For the purpose of carrying out this section and exercising these
rights, powers and privileges and subject to all applicable Gaming Laws,
Borrowers hereby irrevocably constitute and appoint Agent Bank as their true
and lawful attorney-in-fact to execute, acknowledge and deliver any instruments
and do and perform any acts such as are referred to in this paragraph in the
name and on behalf of Borrowers.  Agent
Bank on behalf of Lenders may exercise one or more of Lenders’ remedies simultaneously
and all its remedies are nonexclusive and cumulative.  Agent Bank and Lenders shall not be required
to pursue or exhaust any Collateral or remedy before pursuing any other
Collateral or remedy.  Agent Bank and
Lenders’ failure to exercise any remedy for a particular default shall not be
deemed a waiver of (i) such remedy, nor their rights to exercise any other
remedy for that default, nor (ii) their right to exercise that remedy for
any subsequent default.


 


Section 7.03.          Application
of Proceeds.  All payments and
proceeds received and all amounts held or realized from the sale or other
disposition of the Collateral Properties and/or Collateral, which are to be
applied hereunder towards satisfaction of Borrowers’ obligations under the
Credit Facility, shall be applied in the following order of priority:


 


a.             First, to the
payment of all reasonable fees, costs and expenses (including reasonable
attorney’s fees and expenses) incurred by Agent Bank


 


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and Banks, their agents or representatives in
connection with the realization upon any of the Collateral;


 


b.             Next, to the
payment in full of any other amounts due under this Credit Agreement, the
Security Documentation, or any other Loan Documents (other than the Notes and
any liability under the Secured Interest Rate Hedges);


 


c.             Next, to the
balance of interest remaining unpaid on the Notes;


 


d.             Next, to the
balance of principal remaining unpaid on the Revolving Credit Note;


 


e.             Next, to the
payment of any other amounts owing to Banks which is necessary to cause Credit
Facility Termination, including, without limitation, any amounts owing with
respect to the Secured Interest Rate Hedges; and


 


f.              Next, the balance,
if any, of such payments or proceeds to whomever may be legally entitled
thereto.


 


Section 7.04.          Notices.  In order to entitle Agent Bank and/or Banks
to exercise any remedy available hereunder, it shall not be necessary for Agent
Bank and/or Banks to give any notice, other than such notice as may be required
expressly herein or by applicable law.


 


Section 7.05.          Agreement
to Pay Attorney’s Fees and Expenses. 
Subject to the provisions of Section 10.14, upon the occurrence of
an Event of Default, as a result of which Agent Bank shall require and employ
attorneys or incur other expenses for the collection of payments due or to
become due or the enforcement or performance or observance of any obligation or
agreement on the part of Borrowers contained herein, Borrowers shall, on
demand, pay to Agent Bank the reasonable fees of such attorneys and such other
reasonable expenses so incurred by Agent Bank.


 


Section 7.06.          No
Additional Waiver Implied by One Waiver. 
In the event any agreement contained in this Credit Agreement should be
breached by either party and thereafter waived by the other party, such waiver
shall be limited to the particular breach so waived and shall not be deemed to
waive any other breach hereunder.


 


Section 7.07.          Licensing
of Agent Bank and Lenders.  In the
event of the occurrence of an Event of Default hereunder or under any of the
Loan Documents and it shall become necessary, or in the opinion of Requisite
Lenders advisable, for an agent, supervisor, receiver or other representative
of Agent Bank and Banks to become licensed under the provisions of the laws
and/or regulations of any Gaming Authority as


 


113





















 


a condition to receiving the benefit of any
Collateral encumbered by the Deeds of Trust or other Loan Documents for the
benefit of Lenders or otherwise to enforce their rights hereunder, Borrowers
hereby give their consent to the granting of such license or licenses and agree
to execute such further documents as may be required in connection with the
evidencing of such consent.


 


Section 7.08.          Exercise
of Rights Subject to Applicable Law. 
All rights, remedies and powers provided by this Article VII may be
exercised only to the extent that the exercise thereof does not violate any
applicable provision of the laws of any Governmental Authority and all of the
provisions of this Article VII are intended to be subject to all
applicable mandatory provisions of law that may be controlling and to be
limited to the extent necessary so that they will not render this Credit
Agreement invalid, unenforceable or not entitled to be recorded or filed under
the provisions of any applicable law.


 


Section 7.09.          Discontinuance
of Proceedings.  In case Agent Bank
and/or Banks shall have proceeded to enforce any right, power or remedy under
this Credit Agreement, the Notes, the Deeds of Trust or any other Loan Document
by foreclosure, entry or otherwise, and such proceedings shall have been
discontinued or abandoned for any reason or shall have been determined
adversely to Banks, then and in every such case Borrowers, Agent Bank and/or
Banks shall be restored to their former positions and rights hereunder with
respect to the Collateral, and all rights, remedies and powers of Agent Bank
and Banks shall continue as if such proceedings had not been taken, subject to
any binding rule by the applicable court or other tribunal in any such
proceeding.


 


ARTICLE VIII


 


DAMAGE,
DESTRUCTION AND CONDEMNATION


 


Section 8.01.          No
Abatement of Payments.  If all or any
part of the Collateral shall be materially damaged or destroyed, or if title to
or the temporary use of the whole or any part of any of the Collateral shall be
taken or condemned by a competent authority for any public use or purpose,
there shall be no abatement or reduction in the amounts payable by Borrowers
hereunder or under the Revolving Credit Note, and Borrowers shall continue to
be obligated to make such payments.


 


Section 8.02.          Distribution
of Capital Proceeds Upon Occurrence of Fire, Casualty, Other Perils or
Condemnation.  All Capital Proceeds
received from insurance policies under Section 5.09, including flood and
earthquake, covering any of the Collateral or from condemnation or similar
actions in regard to said Collateral, shall be paid directly to Agent
Bank.  In the event the amount of Capital
Proceeds paid to Agent Bank is equal to or less than One Million Dollars
($1,000,000.00), such Capital


 


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Proceeds shall be paid to Borrowers, unless a
Default in the payment of any principal or interest owing under the terms of
the Bank Facilities or an Event of Default (other than non-monetary Events of
Default occurring as a direct consequence of each casualty loss or
condemnation) shall have occurred hereunder and is continuing.  In the event the amount of Capital Proceeds
paid to Agent Bank is greater than One Million Dollars ($1,000,000.00), then,
unless a Default or Event of Default (other than non-monetary Events of Default
occurring as a direct consequence of each casualty loss or condemnation) has
occurred hereunder and is then continuing, the entire amount so collected or so
much thereof as may be required (any excess to be returned to Borrowers) to
repair or replace the destroyed or condemned property, shall, subject to the
conditions set forth below, be released to Borrowers for repair or replacement
of the property destroyed or condemned or to reimburse Borrowers for the costs
of such repair or replacement incurred prior to the date of such release.  If a Default or Event of Default has occurred
hereunder and is then continuing such amount may, at the option of Requisite
Lenders, be applied as a Mandatory Commitment Reduction.  In the event Banks are required to release
all or a portion of the collected funds to Borrowers for such repair or
replacement of the property destroyed or condemned, such release of funds shall
be made in accordance with the following terms and conditions:


 


a.             The repairs,
replacements and rebuilding shall be made in accordance with plans and
specifications approved by Requisite Lenders and in accordance with all
applicable laws, ordinances, rules, regulations and requirements of
Governmental Authorities;


 


b.             Borrowers shall
provide Agent Bank with a detailed estimate of the costs of such repairs or
restorations;


 


c.             Borrowers shall
satisfy the Requisite Lenders that after the reconstruction is completed, the
value of the Collateral, as determined by the Requisite Lenders in their
reasonable discretion, will not be less than the value of the Collateral
immediately prior to such destruction or condemnation as determined by the
Requisite Lenders pursuant to this Credit Agreement;


 


d.             In the Requisite
Lenders’ sole reasonable opinion, any undisbursed portion of the Available
Borrowings contemplated hereunder, after deposit of such insurance or
condemnation proceeds, is sufficient to pay all costs of reconstruction of the
Hotel/Casino Facility or other Collateral damaged, destroyed or condemned; or
if the undisbursed portion of such Credit Facility is not sufficient, Borrowers
shall deposit additional funds with the Agent Bank, sufficient to pay such
additional costs of reconstructing the Collateral;


 


e.             Borrowers have
delivered to the Agent Bank a construction contract for the work of
reconstruction in form and content, including insurance


 


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requirements, acceptable to the Requisite
Lenders with a contractor acceptable to the Requisite Lenders;


 


f.              The Requisite
Lenders in their reasonable discretion have determined that after the work of reconstruction
is completed, the Hotel/Casino Facilities will produce income sufficient to pay
all costs of operations and maintenance of the Hotel/Casino Facilities with a
reasonable reserve for repairs, and service all Indebtedness secured by the
Security Documentation;


 


g.             No Default in the
payment of any principal or interest owing under the terms of the Bank
Facilities, and no Event of Default has occurred and is continuing hereunder;


 


h.             Borrowers have
deposited with the Agent Bank that amount reasonably determined by the
Requisite Lenders (taking into consideration the amount of Borrowings available
and the amount of proceeds, if any, of insurance policies covering property
damage and business interruption, loss or rental income in connection with the
Hotel/Casino Facility or Collateral damaged, destroyed or condemned accruing
and immediately forthcoming to the Agent Bank) to be sufficient to service no
less than seventy-five percent (75.0%) of the Indebtedness secured hereby
during the period of reconstruction, as reasonably estimated by the Requisite
Lenders;


 


i.              Before commencing
any such work, Borrowers shall, at their own cost and expense, furnish Agent
Bank with appropriate endorsements, if needed, to the “All Risk” insurance
policy which Borrowers are then presently maintaining, and course of
construction insurance to cover all of the risks during the course of such
work;


 


j.              Such work shall be
commenced by Borrowers within one hundred twenty (120) days after (i) settlement
shall have been made with the insurance companies or condemnation proceeds
shall have been received, and (ii) all the necessary governmental
approvals shall have been obtained, and such work shall be completed within a
reasonable time, free and clear of all liens and encumbrances so as not to
interfere with the lien of the Deeds of Trust; and


 


k.             Disbursements of
such Capital Proceeds shall be made in the customary manner used by Agent Bank
for the disbursement of construction loans.


 


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ARTICLE IX


 


AGENCY
PROVISIONS


 


Section 9.01.          Appointment.


 


a.             Each Lender hereby (i) designates
and appoints WFB as the Agent Bank of such Lender under this Credit Agreement
and the Loan Documents, (ii) authorizes and directs Agent Bank to enter into
the Loan Documents other than this Credit Agreement for the benefit of Lenders,
and (iii) authorizes Agent Bank to take such action on its behalf under
the provisions of this Credit Agreement and the Loan Documents and to exercise
such powers as are set forth herein or therein, together with such other powers
as are reasonably incidental thereto, subject to the limitations referred to in
Sections 9.10(a) and 9.10(b).  Agent
Bank agrees to act as such on the express conditions contained in this Article IX.


 


b.             The provisions of
this Article IX are solely for the benefit of Agent Bank and Lenders, and
Borrowers shall not have any rights to rely on or enforce any of the provisions
hereof (other than as set forth in the provisions of Sections 9.03, 9.09
and 10.10), provided, however, that the foregoing shall in no way limit
Borrowers’ obligations under this Article IX.  In performing its functions and duties under
this Credit Agreement, Agent Bank shall act solely as Agent Bank of Lenders and
does not assume and shall not be deemed to have assumed any obligation toward
or relationship of agency or trust with or for Borrowers or any other Person.


 


Section 9.02.          Nature
of Duties.  Agent Bank shall not have
any duties or responsibilities except those expressly set forth in this Credit
Agreement or in the Loan Documents.  The
duties of Agent Bank shall be administrative in nature.  Subject to the provisions of Sections 9.05
and 9.07, Agent Bank shall administer the Credit Facility in the same manner as
it administers its own loans.  Promptly
following the effectiveness of this Credit Agreement, Agent Bank shall send to
each Lender a duplicate executed original, to the extent the same are available
in sufficient numbers, of the Credit Agreement and a copy of each other Loan
Document in favor of Lenders and a copy of the filed or recorded Security
Documentation, with the originals of the latter to be held and retained by
Agent Bank for the benefit of all Lenders. 
Agent Bank shall not have by reason of this Credit Agreement a fiduciary
relationship in respect of any Lender. 
Nothing in this Credit Agreement or any of the Loan Documents, expressed
or implied, is intended or shall be construed to impose upon Agent Bank any
obligation in respect of this Credit Agreement or any of the Loan Documents
except as expressly set forth herein or therein.  Each Lender shall make its own independent
investigation of the financial condition and affairs of the Borrowers and the
Collateral in connection with the making and the continuance of the Credit
Facility hereunder and shall make its own appraisal of the creditworthiness of
the Borrowers and the Collateral, and, except as specifically provided herein,
Agent Bank shall not have any duty or responsibility, either initially or on a
continuing basis, to provide any Lender with any credit or other information
with respect thereto, whether coming into its possession before the Closing Date or at any time or times
thereafter.


 


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Section 9.03.          Disbursement
of Borrowings.


 


a.             Not later than the
next Banking Business Day following receipt of a Notice of Borrowing, Agent
Bank shall notify each Lender of the proposed Borrowing and the Funding
Date.  Each Lender shall make available
to Agent Bank (or the funding bank or entity designated by Agent Bank), the
amount of such Lender’s Pro Rata Share of such Borrowing in immediately
available funds not later than the times designated in Section 9.03(b).  Unless Agent Bank shall have been notified by
any Lender not later than the close of business (San Francisco time) on the
Banking Business Day immediately preceding the Funding Date in respect of any
Borrowing that such Lender does not intend to make available to Agent Bank such
Lender’s Pro Rata Share of such Borrowing, Agent Bank may assume that such
Lender shall make such amount available to Agent Bank.  If any Lender does not notify Agent Bank of
its intention not to make available its Pro Rata Share of such Borrowing as
described above, but does not for any reason make available to Agent Bank such
Lender’s Pro Rata Share of such Borrowing, such Lender shall pay to Agent Bank
forthwith on demand such amount, together with interest thereon at the Federal
Funds Rate.  In any case where a Lender
does not for any reason make available to Agent Bank such Lender’s Pro Rata
Share of such Borrowing, Agent Bank, in its sole discretion, may, but shall not
be obligated to, fund to Borrowers such Lender’s Pro Rata Share of such
Borrowing.  If Agent Bank funds to Borrowers
such Lender’s Pro Rata Share of such Borrowing and if such Lender subsequently
pays to Agent Bank such corresponding amount, such amount so paid shall
constitute such Lender’s Pro Rata Share of such Borrowing.  Nothing in this Section 9.03(a) shall
alter the respective rights and obligations of the parties hereunder in respect
of a Defaulting Lender or a Non-Pro Rata Borrowing.


 


b.             Requests by Agent
Bank for funding by Lenders of Borrowings will be made by facsimile.  Each Lender shall make the amount of its Pro
Rata Share of such Borrowing available to Agent Bank in Dollars and in
immediately available funds, to such bank and account, in San Francisco,
California as Agent Bank may designate, not later than 11:00 a.m. (San
Francisco time) on the Funding Date designated in the Notice of Borrowing with
respect to such Borrowing, but in no event later than one (1) Banking
Business Day notice with respect to Base Rate Loans and two (2) Banking
Business Days notice with respect to LIBOR Loans, in each case following Lender’s
receipt of the applicable Notice of Borrowing.


 


c.             Nothing in this Section 9.03
shall be deemed to relieve any Lender of its obligation hereunder to make its
Pro Rata Share of Borrowings on any Funding Date, nor shall any Lender be responsible
for the failure of any other Lender to perform its obligations to advance its
Pro Rata Share of any Borrowing hereunder, and the Pro Rata Share of the
Aggregate Commitment of any Lender shall not be increased or decreased as a
result of the failure by any other Lender to perform its obligation to advance
its Pro Rata Share of any Borrowing.


 


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Section 9.04.          Distribution
and Apportionment of Payments.


 


a.             Subject to Section 9.04(b),
payments actually received by Agent Bank for the account of Lenders shall be
paid to them promptly after receipt thereof by Agent Bank, but in any event
within one (1) Banking Business Day, provided that Agent Bank shall pay to
Lenders interest thereon, at the Federal Funds Rate from the Banking Business
Day following receipt of such funds by Agent Bank until such funds are paid in
immediately available funds to Lenders. 
Subject to Section 9.04(b), all payments of principal and interest
in respect of Funded Outstandings, all payments of the fees described in this
Credit Agreement, and all payments in respect of any other Obligations shall be
allocated among such other Lenders as are entitled thereto, in proportion to
their respective Pro Rata Shares or otherwise as provided herein.  Agent Bank shall promptly distribute, but in
any event within one (1) Banking Business Day, to each Lender at its
primary address set forth on the appropriate signature page hereof or on
the applicable Assignment and Assumption Agreement, or at such other address as
a Lender may request in writing, such funds as it may be entitled to receive,
provided that Agent Bank shall in any event not be bound to inquire into or
determine the validity, scope or priority of any interest or entitlement of any
Lender and may suspend all payments and seek appropriate relief (including,
without limitation, instructions from Requisite Lenders or all Lenders, as
applicable, or an action in the nature of interpleader) in the event of any
doubt or dispute as to any apportionment or distribution contemplated
hereby.  The order of priority herein is
set forth solely to determine the rights and priorities of Lenders as among
themselves and may at any time or from time to time be changed by Lenders as
they may elect, in writing in accordance with Section 10.01, without
necessity of notice to or consent of or approval by Borrowers or any other
Person.  All payments or other sums
received by Agent Bank for the account of Lenders (including, without
limitation, principal and interest payments, the proceeds of any and all
insurance maintained with respect to any of the Collateral, and any and all
condemnation proceeds with respect to any of the Collateral) shall not
constitute property or assets of the Agent Bank and shall be held by Agent
Bank, solely in its capacity as administrative and collateral agent for itself
and the other Lenders, subject to the Loan Documents.


 


b.             Notwithstanding any
provision hereof to the contrary, until such time as a Defaulting Lender has
funded its Pro Rata Share of Borrowing which was previously a Non Pro Rata
Borrowing, or all other Lenders have received payment in full (whether by
repayment or prepayment) of the principal due in respect of such Non Pro Rata
Borrowing, all principal sums owing to such Defaulting Lender hereunder shall
be subordinated in right of payment to the prior payment in full of all
principal, in respect of all Non Pro Rata Borrowing in which the Defaulting
Lender has not funded its Pro Rata Share. 
This provision governs only the relationship among Agent Bank, each
Defaulting Lender, and the other Lenders; nothing hereunder shall limit the
obligation of


 


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Borrowers to repay all Borrowings in
accordance with the terms of this Credit Agreement.  The provisions of this section shall
apply and be effective regardless of whether an Event of Default occurs and is
then continuing, and notwithstanding (i) any other provision of this
Credit Agreement to the contrary, (ii) any instruction of Borrowers as to
their desired application of payments or (iii) the suspension of such
Defaulting Lender’s right to vote on matters which are subject to the consent
or approval of Requisite Lenders or all Lenders.  No Commitment Fee or L/C Fees shall accrue in
favor of, or be payable to, such Defaulting Lender from the date of any failure
to fund Borrowings or reimburse Agent Bank for any Liabilities and Costs as
herein provided until such failure has been cured, and Agent Bank shall be
entitled to (A) withhold or setoff, and to apply to the payment of the
defaulted amount and any related interest, any amounts to be paid to such
Defaulting Lender under this Credit Agreement, and (B) bring an action or
suit against such Defaulting Lender in a court of competent jurisdiction to
recover the defaulted amount and any related interest.  In addition, the Defaulting Lender shall
indemnify, defend and hold Agent Bank and each of the other Lenders harmless
from and against any and all Liabilities and Costs, plus interest thereon at
the Default Rate, which they may sustain or incur by reason of or as a direct
consequence of the Defaulting Lender’s failure or refusal to abide by its
obligations under this Credit Agreement.


 


Section 9.05.          Rights,
Exculpation, Etc.  Neither Agent
Bank, any Affiliate of Agent Bank, nor any of their respective officers,
directors, employees, agents, attorneys or consultants, shall be liable to any
Lender for any action taken or omitted by them hereunder or under any of the
Loan Documents, or in connection herewith or therewith, except that Agent Bank
shall be liable for its gross negligence or willful misconduct.  In the absence of gross negligence or willful
misconduct, Agent Bank shall not be liable for any apportionment or
distribution of payments made by it in good faith pursuant to Section 9.04,
and if any such apportionment or distribution is subsequently determined to
have been made in error the sole recourse of any Person to whom payment was
due, but not made, shall be to recover from the recipients of such payments any
payment in excess of the amount to which they are determined to have been
entitled.  Agent Bank shall not be
responsible to any Lender for any recitals, statements, representations or
warranties herein or for the execution, effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Credit Agreement, any of
the Security Documentation or any of the other Loan Documents, or any of the
transactions contemplated hereby and thereby; or for the financial condition of
the Borrowers or any of their Affiliates. 
Agent Bank shall not be required to make any inquiry concerning either
the performance or observance of any of the terms, provisions or conditions of
this Credit Agreement or any of the Loan Documents or the financial condition
of the Borrowers or any of their Affiliates, or the existence or possible
existence of any Default or Event of Default.


 


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Section 9.06.          Reliance.  Agent Bank shall be entitled to rely upon any
written notices, statements, certificates, orders or other documents,
telecopies or any telephone message believed by it in good faith to be genuine
and correct and to have been signed, sent or made by the proper Person, and with
respect to all matters pertaining to this Credit Agreement or any of the Loan
Documents and its duties hereunder or thereunder, upon advice of legal counsel
(including counsel for Borrowers), independent public accountant and other
experts selected by it.


 


Section 9.07.          Indemnification.  To the extent that Agent Bank is not
reimbursed and indemnified by Borrowers, Lenders will reimburse, within ten (10) Banking
Business Days after notice from Agent Bank, and indemnify and defend Agent Bank
for and against any and all Liabilities and Costs which may be imposed on,
incurred by, or asserted against it in any way relating to or arising out of
this Credit Agreement, the Security Documentation or any of the other Loan
Documents or any action taken or omitted by Agent Bank or under this Credit
Agreement, the Security Documentation or any of the other Loan Documents, in
proportion to each Lender’s Pro Rata Share; provided that no Lender shall be
liable for any portion of such Liabilities and Costs resulting from Agent Bank’s
gross negligence or willful misconduct. 
The obligations of Lenders under this Section 9.07 shall survive
the payment in full of all Obligations and the termination of this Credit
Agreement.  In the event that after
payment and distribution of any amount by Agent Bank to Lenders, any Lender or
third party, including Borrowers, any creditor of Borrowers or a trustee in
bankruptcy, recovers from Agent Bank any amount found to have been wrongfully
paid to Agent Bank or disbursed by Agent Bank to Lenders, then Lenders, in
proportion to their respective Pro Rata Shares, shall reimburse Agent Bank for
all such amounts.  Notwithstanding the
foregoing, Agent Bank shall not be obligated to advance Liabilities and Costs
and may require the deposit by each Lender of its Pro Rata Share of any
material Liabilities and Costs anticipated by Agent Bank before they are
incurred or made payable.


 


Section 9.08.          Agent
Individually.  With respect to its
Pro Rata Share of the Aggregate Commitment hereunder and the Borrowings made by
it, Agent Bank shall have and may exercise the same rights and powers hereunder
and is subject to the same obligations and liabilities as and to the extent set
forth herein for any other Lender.  The terms
“Lenders”, “Requisite Lenders” or any similar terms may include Agent Bank in
its individual capacity as a Lender or one of the Requisite Lenders, but
Requisite Lenders shall not include Agent Bank solely in its capacity as Agent
Bank and need not necessarily include Agent Bank in its capacity as a
Lender.  Agent Bank and any Lender and
its Affiliates may accept deposits from, lend money to, and generally engage in
any kind of banking, trust or other business with Borrowers or any of their
Affiliates as if it were not acting as Agent Bank or Lender pursuant hereto.


 


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Section 9.09.          Successor Agent Bank;
Resignation of Agent Bank; Removal of Agent Bank.


 


a.             Agent Bank may resign from the
performance of all its functions and duties hereunder at any time by giving at
least thirty (30) Banking Business Days’ prior written notice to Lenders and
Borrowers, and shall automatically cease to be Agent Bank hereunder in the
event a petition in bankruptcy shall be filed by or against Agent Bank or the
Federal Deposit Insurance Corporation or any other Governmental Authority shall
assume control of Agent Bank or Agent Bank’s interests under the Bank
Facilities.  Further, Lenders (other than
Agent Bank) may unanimously remove Agent Bank at any time upon the occurrence
of gross negligence or wilful misconduct by Agent Bank by giving at least
thirty (30) Banking Business Days’ prior written notice to Agent Bank,
Borrowers and all other Lenders.  Such
resignation or removal shall take effect upon the acceptance by a successor
Agent Bank of appointment pursuant to clause (b) or (c).


 


b.             Upon any such notice of
resignation by or removal of Agent Bank, Requisite Lenders shall appoint a
successor Agent Bank which appointment shall be subject to Borrowers’ consent
(other than upon the occurrence and during the continuance of any Event of
Default), which shall not be unreasonably withheld or delayed.  Any successor Agent Bank must be a bank (i) the
senior debt obligations of which (or such bank’s parent’s senior unsecured debt
obligations) are rated not less than Baa-2 by Moody’s Investors Services, Inc.
or a comparable rating by a rating agency acceptable to Requisite Lenders and (ii) which
has total assets in excess of Ten Billion Dollars ($10,000,000,000.00).


 


c.             If a successor Agent Bank shall
not have been so appointed within said thirty (30) Banking Business Day period,
the retiring or removed Agent Bank, with the consent of Borrowers (other than
upon the occurrence and during the continuance of any Event of Default) (which
may not be unreasonably withheld or delayed), shall then appoint a successor
Agent Bank who shall meet the requirements described in subsection (b) above
and who shall serve as Agent Bank until such time, if any, as Requisite
Lenders, with the consent of Borrowers (other than upon the occurrence and
during the continuance of any Event of Default), appoint a successor Agent Bank
as provided above.


 


Section 9.10.          Consent and Approvals.


 


a.             Each consent, approval,
amendment, modification or waiver specifically enumerated in this Section 9.10(a) shall
require the consent of Requisite Lenders:


 


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(i)            Approval
of Borrowings with less than full compliance with requirements of Article IIIB
(Section 2.04);


 


(ii)           Consent
to modification to financial reporting requirements or production of additional
financial or other information (Section 5.08);


 


(iii)          Approval
of Investments (Section 6.08);


 


(iv)          Approval
of a change in the method of calculation of any financial covenants, standards
or terms as a result of a change in accounting principle (Section 6.18);


 


(v)           Direct
Agent Bank to declare the unpaid balance of the Credit Facility fully due and
payable (Section 7.02);


 


(vi)          Direct
the disposition of insurance proceeds or condemnation awards under certain
circumstances (Section 8.02);


 


(vii)         Approval
of appointment of successor Agent Bank (Section 9.09);


 


(viii)        Approval
of certain Protective Advances (Section 9.11(a));


 


(ix)           Approval
of a Post-Foreclosure Plan and related matters (Section 9.11(e));


 


(x)            Consent
to action or proceeding against Borrowers or the Collateral by any Lender (Section 9.12);


 


(xi)           Except
as referred to in subsection (b) below, approval of any amendment,
modification or termination of this Credit Agreement, or waiver of any
provision herein (Section 10.01).


 


b.             Each consent, approval,
amendment, modification or waiver specifically enumerated in Section 10.01
shall require the consent of all Lenders.


 


c.             In addition to the required
consents or approvals referred to in subsection (a) above, Agent Bank
may at any time request instructions from Requisite Lenders with respect to any
actions or approvals which, by the terms of this Credit Agreement or of any of
the Loan Documents, Agent Bank is permitted or required to take or to grant
without instructions from any Lenders, and if such instructions are


 


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promptly requested, Agent Bank shall be
absolutely entitled to refrain from taking any action or to withhold any
approval and shall not be under any liability whatsoever to any Person for
refraining from taking any action or withholding any approval under any of the
Loan Documents until it shall have received such instructions from Requisite
Lenders.  Without limiting the foregoing,
no Lender shall have any right of action whatsoever against Agent Bank as a
result of Agent Bank acting or refraining from acting under this Credit
Agreement, the Security Documentation or any of the other Loan Documents in
accordance with the instructions of Requisite Lenders or, where applicable, all
Lenders.  Agent Bank shall promptly
notify each Lender at any time that the Requisite Lenders have instructed Agent
Bank to act or refrain from acting pursuant hereto.


 


d.             Each Lender agrees that any
action taken by Agent Bank at the direction or with the consent of Requisite
Lenders in accordance with the provisions of this Credit Agreement or any Loan
Document, and the exercise by Agent Bank at the direction or with the consent
of Requisite Lenders of the powers set forth herein or therein, together with
such other powers as are reasonably incidental thereto, shall be authorized and
binding upon all Lenders, except for actions specifically requiring the
approval of all Lenders.  All
communications from Agent Bank to Lenders requesting Lenders’ determination,
consent, approval or disapproval (i) shall be given in the form of a
written notice to each Lender, including notice of the Lender Reply Period
described immediately hereinbelow, (ii) shall be accompanied by a
description of the matter or thing as to which such determination, approval,
consent or disapproval is requested, or shall advise each Lender where such
matter or thing may be inspected, or shall otherwise describe the matter or
issue to be resolved, (iii) shall include, if reasonably requested by a
Lender and to the extent not previously provided to such Lender, written
materials and a summary of all oral information provided to Agent Bank by
Borrowers in respect of the matter or issue to be resolved, and (iv) shall
include Agent Bank’s recommended course of action or determination in respect
thereof.  Each Lender shall reply
promptly, but in any event within ten (10) Banking Business Days (the “Lender
Reply Period”).  Unless a Lender shall
give written notice to Agent Bank that it objects to the recommendation or
determination of Agent Bank (together with a written explanation of the reasons
behind such objection) within the Lender Reply Period, such Lender shall be
deemed to have approved of or consented to such recommendation or determination.  With respect to decisions requiring the
approval of Requisite Lenders or all Lenders, Agent Bank shall submit its
recommendation or determination for approval of or consent to such
recommendation or determination to all Lenders and upon receiving the required
approval or consent shall follow the course of action or determination
recommended to Lenders by Agent Bank or such other course of action recommended
by Requisite Lenders, and each non-responding Lender shall be deemed to have
concurred with such recommended course of action.


 


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Section 9.11.          Agency Provisions Relating to
Collateral.


 


a.             Agent Bank is hereby authorized
on behalf of all Lenders, without the necessity of any notice to or further consent
from any Lender, from time to time prior to an Event of Default, to take any
action with respect to any Collateral or Loan Document which may be necessary
to perfect and maintain Liens of the Security Documentation upon the Collateral
granted pursuant to the Loan Documents. 
Agent Bank may make, and shall be reimbursed by Lenders (in accordance
with their Pro Rata Shares), to the extent not reimbursed by Borrowers, for,
Protective Advance(s) during any one (1) calendar year with respect to the
Collateral up to the sum of (i) amounts expended to pay real estate taxes,
assessments and governmental charges or levies imposed upon such Collateral, (ii) amounts
expended to pay insurance premiums for policies of insurance related to such
Collateral, and (iii) One Hundred Thousand Dollars ($100,000.00).  Protective Advances in excess of said sum
during any calendar year for any Collateral shall require the consent of
Requisite Lenders.  In addition, Agent
Bank is hereby authorized on behalf of all Lenders, without the necessity of
any notice to or further consent from any Lender, to waive the imposition of
the late fees provided for in Section 2.09(a) up to a maximum of two (2) times
per calendar year, including any extensions.


 


b.             Lenders hereby irrevocably authorize
Agent Bank, at its option and in its discretion, to release any Security
Documentation granted to or held by Agent Bank upon any Collateral (i) upon
Credit Facility Termination and repayment and satisfaction of all Borrowings,
and all other Obligations and the termination of this Credit Agreement, or (ii) if
approved, authorized or ratified in writing by Agent Bank at the direction of
all Lenders.  Agent Bank shall not be
required to execute any document to evidence the release of the Security Documentation
granted to Agent Bank for the benefit of Lenders herein or pursuant hereto upon
any Collateral if, in Agent Bank’s opinion, such document would expose Agent
Bank to liability or create any obligation or entail any consequence other than
the release of such Security Documentation without recourse or warranty, and
such release shall not in any manner discharge, affect or impair the
Obligations or any Security Documentation upon (or obligations of Borrowers in
respect of) any property which shall continue to constitute part of the
Collateral.


 


c.             Except as provided in this
Credit Agreement, Agent Bank shall have no obligation whatsoever to any Lender
or to any other Person to assure that the Collateral exists or is owned by
Borrowers or is cared for, protected or insured or has been encumbered or that
the Security Documentation granted to Agent Bank herein or in any of the other
Loan Documents or pursuant hereto or thereto have been properly or sufficiently
or lawfully created, perfected, protected or enforced or are entitled to any
particular priority.


 


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d.             Should Agent Bank (i) employ
counsel for advice or other representation (whether or not any suit has been or
shall be filed) with respect to any Collateral or any part thereof, or any of
the Loan Documents, or the attempt to enforce any security interest or Security
Documentation on any of the Collateral, or (ii) commence any proceeding or
in any way seek to enforce its rights or remedies under the Loan Documents,
irrespective of whether as a result thereof Agent Bank shall acquire title to
any Collateral, either through foreclosure, deed in lieu of foreclosure or
otherwise, each Lender, upon demand therefor from time to time, shall
contribute its share (based on its Pro Rata Share) of the reasonable costs
and/or expenses of any such advice or other representation, enforcement or
acquisition, including, but not limited to, fees of receivers or trustees,
court costs, title company charges, filing and recording fees, appraisers’ fees
and fees and expenses of attorneys to the extent not otherwise reimbursed by
Borrowers; provided that Agent Bank shall not be entitled to reimbursement of
its attorneys’ fees and expenses incurred in connection with the resolution of
disputes between Agent Bank and other Lenders unless Agent Bank shall be the
prevailing party in any such dispute. 
Any loss of principal and interest resulting from any Event of Default
shall be shared by Lenders in accordance with their respective Pro Rata
Shares.  It is understood and agreed that
in the event Agent Bank determines it is necessary to engage counsel for
Lenders from and after the occurrence of an Event of Default, said counsel
shall be selected by Agent Bank.


 


e.             In the event that all or any
portion of the Collateral is acquired by Agent Bank as the result of a
foreclosure or the acceptance of a deed or assignment in lieu of foreclosure,
or is retained in satisfaction of all or any part of Borrowers’ obligations,
title to any such Collateral or any portion thereof shall be held in the name
of Agent Bank or a nominee or subsidiary of Agent Bank, as agent, for the
ratable benefit of Agent Bank and Lenders. 
Agent Bank shall prepare a recommended course of action for such
Collateral (the “Post-Foreclosure Plan”), which shall be subject to the
approval of the Requisite Lenders. 
Unless a Lender shall give written notice to Agent Bank that it objects
to the recommended Post-Foreclosure Plan or any alternative Post-Foreclosure
Plan as set forth below, within the Lender Reply Period, such Lender shall be
deemed to have approved such Post-Foreclosure Plan.  In the event that Requisite Lenders do not
approve such Post-Foreclosure Plan, any Lender shall be permitted to submit an
alternative Post-Foreclosure Plan to Agent Bank, and Agent Bank shall submit
any and all such additional Post-Foreclosure Plans to the Lenders for
evaluation and the approval of Requisite Lenders.  In accordance with the approved Post-Foreclosure
Plan, Agent Bank shall manage, operate, repair, administer, complete,
construct, restore or otherwise deal with the Collateral acquired and
administer all transactions relating thereto, including, without limitation,
employing a management agent, leasing agent and other agents, contractors and
employees, including agents of the sale of such Collateral, and the collecting
of rents and other sums from such Collateral and paying the expenses of such
Collateral; actions taken by Agent Bank with


 


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respect to the Collateral, which are not
provided for in the approved Post-Foreclosure Plan or reasonably incidental
thereto, shall require the consent of Requisite Lenders by way of supplement to
such Post-Foreclosure Plan.  Upon demand
therefor from time to time, each Lender will contribute its share (based on its
Pro Rata Share) of all reasonable costs and expenses incurred by Agent Bank
pursuant to the Post-Foreclosure Plan in connection with the construction,
operation, management, maintenance, leasing and sale of such Collateral.  In addition, Agent Bank shall render or cause
to be rendered by the managing agent, to each of the Lenders, monthly, an
income and expense statement for such Collateral, and each of the Lenders shall
promptly contribute its Pro Rata Share of any operating loss for such
Collateral, and such other expenses and operating reserves as Agent Bank shall
deem reasonably necessary pursuant to and in accordance with the
Post-Foreclosure Plan.  To the extent
there is net operating income from such Collateral, Agent Bank shall, in
accordance with all applicable Gaming Laws and the Post-Foreclosure Plan,
determine the amount and timing of distributions to Lenders.  All such distributions shall be made to
Lenders in accordance with their respective Pro Rata Shares.  Lenders acknowledge that if title to any
Collateral is obtained by Agent Bank or its nominee, such Collateral will not
be held as a permanent investment but will be liquidated as soon as
practicable.  Agent Bank shall undertake
to sell such Collateral, at such price and upon such terms and conditions as
the Requisite Lenders shall reasonably determine to be most advantageous.  Any purchase money mortgage or deed of trust
taken in connection with the disposition of such Collateral in accordance with
the immediately preceding sentence shall name Agent Bank, as agent for Lenders,
as the beneficiary or mortgagee.  In such
case, Agent Bank and Lenders shall enter into an agreement with respect to such
purchase money mortgage defining the rights of Lenders in the same Pro Rata
Shares as provided hereunder, which agreement shall be in all material respects
similar to this Article IX insofar as the same is appropriate or
applicable.


 


Section 9.12.          Lender Actions Against Collateral.  Each Lender agrees that it will not take any
action, nor institute any actions or proceedings, against Borrowers or any
other obligor hereunder, under the Security Documentation or under any other
Loan Documents with respect to exercising claims against or rights in any
Collateral without the consent of Requisite Lenders.


 


Section 9.13.          Ratable Sharing.  Subject to Section 9.03 and 9.04,
Lenders agree among themselves that (i) with respect to all amounts
received by them which are applicable to the payment of the Obligations,
equitable adjustment will be made so that, in effect, all such amounts will be
shared among them ratably in accordance with their Pro Rata Shares, whether
received by voluntary payment, by counterclaim or cross action or by the enforcement
of any or all of the Obligations, or the Collateral, (ii) if any of them
shall by voluntary payment or by the exercise of any right of counterclaim or
otherwise, receive payment of a proportion of the aggregate


 


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amount of the Obligations held by it which is
greater than its Pro Rata Share of the payments on account of the Obligations,
the one receiving such excess payment shall purchase, without recourse or
warranty, an undivided interest and participation (which it shall be deemed to
have done simultaneously upon the receipt of such payment) in such Obligations
owed to the others so that all such recoveries with respect to such Obligations
shall be applied ratably in accordance with their Pro Rata Shares; provided,
that if all or part of such excess payment received by the purchasing party is
thereafter recovered from it, those purchases shall be rescinded and the
purchase prices paid for such participations shall be returned to that party to
the extent necessary to adjust for such recovery, but without interest except
to the extent the purchasing party is required to pay interest in connection
with such recovery.  Borrowers agree that
any Lender so purchasing a participation from another Lender pursuant to this Section 9.13
may, to the fullest extent permitted by law, exercise all its rights of payment
with respect to such participation as fully as if such Lender were the direct
creditor of Borrowers in the amount of such participation.  No Lender shall exercise any setoff, banker’s
lien or other similar right in respect to any Obligations without the prior
written approval by Agent Bank.


 


Section 9.14.          Delivery of Documents.  Agent Bank shall as soon as reasonably
practicable distribute to each Lender at its primary address set forth on the
appropriate counterpart signature page hereof, or at such other address as
a Lender may request in writing, (i) copies of all documents to which such
Lender is a party or of which is executed or held by Agent Bank on behalf of
such Lender, (ii) all documents of which Agent Bank receives copies from
Borrowers pursuant to Article VI and Section 10.03, (iii) all
other documents or information which Agent Bank is required to send to Lenders
pursuant to the terms of this Credit Agreement, (iv) other information or
documents received by Agent Bank at the request of any Lender, and (v) all
notices received by Agent Bank pursuant to Section 5.20.  In addition, within fifteen (15) Banking
Business Days after receipt of a request in writing from a Lender for written
information or documents provided by or prepared by Borrowers, Agent Bank shall
deliver such written information or documents to such requesting Lender if
Agent Bank has possession of such written information or documents in its
capacity as Agent Bank or as a Lender.


 


Section 9.15.          Notice of Events of Default.  Agent Bank shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default (other
than nonpayment of principal of or interest on the Credit Facility) unless
Agent Bank has received notice in writing from a Lender or Borrowers referring
to this Credit Agreement or the other Loan Documents, describing such event or
condition and expressly stating that such notice is a notice of a Default or
Event of Default.  Should Agent Bank
receive such notice of the occurrence of a Default or Event of Default, or


 


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should Agent Bank send Borrowers a notice of
Default or Event of Default, Agent Bank shall promptly give notice thereof to
each Lender.


 


ARTICLE X


 


GENERAL
TERMS AND CONDITIONS


 


The following terms and conditions shall be applicable throughout the
term of this Credit Agreement:


 


Section 10.01.        Amendments and Waivers. (a) No amendment or modification of any provision of
this Credit Agreement shall be effective without the written agreement of
Requisite Lenders (after notice to all Lenders) and Borrowers (except for
rights and priorities of Lenders as amongst themselves as provided in Section 9.04(a) which
do not require the consent of Borrowers), and (b) no termination or waiver
of any provision of this Credit Agreement, or consent to any departure by
Borrowers therefrom (except as expressly provided in Section 9.11(a) with
respect to waivers of late fees), shall in any event be effective without the
written concurrence of Requisite Lenders (after notice to all Lenders), which
Requisite Lenders shall have the right to grant or withhold at their sole
discretion, except that the following amendments, modifications or waivers
shall require the consent of all Lenders:


 


a.             Modify any requirement hereunder
that any particular action be taken by all the Lenders or by the Requisite
Lenders, modify this Section 10.01 or change the definition of “Requisite
Lenders”, or remove Agent Bank under Section 9.09(a), shall be effective
unless consented to by all of the Lenders, without regard to the vote of Agent
Bank as a Lender;


 


b.             Increase the Aggregate
Commitment or the Syndication Interest of any Lender, release any Collateral
except as specifically provided in the Credit Agreement, extend the Maturity
Date, release any Subsidiary that has executed a Subsidiary Guaranty or change
any provision expressly requiring the consent of all Lenders shall be made
without the consent of each Lender; or


 


c.             Reduce any fees described in Section 2.10
or extend the due date for, or reduce or postpone the amount of, any required
principal reduction on the Credit Facility, or reduce the rate of interest or
postpone the payment of interest on the Credit Facility, shall be made without
the consent of all of the Lenders.


 


In connection with any proposed amendment, modification, supplement,
extension, termination, consent or waiver requiring the consent of all Lenders
as set forth in (i) through (iii) above, if the consent of the
Requisite Lenders is obtained, but the consent of other Lenders whose consent
is required is not obtained (any such Lender


 


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whose consent is not obtained as described in
this Section 10.01 being referred to as a “Non-Consenting Lender”), then,
so long as the Lender that is acting as the Agent Bank is not a Non-Consenting
Lender, at the Borrowers’ request, the Lender that is acting as the Agent Bank
or an Eligible Assignee that is acceptable to the Agent Bank (in either case
the “Purchasing Lender”) shall have the right with the Agent Bank’s consent and
in the Agent Bank’s sole discretion (but shall have no obligation) to purchase
from such Non-Consenting Lender, and such Non-Consenting Lender agrees that it
shall, upon the Agent Bank’s request, sell and assign to the Purchasing Lender
all of its rights and obligations under this Credit Agreement and the other
Loan Documents (including all of its rights and obligations in the Bank
Facilities) for an amount equal to the Non-Consenting Lender’s Syndication
Interest in the Funded Outstandings and all accrued interest, fees and other
Obligations with respect thereto through the date of sale (or such other
amounts as may be agreed upon by the Non-Consenting Lender and the Purchasing
Lender).  In such event, such
Non-Consenting Lender and such Purchasing Lender agree to execute an Assignment
and Assumption Agreement to reflect such purchase and sale, but regardless of
whether such Assignment and Assumption Agreement is executed by such
Non-Consenting Lender, such Non-Consenting Lender’s rights hereunder, except
rights under Section 5.14 (i.e. Indemnification by the Borrowers) and
10.14 (i.e. Arbitration) with respect to actions prior to such date, shall
cease from and after the date of presentation of the Assignment and Assumption
Agreement duly executed by such Purchasing Lender and tender by the Purchasing
Lender of the amount of the purchase price.


 


No amendment, modification, termination or waiver of any provision of Article IX
or any other provision referring to Agent Bank shall be effective without the
written concurrence of Agent Bank, but only if such amendment, modification,
termination or waiver alters the obligations or rights of Agent Bank.  Any waiver or consent shall be effective only
in the specific instance and for the specific purpose for which it was
given.  No notice to or demand on
Borrowers in any case shall entitle Borrowers to any other further notice or
demand in similar or other circumstances. 
Any amendment, modification, termination, waiver or consent effected in
accordance with this Section 10.01 shall be binding on each assignee,
transferee or recipient of Agent Bank’s or any Lender’s Syndication Interest
under this Credit Agreement or the Credit Facility at the time
outstanding.  No modification of Section 2.08
shall be made without the consent of Swingline Lender.  No modification of Section 2.14 shall be
made without the consent of the L/C Issuer.


 


Section 10.02.        Failure to Exercise Rights.  Nothing herein
contained shall impose upon Banks or Borrowers any obligation to enforce any
terms, covenants or conditions contained herein.  Failure of Banks or Borrowers, in any one or
more instances, to insist upon strict performance by Borrowers or Banks of any
terms, covenants or conditions of this Credit Agreement or the other Loan
Documents, shall


 


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not be considered or taken as a waiver or
relinquishment by Banks or Borrowers of their right to insist upon and to
enforce in the future, by injunction or other appropriate legal or equitable
remedy, strict compliance by Borrowers or Banks with all the terms, covenants
and conditions of this Credit Agreement and the other Loan Documents.  The consent of Banks or Borrowers to any act
or omission by Borrowers or Banks shall not be construed to be a consent to any
other or subsequent act or omission or to waive the requirement for Banks’ or Borrowers’
consent to be obtained in any future or other instance.


 


Section 10.03.        Notices and Delivery.  Unless otherwise
specifically provided herein, any consent, notice or other communication herein
required or permitted to be given shall be in writing and may be personally
served, telecopied or sent by courier service or United States mail and shall
be deemed to have been given when delivered in person or by courier service,
upon receipt of a telecopy (or on the next Banking Business Day if such telecopy
is received on a non-Banking Business Day or after 5:00 p.m. on a Banking
Business Day) or four (4) Banking Business Days after deposit in the
United States mail (registered or certified, with postage prepaid and properly
addressed).  Notices to Agent Bank
pursuant to Article II shall not be effective until received by Agent
Bank.  For the purposes hereof, the
addresses of the parties hereto (until notice of a change thereof is delivered
as provided in this Section 10.03) shall be as set forth below each party’s
name on the signature pages hereof, or, as to each party, at such other
address as may be designated by such party in an Assignment and Assumption
Agreement or in a written notice to all of the other parties.  All deliveries to be made to Agent Bank for
distribution to the Lenders shall be made to Agent Bank at the addresses
specified for notice on the signature page hereto and in addition, a
sufficient number of copies of each such delivery shall be delivered to Agent
Bank for delivery to each Lender at the address specified for deliveries on the
signature page hereto or such other address as may be designated by Agent
Bank in a written notice.


 


Section 10.04.        Modification in Writing.  This Credit
Agreement and the other Loan Documents constitute the entire agreement between
the parties and supersede all prior agreements whether written or oral with
respect to the subject matter hereof, including, but not limited to, any term
sheets furnished by any of the Banks to Borrowers.  Neither this Credit Agreement, nor any other
Loan Documents, nor any provision herein, or therein, may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge or termination
is sought.


 


Section 10.05.        Other Agreements.  If the terms of any
documents, certificates or agreements delivered in connection with this Credit
Agreement are inconsistent with the terms of the Loan Documents, Borrowers
shall use their best


 


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efforts to amend such document, certificate
or agreement to the satisfaction of Agent Bank to remove such inconsistency.


 


Section 10.06.        Counterparts.  This Credit
Agreement may be executed by the parties hereto in any number of separate
counterparts with the same effect as if the signatures hereto and hereby were
upon the same instrument.  All such
counterparts shall together constitute but one and the same document.


 


Section 10.07.        Rights, Powers and Remedies are Cumulative.  None of the rights, powers and remedies
conferred upon or reserved to Agent Bank, Banks or Borrowers in this Credit
Agreement are intended to be exclusive of any other available right, power or
remedy, but each and every such right, power and remedy shall be cumulative and
not alternative, and shall be in addition to every right, power and remedy
herein specifically given or now or hereafter existing at law, in equity or by
statute.  Any forbearance, delay or
omission by Agent Bank, Banks or Borrowers in the exercise of any right, power
or remedy shall not impair any such right, power or remedy or be considered or
taken as a waiver or relinquishment of the right to insist upon and to enforce
in the future, by injunction or other appropriate legal or equitable remedy,
any of said rights, powers and remedies given to Agent Bank, Banks or Borrowers
herein.  The exercise of any right or
partial exercise thereof by Agent Bank, Banks or Borrowers shall not preclude
the further exercise thereof and the same shall continue in full force and
effect until specifically waived by an instrument in writing executed by Agent
Bank or Banks, as the case may be.


 


Section 10.08.        Continuing Representations.  All agreements,
representations and warranties made herein shall survive the execution and
delivery of this Credit Agreement, the making of the Credit Facility hereunder
and the execution and delivery of each other Loan Document until and final
payment of all sums owing under the Credit Facility and the occurrence of
Credit Facility Termination.


 


Section 10.09.        Successors and Assigns.  All of the terms,
covenants, warranties and conditions contained in this Credit Agreement shall
be binding upon and inure to the sole and exclusive benefit of the parties
hereto and their respective successors and assigns.


 


Section 10.10.        Assignment of Loan Documents by Borrowers or Syndication
Interests by Lenders.


 


a.             This Credit Agreement and the
other Loan Documents to which Borrowers are a party will be binding upon and
inure to the benefit of Borrowers, the Agent Bank, each of the Banks, and their
respective successors and assigns, except that, Borrowers may not assign
their rights hereunder or thereunder or any interest herein or therein without
the prior written consent of all the Lenders. 
Any


 


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attempted assignment or delegation in
contravention of the foregoing shall be null and void.  Any Lender may at any time pledge its
Syndication Interest in the Credit Facility, the Credit Agreement and the Loan
Documents to a Federal Reserve Bank, but no such pledge shall release that
Lender from its obligations hereunder or grant to such Federal Reserve Bank the
rights of a Lender hereunder absent foreclosure of such pledge.


 


b.             Each Lender may assign all or
any part of its Syndication Interest in the Credit Facility to any Affiliate of
such Lender which is an Eligible Assignee or to any other Lender without
consent and to one or more financial institutions that are Eligible Assignees
with the prior consent of the Agent Bank and Borrowers (so long as no Event of
Default has occurred and remains continuing), which consents shall not be
unreasonably withheld or delayed; provided, however, that the minimum
amount of each such assignment shall be One Million Dollars ($1,000,000.00), or
such lesser amount as constitutes the remaining amount of a Lender’s
Syndication Interest in the Credit Facility (except that there shall be no
minimum assignment among the Lenders or to their Affiliates), and each assignee
Lender (or assignor if so agreed between the assignee Lender and such assignor)
shall pay to the Agent Bank an assignment fee of Three Thousand Five Hundred
Dollars ($3,500.00) with respect to each such assignment.  Each such assignment shall be evidenced by an
assignment substantially in the form of the Assignment and Assumption
Agreement.  Upon any such assignment, the
assignee financial institution shall become a Lender for all purposes under the
Credit Agreement and each of the Loan Documents and the assigning Lender shall
be released from its further obligations hereunder to the extent of such
assignment.  Agent Bank agrees to give
prompt notice to Borrowers of each assignment made under this Section 10.10(b) and
to deliver to Borrowers each revision to the Schedule of Lenders’
Proportions in Credit Facility made as a consequence of each such assignment.


 


c.             Each Lender may sell
participations for all or any part of its Syndication Interest in the Credit
Facility; provided, however, that (i) such Lender shall remain
responsible for its total obligations under the Credit Agreement and each of
the Loan Documents, (ii) the Borrowers and the Agent Bank shall continue
to deal solely with such Lender in connection with such Lender’s rights and
obligations under the Credit Agreement and each of the Loan Documents, and (iii) such
Lender shall not sell any participation under which the participant would have
rights to approve any amendment or waiver relating to the Credit Agreement or
any Loan Document except to the extent any such amendment or waiver would
(w) extend the final Maturity Date or the date for the payment or any
installments of fees, principal or interest due in respect of the Credit
Facility, (x) reduce the amount of any required principal reduction in
respect to the Credit Facility, (y) reduce the interest rates or fees
applicable to the Credit Facility or (z) release any material portion of
the Collateral.  Notwithstanding the
foregoing, the rights of the Lenders to make assignments and to grant
participations


 


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shall be subject to the approval by the
Gaming Authorities of the assignee or participant, to the extent required by
applicable Gaming Laws, and to applicable securities laws.


 


d.             In the event any Lender is found
unsuitable as a Lender under the Credit Facility by the Nevada Gaming
Authorities (“Unsuitable Lender”), then to the extent permitted by applicable
Laws: (a) Agent Bank shall use its best efforts to find a replacement
Lender, (b) Borrowers shall have the right to make a Voluntary Permanent
Reduction in the amount necessary to reduce the Aggregate Commitment by the
amount of the Syndication Interest held by the Unsuitable Lender, and any
payments required in connection with such Voluntary Permanent Reduction shall
be made to the Unsuitable Lender and not on a pro rata basis to all Lenders,
(without any penalties, including any Breakage Charges) until a replacement
Lender, if any, commits to acquire the Syndication Interest of the Unsuitable
Lender, at which time the Aggregate Commitment shall be increased by the amount
of the Voluntary Permanent Reduction, and (c) upon full payment of all
outstanding amounts of principal and interest owing it, such Unsuitable Lender
shall execute such documents as may be required by Agent Bank, Borrowers or any
applicable gaming authorities to evidence the termination of its Syndication
Interest in the Credit Facility.


 


Section 10.11.        Action by Lenders.  Whenever Banks
shall have the right to make an election, or to exercise any right, or their
consent shall be required for any action under this Credit Agreement or the
Loan Documents, then such election, exercise or consent shall be given or made
for all Banks by Agent Bank in accordance with the provisions of Section 10.01.  Notices, reports and other documents required
to be given by Borrowers to Banks hereunder may be given by Borrowers to Agent
Bank on behalf of Banks, with sufficient copies for distribution to each of the
Banks, and the delivery to Agent Bank shall constitute delivery to Banks.  In the event any payment or payments are
received by a Lender other than Agent Bank, Borrowers consent to such payments
being shared and distributed as provided herein.


 


Section 10.12.        Time of Essence.  Time shall be of
the essence of this Credit Agreement.


 


Section 10.13.        Choice of Law and Forum.  This Credit
Agreement and each of the Loan Documents shall be governed by and construed in
accordance with the internal laws of the State of Nevada without regard to
principles of conflicts of law. 
Borrowers further agree that the full and exclusive forum for the
determination of any action relating to this Credit Agreement, the Loan
Documents, or any other document or instrument delivered in favor of Banks
pursuant to the terms hereof shall be either an appropriate Court of the State
of Nevada or the United States District Court or United States Bankruptcy Court
for the District of Nevada.


 


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Section 10.14.        Arbitration.


 


a.             Upon the request of any party,
whether made before or after the institution of any legal proceeding, any
action, dispute, claim or controversy of any kind (e.g., whether in contract or
in tort, statutory or common law, legal or equitable) (“Dispute”) now existing
or hereafter arising between the parties in any way arising out of, pertaining
to or in connection with the Credit Agreement, Loan Documents or any related
agreements, documents, or instruments (collectively the “Documents”), may, by
summary proceedings (e.g., a plea in abatement or motion to stay further
proceedings), bring an action in court to compel arbitration of any Dispute.


 


b.             All Disputes between the parties
shall be resolved by binding arbitration governed by the Commercial Arbitration
Rules of the American Arbitration Association.  Judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction.


 


c.             No provision of, nor the
exercise of any rights under this arbitration clause shall limit the rights of
any party, and the parties shall have the right during any Dispute, to seek,
use and employ ancillary or preliminary remedies, judicial or otherwise, for
the purposes of realizing upon, preserving, protecting or foreclosing upon any property, real or personal, which is involved in a
Dispute, or which is subject to, or described in, the Documents, including,
without limitation, rights and remedies relating to: (i) foreclosing
against any real or personal property collateral or other security by the
exercise of a power of sale under the Security Documentation or other security
agreement or instrument, or applicable law, (ii) exercising self-help
remedies (including setoff rights) or (iii) obtaining provisional or
ancillary remedies such as injunctive relief, sequestration, attachment,
garnishment or the appointment of a receiver from a court having jurisdiction
before, during or after the pendency of any arbitration.  The institution and maintenance of an action
for judicial relief or pursuit of provisional or ancillary remedies or exercise
of self-help remedies shall not constitute a waiver of the right of any party,
including the plaintiff, to submit the Dispute to arbitration nor render
inapplicable the compulsory arbitration provision hereof.


 


Section 10.15.        Waiver of Jury Trial.  TO THE MAXIMUM
EXTENT PERMITTED BY LAW, BORROWERS AND EACH OF THE BANKS EACH MUTUALLY HEREBY
EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY ACTION, CAUSE OF ACTION,
CLAIM, DEMAND, OR PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS CREDIT
AGREEMENT, THE REVOLVING CREDIT NOTE OR ANY OF THE LOAN DOCUMENTS, OR IN ANY
WAY CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE DEALINGS OF BORROWERS AND
BANKS WITH RESPECT TO THIS CREDIT AGREEMENT, THE REVOLVING CREDIT NOTE, OR ANY
OF THE LOAN DOCUMENTS, OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER
NOW EXISTING OR HEREAFTER ARISING, AND IRRESPECTIVE OF WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE.  TO THE
MAXIMUM EXTENT PERMITTED BY LAW, BORROWERS


 


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AND EACH OF THE BANKS EACH MUTUALLY AGREE
THAT ANY SUCH ACTION, CAUSE OF ACTION, CLAIM, DEMAND, OR PROCEEDINGS SHALL BE
DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT THE DEFENDING PARTY MAY FILE
AN ORIGINAL COUNTERPART OF THIS SECTION WITH ANY COURT OR OTHER
TRIBUNAL AS WRITTEN EVIDENCE OF THE CONSENT OF THE COMPLAINING PARTY TO THE
WAIVER OF ITS RIGHT TO TRIAL BY JURY.


 


Section 10.16.        Scope of Approval and Review.  Any inspection of the Hotel/Casino Facilities
or other documents shall be deemed to be made solely for Banks’ internal
purposes and shall not be relied upon by the Borrowers or any third party.  In no event shall Lenders be deemed or
construed to be joint venturers or partners of Borrowers.


 


Section 10.17.        Severability of Provisions.  In the event any
one or more of the provisions contained in this Credit Agreement shall be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any
way be affected or impaired thereby.


 


Section 10.18.        Cumulative Nature of Covenants.  All covenants contained herein are cumulative
and not exclusive of each other covenant. 
Any action allowed by any covenant shall be allowed only if such action
is not prohibited by any other covenant.


 


Section 10.19.        Costs to Prevailing Party.  If any action or
arbitration proceeding is brought by any party against any other party under
this Credit Agreement or any of the Loan Documents, the prevailing party shall
be entitled to recover such costs and attorney’s fees as the court in such
action or proceeding may adjudge reasonable.


 


Section 10.20.        Expenses.


 


a.             Generally.  Borrowers agree upon demand to pay, or
reimburse Agent Bank for, all of Agent Bank’s documented reasonable
out-of-pocket costs and expenses of every type and nature (excluding, however,
all Syndication Costs) incurred by Agent Bank at any time (whether prior to, on
or after the date of this Credit Agreement) in connection with (i) any
requests for consent, waiver or other modification of any Loan Document made by
Borrowers; (ii) the negotiation, preparation and execution of this Credit
Agreement (including, without limitation, the satisfaction or attempted
satisfaction of any of the conditions set forth in Article III), the
Security Documentation and the other Loan Documents and the advance of
Borrowings; (iii) the subordination of any Collateral, including title
charges, recording fees and reasonable attorneys’ fees and costs incurred in
connection therewith; (iv) any appraisals performed after the occurrence
of an Event of Default; (v) the creation, perfection or protection of


 


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the Security Documentation on the Collateral
(including, without limitation, any fees and expenses for title and lien
searches, local counsel in various jurisdictions, filing and recording fees and
taxes, duplication costs and corporate search fees); and (vi) the
protection, collection or enforcement of any of the Obligations or the
Collateral, including Protective Advances.


 


b.             After Event of Default.  Borrowers further agree to pay, or reimburse
Agent Bank and Lenders, for all reasonable out-of-pocket costs and expenses,
including without limitation reasonable attorneys’ fees and disbursements
incurred by Agent Bank or Lenders after the occurrence of an Event of Default (i) in
enforcing any Obligation or in foreclosing against the Collateral or exercising
or enforcing any other right or remedy available by reason of such Event of
Default; (ii) in connection with any refinancing or restructuring of the
credit arrangements provided under this Credit Agreement in the nature of a “work-out”
or in any insolvency or bankruptcy proceeding; (iii) in commencing, defending
or intervening in any litigation or in filing a petition, complaint, answer,
motion or other pleadings in any legal proceeding relating to Borrowers and
related to or arising out of the transactions contemplated hereby; (iv) in
taking any other action in or with respect to any suit or proceeding (whether
in bankruptcy or otherwise); (v) in protecting, preserving, collecting,
leasing, selling, taking possession of, or liquidating any of the Collateral;
or (vi) in attempting to enforce or enforcing any lien in any of the
Collateral or any other rights under the Security Documentation.


 


Section 10.21.        Setoff.  In addition to any rights and remedies of the
Agent Bank provided by law, if any Event of Default exists, Agent Bank is
authorized at any time and from time to time, without prior notice to any
Borrower, any such notice being waived by the Borrowers to the fullest extent
permitted by law, to set-off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held by Agent Bank
to or for the credit or the account of Borrowers against any and all
obligations of Borrowers under the Credit Facility, now or hereafter existing,
irrespective of whether or not the Agent Bank shall have made demand under this
Credit Agreement or any Loan Document and although such amounts owed may be
contingent or unmatured.  Agent Bank
agrees promptly to notify the Borrowers (and Agent Bank shall promptly notify
each other Lender) after any such setoff and application made by Agent Bank;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application. 
The rights of Agent Bank under this Section 10.21 are in addition
to the other rights and remedies which Agent Bank may have.


 


Section 10.22.        Borrower Waivers and Consents.


 


a.             Each Borrower shall be jointly
and severally liable for the repayment of all sums owing under the terms of
this Credit Agreement and each the Loan Documents.


 


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b.             Each Borrower agrees that
neither the Agent Bank nor any Bank shall have any responsibility to inquire
into the apportionment, allocation or disposition of any Borrowings as among
the Borrowers or within the Borrower Consolidation.


 


c.             For the purpose of implementing
the joint borrower provisions of this Credit Agreement and each of the Loan
Documents, each Borrower and the Collateral Affiliate hereby irrevocably
appoints each Authorized Officer as its agent and attorney-in-fact for all
purposes of this Credit Agreement and each of the Loan Documents, including
without limitation the giving and receiving of notices and other
communications, the making of requests for, or conversions or continuations of,
Borrowings, the execution and delivery of certificates and the receipt and
allocation of disbursements from the Banks.


 


d.             Each Borrower acknowledges that
the handling of the Credit Facility on a joint borrowing basis as set forth in
this Credit Agreement is solely an accommodation to Borrowers and is done at
their request.  Each Borrower agrees that
neither the Agent Bank, nor any Lender, shall incur any liability to any
Borrower as a result thereof.  To induce
the Agent Bank and the Lenders to enter into this Credit Agreement, and in
consideration thereof, in accordance with the provisions set forth in Section 5.14
of this Credit Agreement, each Borrower hereby agrees to indemnify the Agent
Bank and each Lender and hold each such entity harmless from and against any
and all liabilities, expenses, losses, damages and/or claims of damage or
injury asserted against such entity by any Borrower or by any other Person
arising from or incurred by reason of the structuring of the Credit Facility as
herein provided, reliance by the Agent Bank or the Lenders on any requests or
instructions from any Borrower or any Authorized Officer, or any other action
taken by the Agent Bank or a Lender under the terms of this Credit Agreement or
any of the Loan Documents at the request of any Borrower or Authorized Officer.  This Section 10.22(d) shall survive
termination of this Credit Agreement.


 


e.             Each Borrower represents and
warrants to the Agent Bank and the Lenders that (i) it has established
adequate means of obtaining from each Borrower on a continuing basis financial
and other information pertaining to the business, operations and condition
(financial and otherwise) of each of the Borrowers and its respective property,
and (ii) each Borrower now is and hereafter will be completely familiar
with the business, operations and condition (financial and otherwise) of each
Borrower, and its property.  Each
Borrower hereby waives and relinquishes any duty on the part of the Agent Bank
or any Lender to disclose to such Borrower any matter, fact or thing relating
to the business, operations or condition (financial or otherwise) of any
Borrower, or the property of any Borrower, whether now or hereafter known by
the Agent Bank or any Lender at any time through Credit Facility Termination.


 


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f.              Each Borrower acknowledges that
the Funded Outstandings, or portions thereof, may derive from value provided
directly to another Borrower and, in full recognition of that fact, each
Borrower consents and agrees that the Agent Bank and any Lender may, at any
time and from time to time, without notice or demand, and without affecting the
enforceability or security of the Loan Documents:


 


(i)            accept
partial payments on the Credit Facility;


 


(ii)           receive
and hold additional security or guaranties for the Credit Facility or any part
thereof;


 


(iii)          release,
reconvey, terminate, waive, abandon, subordinate, exchange, substitute,
transfer and enforce any security or guaranties, and apply any security and
direct the order or manner of sale thereof, as the Agent Bank or Requisite
Lenders in their sole and absolute discretion may determine;


 


(iv)          release
any party or any guarantor from any personal liability with respect to the
Credit Facility or any part thereof;


 


(v)           settle,
release on terms satisfactory to the Agent Bank or Requisite Lenders or by
operation of applicable laws or otherwise liquidate or enforce the Credit
Facility and any security or guaranty in any manner, consent to the transfer of
any security and bid and purchase at any sale; and/or


 


(vi)          consent
to the merger, change or any other restructuring or termination of the
corporate existence of any other Borrower or any other Person, and
correspondingly restructure the Credit Facility, continuing existence of any
lien or encumbrance under any other Loan Document to which any Borrower is a
party or the enforceability hereof or thereof with respect to all or any part
of the Credit Facility.


 


Each Borrower expressly waives any right to
require the Agent Bank or any Lender to marshal assets in favor of any
Borrower, any other party or any other Person or to proceed against any other
Borrower or any other party or any Collateral provided by any Borrower or any
other party, and agrees that the Agent Bank and Lenders may proceed against
Borrowers and/or the Collateral in such order as they shall determine in their
sole and absolute discretion.  The Agent
Bank and Lenders may file a separate action or actions against any Borrower,
whether action is brought or prosecuted with


 


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respect to any other security or against any other Person, or whether
any other Person is joined in any such action or actions.  Each Borrower agrees that the Agent Bank or
Lenders and any other Borrower may deal with each other in connection with the
Credit Facility or otherwise, or alter any contracts or agreements now or
hereafter existing between any of them, in any manner whatsoever, all without
in any way altering or affecting the obligations of such Borrower under the
Loan Documents or the perfection of the Security Documentation.  Each Borrower expressly waives any and all
defenses now or hereafter arising or asserted by reason of: (a) any
disability or other defense of any Borrower or any other party with respect to
the Credit Facility, (b) the unenforceability or invalidity as to any
Borrower, or any other party of the Credit Facility, (c) intentionally
omitted, (d) the cessation for any cause whatsoever of the liability of
any Borrower or any other party (other than by reason of the full payment and
performance of the Credit Facility and the occurrence of Credit Facility
Termination), (e) any failure of the Agent Bank or any Lender to give
notice of sale or other disposition to any Borrower or any defect in any notice
that may be given in connection with any sale or disposition, (f) any act
or omission of the Agent Bank or any Lender or others that directly or
indirectly results in or aids the discharge or release of any Borrower or any
other Person or the Credit Facility or any other security or guaranty therefor
by operation of law or otherwise, (g) any law which provides that the
obligation of a surety or guarantor must neither be larger in amount nor in
other respects more burdensome than that of the principal or which reduces a
surety’s or guarantor’s obligation in proportion to the principal obligation, (h) any
failure of the Agent Bank or any Lender to file or enforce a claim in any
bankruptcy or other proceeding with respect to any Person, (i) the
election by the Agent Bank or any Lender, in any bankruptcy proceeding of any
Person, of the application or non-application of Section 1111(b)(2) of
the United States Bankruptcy Code, (j) any extension of credit or the
grant of any lien or encumbrance under Section 364 of the United States
Bankruptcy Code, (k) any use of cash collateral under Section 363 of the
United States Bankruptcy Code, (l) any agreement or stipulation with
respect to the provision of adequate protection in any bankruptcy proceeding of
any Person, (m) the avoidance of any lien or encumbrance in favor of the Agent
Bank or any Lender for any reason, (n) any bankruptcy, insolvency,
reorganization, arrangement, readjustment of debt, liquidation or dissolution
proceeding commenced by or against any Person, including any discharge of, or


 


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bar or stay against collecting, all or any of the obligations (or any
interest thereon) in or as a result of any such proceeding, or (o) any
election of remedies by the Agent Bank or any Lender, even if the effect
thereof is to destroy or impair any Borrower’s right to subrogation,
reimbursement, exoneration, indemnification or contribution.


 


g.             Each Borrower authorizes the
Agent Bank and any Lender, upon the occurrence of any acceleration of the
Indebtedness then owing under the Credit Facility, at their sole option,
without any other notice or demand and without affecting any of the Credit
Facility or the validity or enforceability of any liens or encumbrance in favor
of the Agent Bank or any Lender on any Collateral, to foreclose any or all of
the Deeds of Trust by judicial or nonjudicial sale.  To the extent permitted by applicable law,
each Borrower expressly waives any defenses to the enforcement of the Loan
Documents or any liens or encumbrances created or granted under the Loan
Documents or to the recovery by the Agent Bank or any Lender against any other
Borrower or any guarantor or any other Person liable therefor of any deficiency
after a judicial or nonjudicial foreclosure or sale, even though such a
foreclosure or sale may impair the subrogation rights of a Borrower and may
preclude a Borrower from obtaining reimbursement or contribution from any other
Borrower.


 


h.             Notwithstanding anything to the
contrary elsewhere contained herein or in any other Loan Document to which any
Borrower is a party, each Borrower hereby expressly agrees with respect to the
Borrowers and their successors and assigns (including any surety) and any other
Person which is directly or indirectly a creditor of the other Borrowers or any
surety for any other Borrower, not to exercise, until Credit Facility
Termination has irrevocably occurred, any rights at law or in equity to
subrogation, to reimbursement, to exoneration, to contribution, to setoff or to
any other rights that could accrue to a surety against a principal, to a
guarantor against a maker or obligor, to an accommodation party against the
party accommodated, or to a holder or transferee against a maker, and which
such Borrower may have or hereafter acquire against any of the Borrowers or any
other such Person in connection with or as a result of such Borrower’s
execution, delivery and/or performance of this Credit Agreement or any other
Loan Document to which such Borrower is a party.


 


Section 10.23.        Confidentiality.  Each of the Banks
agrees to hold any non-public information that it may receive from Borrowers
pursuant to this Credit Agreement (or pursuant to any other Loan Document) in
confidence and consistent with their respective policies for handling material
non-public information, except for disclosure: (a) To the other
Banks; (b) To legal counsel and accountants for Borrowers or any of the
Banks;  (c) To the other
professional advisors to Borrowers or any of the Banks, provided that the recipient
has accepted such information subject to a confidentiality agreement
substantially similar to this Section 10.23; (d) To regulatory


 


141





















 


officials having jurisdiction over that Bank;
(e) To any Gaming Authority having regulatory jurisdiction over Borrowers
or their respective Subsidiaries, provided that each of the Banks agrees to
endeavor to notify Borrowers of any such disclosure; (f) As required by
law or legal process or in connection with any legal proceeding, provided that
such disclosing Bank uses reasonable efforts to notify Borrowers prior to any
such disclosure; and (g) To another financial institution in connection
with a disposition or proposed disposition to that financial institution of all
or part of that Lender’s Syndication Interest hereunder or in the Revolving
Credit Note, provided that the recipient has accepted such information subject
to a confidentiality agreement substantially similar to this Section 10.23.  For purposes of the foregoing, “non-public
information” shall mean any information respecting Borrowers or their
respective Subsidiaries reasonably considered by Borrowers to be material and
not available to the public, other than (i) information previously
filed with any governmental agency and available to the public, (ii) information
which is available to the general public at the time of use or disclosure, (iii) information
which becomes available to the general public, other than by manner of
unauthorized disclosure or use, or (iv) information previously published
in any public medium from a source other than, directly or indirectly, that
Bank.  Nothing in this Section shall
be construed to create or give rise to any fiduciary duty on the part of the
Agent Bank or the Banks to Borrowers.


 


Section 10.24.        The Existing Credit Agreement and Security Documents.  The parties hereto agree that as of the Closing Date: (i) the Existing
Credit Agreement shall be and is hereby amended, superseded and restated in its
entirety by this Credit Agreement; and (ii) each of the Existing Security
Documents shall be and are hereby amended, superseded and restated in their
entirety by the Security Documentation.


 


Section 10.25.        Schedules Attached.  Schedules are
attached hereto and incorporated herein and made a part hereof as follows:


 


Schedule 2.01(a)   -     Schedule of
Lenders’ Proportions in Credit Facility


 


Schedule 3.18        -     Schedule of
Significant Litigation


 


Schedule 4.23        -     Schedule of
Contingent Liabilities


 


Schedule 4.24        -     Schedule of
Restricted and Unrestricted Subsidiaries


 


Section 10.26.          Exhibits Attached.  Exhibits are attached hereto and incorporated
herein and made a part hereof as follows:


 


Exhibit A         -    Revolving
Credit Note


 


Exhibit B          -    Notice
of Borrowing - Form


 


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Exhibit C          -    Continuation/Conversion
Notice -Form


 


Exhibit D         -    Compliance
Certificate - Form


 


Exhibit E          -    Pricing
Certificate - Form


 


Exhibit F          -    Authorized
Officer Certificate -Form


 


Exhibit G          -    Closing
Certificate - Form


 


Exhibit H         -    Assignment
and Assumption Agreement - Form


 


Exhibit I           -    Legal
Opinion - Form


 


Exhibit J           -    Subsidiary
Guaranty - Form


 


Exhibit K         -    MPI
Real Property Description


 


Exhibit L          -    SGLVI
Real Property Description


 


Exhibit M        -    SDI
Real Property Description


 


Exhibit N         -    PIDI
Real Property Description


 


Exhibit O         -    Compliant
Additional Property Description


 


Exhibit P          -    Swingline
Note - Form


 


Exhibit Q         -    Notice
of Swingline Advance - Form


 


Exhibit R          -    Cash
Collateral Pledge Agreement - Form


 


Exhibit S          -    IP
Real Property


 


143





















 


IN WITNESS WHEREOF, the parties
hereto have caused this Credit Agreement to be executed as of the day and year
first above written.


 


 


	
   

  	
  BORROWERS:

  
	
   

  	
   

  
	
   

  	
  MTR GAMING
  GROUP, INC.,

  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Edson R. Arneault

  	
   

  
	
   

  	
   

  	
  Edson R.
  Arneault,

  	
   

  
	
   

  	
   

  	
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MOUNTAINEER
  PARK, INC.,

  	
   

  
	
   

  	
  a West
  Virginia corporation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Edson R. Arneault

  	
   

  
	
   

  	
   

  	
  Edson R.
  Arneault,

  	
   

  
	
   

  	
   

  	
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SPEAKEASY
  GAMING OF LAS VEGAS,

  INC., a Nevada corporation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Edson R. Arneault

  	
   

  
	
   

  	
   

  	
  Edson R.
  Arneault,

  	
   

  
	
   

  	
   

  	
  President

  	
   

  



 


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  PRESQUE ISLE
  DOWNS, INC.,

  a Pennsylvania corporation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Edson R. Arneault

  	
   

  
	
   

  	
   

  	
  Edson R.
  Arneault,

  	
   

  
	
   

  	
   

  	
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SCIOTO
  DOWNS, INC.,

  an Ohio corporation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Edson R. Arneault

  	
   

  
	
   

  	
   

  	
  Edson R.
  Arneault,

  	
   

  
	
   

  	
   

  	
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SPEAKEASY
  GAMING OF FREMONT, INC.,

  a Nevada corporation

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Edson R. Arneault

  	
   

  
	
   

  	
   

  	
  Edson R.
  Arneault,

  	
   

  
	
   

  	
   

  	
  President

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for
  Borrowers:

  
	
   

  	
   

  
	
   

  	
  State Route
  2, South

  P.O. Box 356

  Chester, West Virginia 26034

  
	
   

  	
   

  
	
   

  	
  Attn: Edson
  R. Arneault

  
	
   

  	
   

  
	
   

  	
  Telephone:
  (304) 387-8300

  
	
   

  	
  Facsimile:
  (304) 387-1598

  



 


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  BANKS:

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO
  BANK,

  National Association,

  Agent Bank, Lender,

  Swingline Lender and L/C Issuer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Stephen Buntin

  	
   

  
	
   

  	
   

  	
  Stephen
  Buntin,

  	
   

  
	
   

  	
   

  	
  Vice
  President

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  
	
   

  	
  5340 Kietzke
  Lane

  Suite 201

  Reno, NV 89511



  
	
   

  	
  Telephone:
  (775) 689-6007

  
	
   

  	
  Facsimile:
  (775) 689-6026

  



 


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