Exhibit 10.1


 


LIMITED CONSENT AND FIFTH AMENDMENT 

TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT


 


This LIMITED CONSENT AND
FIFTH AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT (this “Fifth
Amendment”), dated as of July 15, 2009, is entered into by and among: (A) MTR
GAMING GROUP, INC., a Delaware corporation (“MTRI”), MOUNTAINEER PARK,
INC., a West Virginia corporation (“MPI”), PRESQUE ISLE DOWNS, INC., a
Pennsylvania corporation (“PIDI”), and SCIOTO DOWNS, INC., an Ohio
corporation (“SDI” and together with MTRI, MPI, and PIDI, each, a “Borrower”
and collectively, the “Borrowers”); (B) Lenders constituting the
Requisite Lenders; and (C) WELLS FARGO BANK, NATIONAL ASSOCIATION, as
administrative agent and collateral agent for the Lenders under the Credit
Agreement, the Swingline Lender and the L/C Issuer (in such capacity, the “Agent
Bank”).  Capitalized terms used
herein and not otherwise defined herein shall have the meanings given to them
in the Credit Agreement defined below.


 


RECITALS


 


A.            Borrowers, the Agent Bank
and the Lenders have previously entered into that certain Fifth Amended and
Restated Credit Agreement, dated as of September 22, 2006, as amended by
that certain First Amendment to Fifth Amended and Restated Credit Agreement
dated as of June 19, 2007, as further amended by that certain Limited
Waiver and Second Amendment to Fifth Amended and Restated Credit Agreement
dated as of March 31, 2008, as further amended by that certain Third
Amendment to Fifth Amended and Restated Credit Agreement dated as of May 9,
2008 and as further amended by that certain Fourth Amendment to Fifth Amended
and Restated Credit Agreement dated as of December 19, 2008 (collectively,
the “Existing Credit Agreement” and as the same may be further amended,
restated, supplemented or otherwise modified and in effect from time to time,
including, but not limited to, by this Fifth Amendment, the “Credit
Agreement”), by and among Borrowers, the Lenders, and Wells Fargo Bank,
National Association, as Agent Bank, L/C Issuer and Swingline Lender.


 


B.            Borrowers have requested a
limited consent and certain amendments to the Existing Credit Agreement as set
forth below.


 


C.            The Agent Bank and the
Requisite Lenders are willing to grant such requests on the terms and subject
to the conditions set forth in this Fifth Amendment.


 


AGREEMENT


 


NOW, THEREFORE, in
consideration of the foregoing, the mutual covenants and agreements set forth
below and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereby agree, except as otherwise
set forth herein, as of the Fifth Amendment Effective Date (as defined in Section 4
below) as follows:


 


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SECTION 1.         Limited
Consent.


 


(a)           The Borrowers have informed the Agent Bank and the
Lenders that prior to the date hereof, legislation providing for the operation of Gaming
Devices at racetracks has been passed by the Ohio legislature, and in
connection therewith, the Borrowers plan to pay $13,000,000 in fees to the
State of Ohio on or about September 15, 2009 (the “Ohio Licensing
Payment”).  On the terms and subject
to the conditions set forth herein (including the satisfaction of the
conditions precedent set forth in Section 4 below), the Agent Bank
and the Requisite Lenders hereby consent to the Ohio Licensing Payment.


 


(b)           This limited consent is a one-time consent and shall
apply only to the matters expressly set forth in this Section 1.  Without limiting the generality of the
foregoing, the limited consent herein shall not apply to any current or future
circumstances not specified above whether or not similar to the foregoing.


 


(c)           The
Agent Bank and the Lenders reserve all of their rights and remedies with
respect to all other obligations of the Borrowers under the Credit Agreement
and all other Loan Documents.


 


SECTION 2.         Amendments.  On the terms and subject to the conditions of
this Fifth Amendment (including the satisfaction of the conditions precedent
set forth in Section 4 below), the Existing Credit Agreement is
hereby amended as follows:


 


(a)           Deletion of Certain Definitions.  As of the Fifth Amendment Effective Date, the
definitions of “Adjusted Fixed Charge Coverage Ratio,” “Commitment Percentage,”
“Total Leverage Ratio,” “Total Net Funded Debt” and “Total Senior Secured
Funded Debt” in Section 1.01 of the Existing Credit Agreement are
hereby deleted.


 


(b)           Definition of “Acceptable
Senior Refinancing”.  As of the Fifth Amendment Effective Date, the
definition of “Acceptable Senior Refinancing” in Section 1.01 of
the Existing Credit Agreement is hereby amended and restated in its entirety as
follows:


 


“Acceptable Senior
Refinancing” shall mean a full refinancing of the Senior
Unsecured Notes from the proceeds of debt issued (i) pursuant to the terms
of the Senior Secured Notes and the Senior Secured Indenture or (ii) pursuant
to other documentation acceptable to the Requisite Lenders in their sole
discretion (including, without limitation, the amount, maturity, amortization,
interest rate, covenants, defaults and remedies) and the Requisite Lenders have
confirmed such acceptability in writing.


 


(c)           Definition of
“Aggregate Commitment”.


 


(i)             As of the Fifth
Amendment Effective Date, the definition of “Aggregate Commitment” in Section 1.01
of the Existing Credit Agreement is hereby amended and restated in its entirety
as follows:


 


“Aggregate Commitment” shall mean reference to the aggregate
amount committed by Lenders for advance to or on behalf of the Borrowers as
Borrowings under the Credit Facility in the principal amount of Twenty Million
Dollars ($20,000,000.00) as of the Fifth Amendment Effective Date, as may be
reduced from time to time by: (i) the Scheduled Reductions, (ii) Voluntary
Permanent Reductions, and/or (iii) Mandatory Commitment 


 


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Reductions.


 


(ii)            The Borrowers acknowledge
and agree that the Aggregate Commitment Reduction Schedule is not affected by
the reduction in the Aggregate Commitment resulting from the amendment set
forth above.


 


(d)           Definition of “Applicable
Margin”.


 


(i)             As of the Fifth Amendment
Effective Date, the definition of “Applicable Margin” in Section 1.01
of the Existing Credit Agreement is hereby amended and restated in its entirety
as follows:


 


“Applicable Margin” shall mean (i) for any Base Rate Loan,
5.00% and (ii) for any LIBOR Loan, 6.00%.


 


(ii)            For the
avoidance of doubt, all accrued but unpaid interest outstanding prior to the
Fifth Amendment Effective Date shall be priced according to the Applicable
Margin as in effect prior to the Fifth Amendment Effective Date, and all
interest  accruing  from
and after the Fifth Amendment Effective Date shall be priced as set forth using
the Applicable Margin as modified above.


 


(e)           Definition of “Change of
Control”.  As of the Fifth Amendment Effective Date,
clauses (a) and (d) of the definition of “Change of Control” in Section 1.01
of the Existing Credit Agreement are hereby amended and restated in their
entirety as follows:


 


“(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 (other than Jeffrey P. Jacobs or his
Affiliates), own or control, more than forty percent (40%) of the common voting
stock of MTRI; or”


 


“(d)         A “Change of
Control” as defined in the Senior Subordinated Indenture, a “Change of Control”
as defined in the Senior Unsecured Indenture, a “Change of Control” as defined
in the Second Lien Documents or a “change of control” or “change in control” as
defined in any document governing any other Indebtedness in excess of the
Threshold Amount of any Borrower or Restricted Subsidiary which gives the
holders of such Indebtedness the right to accelerate or otherwise require
payment or redemption of such Indebtedness prior to the maturity date thereof.”


 


(f)            Definition of “Default Rate”.  As of the Fifth Amendment Effective Date, the
definition of “Default Rate” in Section 1.01 of the Existing Credit
Agreement is hereby amended by deleting “two percent (2%)” and substituting
“four percent (4.00%)” in lieu thereof.


 


(g)           Definition of “Fifth Amendment”.  As of the Fifth Amendment
Effective Date, the definition
of “Fifth Amendment” is
hereby added to Section 1.01 of the Existing Credit Agreement as
follows:


 


“Fifth Amendment” shall mean the Fifth Amendment to Fifth
Amended and 


 


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Restated
Credit Agreement dated as of July 15 , 2009.


 


(h)           Definition of “Fifth Amendment
Effective Date”.  As of the Fifth Amendment
Effective Date, the definition
of “Fifth Amendment Effective Date” is hereby added to Section 1.01 of the Existing Credit Agreement as
follows:


 


“Fifth Amendment Effective Date” shall have the meaning given in
the Fifth Amendment.


 


(i)            Definition of “Hoit Property”.  As of the Fifth Amendment
Effective Date, the definition
of “Hoit Property” is
hereby added to Section 1.01 of the Existing Credit Agreement as
follows:


 


“Hoit Property”
shall mean the approximately 1.1 acre parcel of land in Hancock County, West
Virginia that MPI purchased from Jack C. Hoit, Jr. and Miranda L. Hoit
pursuant to the deed dated November 21, 2007 and recorded in the land
records of Hancock County, West Virginia on December 19, 2007 in Deed Book
286, Page 189.


 


(j)            Definition of “Hoit Property
Compliance”.  As of the Fifth Amendment
Effective Date, the definition
of “Hoit Property Compliance” is hereby added to Section 1.01 of the Existing Credit Agreement as
follows:


 


“Hoit Property
Compliance” shall mean the satisfaction of conditions necessary to allow
MPI to make the New Acquisition Certificates with respect to the Hoit Property.


 


(k)           Definition of “Indebtedness”.  As of the Fifth Amendment Effective Date, the
definition of “Indebtedness” in Section 1.01 of the Existing Credit
Agreement is hereby amended by deleting “Total Funded Debt” and substituting
“Total Secured Debt” in lieu thereof.


 


(l)            Definition of “Interest
Coverage Ratio”.  As of the Fifth Amendment
Effective Date, the definition
of “Interest Coverage Ratio” is hereby added to Section 1.01 of the Existing Credit Agreement as
follows:


 


“Interest Coverage Ratio” means, as of the last day of any
Fiscal Quarter, the ratio of (a)  EBITDA for the four Fiscal Quarter
period ending on that date to (b) Interest Expense for such period.


 


(m)          Definition of “LIBO Rate”.  As of the Fifth Amendment Effective Date, the
definition of “LIBO Rate” in Section 1.01 of the Existing Credit
Agreement is hereby amended and restated in its entirety as follows:


 


“LIBO Rate”
means, relative to any LIBOR Loan Interest Period for any LIBOR Loan included
in any Borrowing, the greater of (i) 2.50% (reserve adjusted as
hereinbelow provided) and (ii) the per annum rate (reserve adjusted as
hereinbelow provided) of interest quoted by the British Bankers Association as
reported on Reuters LIBOR Page 1, or if such rate is not so reported by
Reuters, as reported by any other service selected by Agent Bank, 


 


4

















 


rounded upwards, if
necessary, to the nearest one-sixteenth of one percent (0.0625%) at which
Dollar deposits in immediately available funds are offered 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 (including the
2.50% floor) 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.


 


(n)           Definition of “LIBOR Reserve
Percentage”.  As of the Fifth Amendment Effective Date, the
definition of “LIBOR Reserve Percentage” in Section 1.01 of the
Existing Credit Agreement is hereby amended and restated in its entirety as
follows:


 


“LIBOR Reserve Percentage” means, relative to any LIBOR Loan or
the One Month LIBOR Rate in the calculation of the Base Rate, 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.


 


(o)           Definition of
“Loan Documents”.  As
of the Fifth Amendment Effective Date, the definition of “Loan Documents” in Section 1.01
of the Existing Credit Agreement is hereby amended by deleting “the
Environmental Certificate” and substituting “the Environmental Certificate, the
Second Lien Intercreditor Agreement” in lieu thereof.


 


(p)           Definition of “Non-Core Assets”. As of the
Fifth Amendment Effective Date, the definition of “Non-Core Assets” in Section 1.01
of the Existing Credit Agreement is hereby amended and restated in its entirety
as follows:


 


“Non-Core Assets” shall
mean all assets of the Borrower Consolidation other than (i) the MPI Hotel/Casino Facilities and all
operations and business conducted at or in connection with the MPI Hotel/Casino Facilities and all
assets located at the MPI Hotel/Casino Facilities or used in the operations
or business of or useful to the MPI Hotel/Casino Facilities together with
all real property adjacent or related thereto which could be used for expansion
of or parking facilities for such Facilities, (ii) the SDI Facility and all operations and business
conducted at or in connection with the SDI Facility and all assets located at the SDI Facility or used in the operations or
business of or useful to the SDI Facility together with all real
property adjacent or related thereto which could be used for expansion of or
parking facilities for such Facilities, (iii) the PIDI Facility and all operations and
business conducted at or in connection with the PIDI Facility and all assets located at
PIDI Facility or used in the operations or business 


 


5

















 


of or useful to the PIDI Facility together with all real
property adjacent or related thereto which could be used for expansion of or
parking facilities for such Facilities, (v) the Unrestricted Subsidiaries
and (vi) the common stock, preferred stock, participations, shares,
partnership interests, limited liability company interests or other equity
interests of any Borrower and any Restricted Subsidiary (regardless of how
designated and whether or not voting or non-voting) and warrants, options and
other rights to acquire any of the foregoing. 
For the avoidance of doubt, and notwithstanding anything in the
definition of Non-Core Assets to the contrary, the Non-Core Assets shall include
the real property listed on Schedule 6.12 attached hereto and made a part
hereof.


 


(q)           Definition of “Permitted
Second Lien Indebtedness”.  As of the Fifth Amendment
Effective Date, the definition
of “Permitted Second Lien Indebtedness” is hereby added to Section 1.01 of the Existing Credit Agreement as
follows:


 


“Permitted Second Lien Indebtedness” shall have the meaning
given in the Fifth Amendment.


 


(r)            Definition of “Restricted
Subsidiary”.  As of the Fifth Amendment Effective Date, the
definition of “Restricted Subsidiary” in Section 1.01 of the
Existing Credit Agreement is hereby amended by (i) deleting “Senior
Unsecured Notes” and substituting “Senior Unsecured Notes or the Permitted
Second Lien Indebtedness” in lieu thereof and (ii) deleting “Restricted
Subsidiary Permitted Encumbrances” and substituting “Restricted Subsidiary
Permitted Encumbrances or, so long as the Second Lien Intercreditor Agreement
is in full force and effect, Liens in favor of the holders of Permitted Second
Lien Indebtedness in respect of such obligations” in lieu thereof.


 


(s)           Definition of “Second Lien
Documents”.  As of the Fifth Amendment
Effective Date, the definition
of “Second Lien Documents” is hereby added to Section 1.01 of the Existing Credit Agreement as
follows:


 


“Second Lien Documents” means the
Senior Secured Notes, the Senior Secured Indenture and all other documents
executed in connection therewith.


 


(t)            Definition of “Second Lien
Intercreditor Agreement”.  As of the Fifth Amendment
Effective Date, the definition
of “Second Lien Intercreditor Agreement” is hereby added to Section 1.01 of the Existing Credit Agreement as
follows:


 


“Second Lien Intercreditor Agreement” shall have the meaning
given in the Fifth Amendment.


 


(u)           Definition of “Secured
Leverage Ratio”.  As of the Fifth Amendment
Effective Date, the definition
of “Secured Leverage Ratio” is hereby added to Section 1.01 of the Existing Credit Agreement as
follows:


 


“Secured Leverage Ratio” shall mean, at any time, the ratio of (a) Total
Secured Debt at such time, to (b) EBITDA for the four Fiscal Quarter
period ended as of the end of the most recent Fiscal Quarter for which
financial statements are available.


 


6

















 


(v)           Definition of “Senior Secured
Leverage Ratio”.  As of the Fifth Amendment Effective Date, the
definition of “Senior Secured Leverage Ratio” in Section 1.01 of
the Existing Credit Agreement is hereby amended and restated in its entirety as
follows:


 


“Senior Secured
Leverage Ratio” shall mean, at any time, the ratio of (a) Total Secured
Debt at such time minus the outstanding principal amount of Permitted
Second Lien Indebtedness at such time and minus the outstanding
principal amount of secured Subordinated Obligations at such time, to (b) EBITDA
for the four Fiscal Quarter period ended as of the end of the most recent
Fiscal Quarter for which financial statements are available.


 


(w)          Definition of “Senior Secured
Indenture”.  As of the Fifth Amendment
Effective Date, the definition
of “Senior Secured Indenture” is hereby added to Section 1.01 of the Existing Credit Agreement as
follows:


 


“Senior Secured
Indenture” shall mean that certain Indenture, dated as of the Fifth
Amendment Effective Date, by and among MTRI, as issuer, the guarantors party
thereto, and Wilmington Trust Company, as trustee and as collateral agent,
pursuant to which MTRI issued the Senior Secured Notes.


 


(x)            Definition of “Senior Secured
Notes”.  As of the Fifth Amendment
Effective Date, the definition
of “Senior Secured Notes” is hereby added to Section 1.01 of the Existing Credit Agreement as
follows:


 


“Senior Secured
Notes” shall mean the senior secured notes due 2014 in an aggregate
principal amount of $250,000,000 issued pursuant to the Senior Secured
Indenture.


 


(y)           Definition of “Threshold Amount”.  As of the Fifth Amendment
Effective Date, the definition
of “Threshold Amount” is hereby added to Section 1.01 of the Existing Credit Agreement as
follows:


 


“Threshold
Amount” shall mean $2,500,000.


 


(z)            Definition of “Total Secured
Debt”.  As of the Fifth Amendment
Effective Date, the definition
of “Total Secured Debt” is
hereby added to Section 1.01 of the Existing Credit Agreement as
follows:


 


“Total Secured Debt” shall mean all Indebtedness (including
Contingent Liabilities and Capitalized Lease Liabilities) of the Borrower
Consolidation that is secured by all or any portion of the Collateral
(including, without limitation, the Indebtedness under the Loan Documents and
Permitted Second Lien Indebtedness) less the amount of Excess Cash On Hand as
of any given date of determination.


 


(aa)         Section 1.06/LIBOR
Loans.


 


(i)             As of the Fifth Amendment
Effective Date, Section 1.06 of the Existing Credit Agreement is
hereby deleted.


 


7

















 


(ii)            As of the Fifth Amendment
Effective Date, the parties hereto understand and agree that LIBOR Loans shall
once again be available to the Borrowers on the terms and subject to the
conditions in the Credit Agreement.


 


(bb)         Section 2.08(b)/Swingline Facility.  As of the Fifth Amendment Effective Date, Section 2.08(b) of
the Existing Credit Agreement is hereby amended by deleting “Ten Million
Dollars ($10,000,000.00)” and substituting “Zero Dollars ($0)” in lieu thereof.


 


(cc)         Section 2.09(c)(i)/L/C
Fees.


 


(i)             As of the Fifth Amendment Effective Date,
Section 2.09(c)(i) of the Existing Credit Agreement is hereby
amended by deleting “5.00%” and substituting “6.00%” in lieu thereof.


 


(ii)            For the avoidance of doubt,
all accrued but unpaid L/C Fees outstanding prior to the Fifth Amendment
Effective Date shall be priced according to the Applicable Margin as in effect
prior to the Fifth Amendment Effective Date, and all L/C Fees  accruing  from and after
the Fifth Amendment Effective Date shall be priced as set forth in Section 2.09(c)(i) of
the Credit Agreement as modified above.


 


(dd)         Section 2.10(b)/”Default Rate”.  As of the Fifth Amendment Effective Date, Section 2.10(b) of
the Existing Credit Agreement is hereby amended by deleting “two
percent (2.0%)” and substituting “four percent (4.00%)” in lieu thereof.


 


(ee)         Section 2.14(a)/Letters
of Credit.  As of the
Fifth Amendment Effective Date, Section 2.14(a) of the
Existing Credit Agreement is hereby amended by deleting “Sixty Million Dollars
($60,000,000.00)” and substituting “Five Million Dollars ($5,000,000.00)” in
lieu thereof.


 


(ff)           Section 2.15/Mandatory
Prepayments.  As of the
Fifth Amendment Effective Date, Section 2.15 of the Existing Credit
Agreement is hereby amended by adding a new Section 2.15(f), Section 2.15(g) and
Section 2.15(h) as follows:


 


“f.            If, at any time
from and after the Fifth Amendment Effective Date, any entity included in the
Borrower Consolidation issues or incurs any Indebtedness (excluding
Indebtedness expressly permitted under Section 6.05), the Borrowers
shall immediately, prepay the outstanding Obligations in the manner set forth
in Section 2.15(d), in an aggregate principal amount equal to one
hundred percent (100%) of the principal amount of such Indebtedness.


 


g.             If, at any time
from and after the Fifth Amendment Effective Date, any entity included in the
Borrower Consolidation issues or sells any stock or other equity securities,
the Borrowers shall immediately, prepay the outstanding Obligations in the
manner set forth in Section 2.15(d), in an aggregate principal amount
equal to one hundred percent (100%) of the cash proceeds of such issuance and
sale.


 


h.             Notwithstanding
any provision in the Credit Agreement to the contrary, including but not
limited to Sections 2.15(a) and (d), the Borrowers shall have no
obligation to prepay the outstanding Obligations in connection with the sale of
Non-Core Assets 


 


8

















 


sold
pursuant to Section 6.12(c) and the sale of Non-Core Assets shall not
give rise to a reduction in the Aggregate Commitment.”


 


(gg)         Section 3.31/Conditions
Precedent.  As of the
Fifth Amendment Effective Date, Section 3.31 of the Existing Credit
Agreement is hereby amended by deleting the “and” at the end of clause (c) thereof,
replacing the period at the end of clause (d) thereof with “: and” and
adding a new clause (e) at the end of Section 3.31 as follows:


 


“e.           The Senior Unsecured Notes shall have been fully
refinanced and repaid with the proceeds of Acceptable Senior Refinancing and
the Borrowers shall have provided the Agent Bank with evidence thereof in form
and substance satisfactory to the Agent Bank.”


 


(hh)         Section 4.31/Second
Lien Documents.  As
of the Fifth Amendment Effective Date, Article VI of the Existing
Credit Agreement is hereby amended by adding a new Section 4.31 as
follows:


 


“Section 4.31         Second Lien
Documents.  The copy of
the Second Lien Documents 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 Fifth Amendment
Effective Date, and no amendments or modifications have been made to any such
Second Lien Documents, except as otherwise reasonably approved in writing by
Requisite Lenders.  The Second Lien
Documents have not been terminated and are in full force and effect.  No Default or Event of Default under and as
defined in the Second Lien Documents and the Borrower Consolidation has
occurred and is continuing.  This Credit
Agreement, the Loan Documents, the Bank Facilities and all Obligations
(including Swingline Loans and all other loans and advances hereunder from and
after such Swingline Loans, loans and advances are made and including Letters
of Credit from and after the date such Letters of Credit are issued) are
permitted under the terms of the Second Lien Documents.”


 


(ii)           Section 5.08(e)/Compliance
Certificate.  As of the
Fifth Amendment Effective Date, Section 5.08(e) of the
Existing Credit Agreement is hereby amended by deleting “; provided, however,
that in the event that the Borrowers do not deliver a Compliance Certificate
when due, then until (but only until) such Compliance Certificate is delivered
as provided herein, the Total Leverage Ratio shall be deemed, for the purpose
of determining the Applicable Margin, to be the highest permitted Maximum Total
Leverage Ratio and the Applicable Margin determined with respect thereto”
therefrom.


 


(jj)           Section 5.24/Second
Lien Documents.  As
of the Fifth Amendment Effective Date, (i) Section 5.24(a) of
the Existing Credit Agreement is hereby amended by deleting “and Senior
Subordinated Notes” and substituting “, Senior Subordinated Notes and the
Second Lien Documents” in lieu thereof, (ii) Section 5.24(b) of
the Existing Credit Agreement is hereby amended by deleting “or Senior
Subordinated Notes” and substituting “, Senior Subordinated Notes or the
Second Lien Documents” in lieu thereof, and (iii) Section 5.24
of the Existing Credit Agreement is further amended by adding a new clause (c) as
follows:


 


“(c)         Unless approved in writing by the
Requisite Lenders, the Borrower 


 


9

















 


Consolidation shall not
amend, restate, supplement or otherwise modify any term or provision of any
Second Lien Document to the extent such amendment, restatement, supplement,
modification, or the terms of any new Second Lien Document would:


 


(i)            increase the principal amount of the Senior Secured
Indenture in excess of the amount permitted under this Agreement;


 


(ii)           increase the “Applicable Margin” or similar component
of the interest rate or yield provisions applicable to the Permitted Second
Lien Indebtedness;


 


(iii)          change any default or event
of default or condition to a default or an event of default with respect
thereto (other than to eliminate any such event of default or increase any
grace period related thereto) or add any event of default change (to an earlier date) any date
upon which payment of principal, interest or premium (if any) is due thereon;


 


(iv)          add or make any modification that has the effect
of adding any financial maintenance covenant or debt incurrence covenant
therein;


 


(v)           change the prepayment provisions thereof in any way
that would have the effect of adding any new mandatory prepayment, or
increasing the amount of any existing mandatory prepayment, or requiring that
any existing mandatory prepayment be made on an earlier date;


 


(vi)          increase materially the obligations of any member of
the Borrower Consolidation, or confer any additional material rights upon, the holders of
Permitted Second Lien Indebtedness (or the trustee, agent or other authorized
representative for such holders) (in each case, including without limitation, by
amending or adding covenants) which would be adverse to any member of the
Borrower Consolidation or the Agent Bank or any Lender;


 


(vii)         contravene the provisions of this Agreement or the
Second Lien Intercreditor Agreement;


 


(viii)        grant or permit additional Liens on any asset or
property to secure any Permitted Second Lien Indebtedness unless such
additional Liens secure the Obligations and are expressly subject to the Second
Lien Intercreditor Agreement; or


 


(ix)           amend the levels for the financial covenants or
incurrence tests set forth in the Senior Secured Indenture; provided
that if the levels of the financial covenants in this Agreement are amended,
the corresponding financial covenants or incurrence tests in the Senior Secured
Indenture may be adjusted to levels that are at least 15% less restrictive than
the levels in this Agreement.”


 


(kk)         Section 5.25/Permitted Second Lien
Indebtedness.  As of the
Fifth Amendment Effective Date, the first sentence of Section 5.25
of the Existing Credit Agreement is hereby amended by (A) deleting “or any
Subordinated Obligations” and substituting “or any Subordinated Obligations or
any Permitted Second Lien Indebtedness” in lieu thereof and 


 


10

















 


(B) amending and restating clause (ii) thereof  to read as follows: “(ii) regularly
scheduled payments of interest in respect of such Permitted Second Lien
Indebtedness required pursuant to the Permitted Second Lien Indebtedness,”.


 


(ll)           Section 5.33/Deferral of Green Shingle
Environmental Compliance.  As of the Fifth Amendment
Effective Date,  Section 5.33 of the Existing Credit Agreement
shall be amended and restated in its entirety as follows:


 


“Section 5.33.       Green Shingle Environmental Compliance.  Each of the Lenders
agrees that the occurrence of Green Shingle Environmental Compliance can be
deferred until March 31, 2010.”


 


(mm)       Section 5.34/Encumbrance of Hoit
Property.  As of the Fifth
Amendment Effective Date, Article V of the Existing Credit Agreement is
further amended by adding a new Section 5.34 as follows:


 


“Section 5.34        Encumbrance of Hoit Property.  The
Hoit Property Compliance shall be completed by Borrowers in all material
respects on or before March 31, 2010, and Agent Bank and each of the
Lenders:


 


a.             Agree that the New Acquisition
Certifications with respect to the Hoit Property may be deferred until such
time as the Hoit Property Compliance has been completed; and


 


b.             Agree that the requirement that MPI encumber the Hoit
Property as Collateral shall be deferred until such time as the Hoit Property
Compliance has occurred and Borrowers have delivered the New Acquisition
Certifications with respect to the Hoit Property.”


 


(nn)         Section 6.01/Secured Leverage Ratio.  As of the Fifth Amendment Effective Date, Section 6.01
of the Existing Credit Agreement is hereby amended and restated in its entirety
as follows:


 


“Section 6.01        Secured Leverage Ratio.  Commencing as of the Fifth Amendment
Effective Date, the Borrowers shall not at any time permit the Secured Leverage
Ratio to be greater than the ratio set opposite the applicable period below:


 


	
  Period

  	
   

  	
  Maximum Secured

  Leverage Ratio

  
	
   

  	
   

  	
   

  
	
  Fifth Amendment Effective Date to and including September 30,
  2009

  	
   

  	
  4.00:1.00

  
	
   

  	
   

  	
   

  
	
  October 1, 2009 and thereafter

  	
   

  	
  3.75:1.00”

  



 


(oo)         Section 6.02/Senior Secured Leverage Ratio.  As of the Fifth 


 


11

















 


Amendment Effective Date, Section 6.02 of the Existing
Credit Agreement is hereby amended and restated in its entirety as follows:


 


“Section 6.02         Senior Secured Leverage
Ratio.  Commencing as of the Fifth
Amendment Effective Date, the Borrowers shall not at any time permit the Senior
Secured Leverage Ratio to be greater than 0.50:1.00.


 


(pp)         Section 6.03/Interest Coverage Ratio.  As of the Fifth Amendment Effective Date, Section 6.03
of the Existing Credit Agreement is hereby amended and restated in its entirety
as follows:


 


“Section 6.03         Interest
Coverage Ratio.  Commencing
as of the Fifth Amendment Effective Date, the Borrowers shall not permit the
Interest Coverage Ratio as of the last day of any Fiscal Quarter to be less
than 1.50:1.00.”


 


(qq)         Section 6.05(c)/Permitted
Second Lien Indebtedness.  As
of the Fifth Amendment Effective Date, Section 6.05(c) of the
Existing Credit Agreement is hereby amended and restated in its entirety as
follows:


 


“c.           So long as the
Second Lien Intercreditor Agreement is in full force and effect, Indebtedness
owing by the Borrower Consolidation in respect of the Permitted Second Lien
Indebtedness up to an aggregate principal amount not exceeding Two Hundred
Fifty Million Dollars ($250,000,000) less any repayments of principal or
redemptions thereof;”


 


(rr)           Section 6.05(j)/Subordinated
Obligations.  As of the
Fifth Amendment Effective Date, Section 6.05(j) of the
Existing Credit Agreement is hereby amended by deleting “Section 6.01
(Total Leverage Ratio)” and substituting “Section 6.01 and Section 6.02”
in lieu thereof.


 


(ss)         Section 6.10/Total
Liens.  As of the Fifth Amendment
Effective Date, Section 6.10 of the Existing Credit Agreement is
hereby amended by (i) deleting the period at the end of Section 6.10(d) and
substituting a semi-colon in lieu thereof and (ii) adding a new Section 6.10(e) as
follows:


 


“e.           So long as the
Second Lien Intercreditor Agreement is in full force and effect, Liens securing
Indebtedness permitted by Section 6.05(c).”


 


(tt)           Section 6.12/Sale of Assets,
Consolidation, Merger or Liquidation.


 


(i)            As of the
Fifth Amendment Effective Date, Section 6.12(c) of the Existing
Credit Agreement is hereby amended and restated in its entirety as follows:


 


“(c)         So long as
no Default or Event of Default shall have occurred and remains continuing, the
Borrower Consolidation may sell or otherwise dispose of Non-Core Assets without
further consent or authorization of the Lenders and, in connection with the
sale or disposition of a Non-Core Asset, the Agent Bank shall release such
Non-Core Asset as Collateral.  All fees
and expenses associated with the release of any Non-Core Assets as Collateral
shall be paid by the Borrower Consolidation.”


 


12

















 


(ii)           As of the
Fifth Amendment Effective Date, Section 6.12 of the Existing Credit
Agreement is further amended by adding there to a new clause (e) as
follows:


 


“(e)         The Lenders
hereby consent to the liquidation (or merger or consolidation with another
entity of the Borrower Consolidation) of SGLVI, MTR-Harness, JRI, JTAL and
Speakeasy Gaming of Reno, Inc. (“SGRI”).”


 


(uu)         Section 7.01(j)/Cross-Default.  As of the Fifth Amendment Effective Date, Section 7.01(j) of
the Existing Credit Agreement is hereby amended by deleting “or Senior
Subordinated Notes” and substituting “or Senior Subordinated Notes or Permitted
Second Lien Indebtedness” in lieu thereof.


 


(vv)         Section 8.02/Casualty/Condemnation.  As of the Fifth Amendment Effective Date, Section 8.02
of the Existing Credit Agreement is hereby amended and restated in its entirety
as follows:


 


“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 and any other
insurance policies, 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.  Upon receipt of any such Capital Proceeds,
the Borrowers shall immediately, prepay the outstanding Obligations in the
manner set forth in Section 2.15(d), in an aggregate principal
amount equal to one hundred percent (100%) of the principal amount of such
Capital Proceeds.”


 


(ww)       Section 9.10(d)/Consents. 
As of the Fifth Amendment Effective Date, Section 9.10(d) of
the Existing Credit Agreement is hereby amended by adding the following
sentence at the end thereof:


 


“The Agent Bank is authorized to execute and deliver the Second Lien
Intercreditor Agreement on behalf of the Lenders, and so long as the Second
Lien Intercreditor Agreement shall be effective, certain rights of the Lenders
hereunder and under the Loan Documents shall be subject thereto.  By its execution of the Fifth Amendment or by
separate authorization in writing each Lender has agreed to sell its Loans and
certain other Obligations owing to it in accordance with the terms and subject
to the conditions of Section 5.6 of the Second Lien Intercreditor
Agreement.”


 


(xx)          Replacement
Exhibit/Compliance Certificate.  As of the Fifth Amendment
Effective Date, the Exhibit D of the Existing Credit Agreement is
hereby amended and restated in its entirety with Exhibit D attached
hereto.


 


(yy)         New
Schedule/Non-Core Assets.  As of the Fifth Amendment Effective Date, the Existing
Credit Agreement is amended and restated by adding thereto a new Schedule 6.12
(Non-Core Assets) attached hereto.


 


SECTION 3.         Confirmation of Senior Debt; Cash Collateral;
Amendment Fee.


 


(a)           Confirmation of Senior Debt. 
Borrowers confirm and represent to 


 


13

















 


the Agent Bank and
the Lenders that (i) the definition of “Credit Agreement” in the Senior
Subordinated Indenture refers to the Credit Agreement and that all present and
future Obligations under the Credit Agreement are and will be permitted to be
incurred pursuant to Section 4.11 (b) of the Senior Subordinated
Indenture and (ii) all present and future Obligations under the Credit
Agreement constitute “Senior Debt” and “Designated Senior Debt” under and as
defined in the Senior Subordinated Indenture.


 


(b)           Cash Collateral. 
The parties hereto acknowledge and agree that (i) if any Letters of
Credit are drawn and there is at such time cash collateral pledged to the Agent
Bank or the L/C Issuer, the Agent Bank and the Lenders are authorized to use
and apply such cash collateral to reimburse the L/C Issuer for such drawing,
and (ii) upon the request of the Borrowers at any time after the Senior
Unsecured Notes have been fully refinanced and repaid, provided that at such
time no Default or Event of Default shall have occurred and then be existing,
such cash collateral shall be released to the Borrowers to the extent not
applied to reimburse the L/C Issuer for any drawings under Letters of Credit.


 


(c)           Amendment Fee. 
In addition to all other amounts payable by the Borrowers to the Agent
Bank and/or the Lenders, on the Fifth Amendment Effective Date, Borrowers shall
pay to the Agent Bank, for the account of each Lender that has executed and
delivered a signature page to this Amendment as of the Fifth Amendment
Effective Date (each, a “Consenting Lender”), a non-refundable amendment
fee in an amount equal to 0.25% of such Consenting Lender’s Syndication
Interest of the Aggregate Commitment as of the Fifth Amendment Effective Date
after giving effect to this Fifth Amendment (collectively, the “Amendment
Fees”).  The Amendment Fees are fully
earned, due and payable as of the Fifth Amendment Effective Date.


 


SECTION 4.         Conditions Precedent to the Effectiveness of
this Fifth Amendment.  The consent contained in Section 1
above and the amendments contained in Section 2 above are
conditioned upon satisfaction of the following conditions on or before August 31,
2009 (the first date on which all of the following conditions have been
satisfied being referred to herein as the “Fifth Amendment Effective Date”):


 


(a)           Due execution
and delivery by Borrowers and Lenders constituting the Requisite Lenders of
this Fifth Amendment;


 


(b)           The Borrowers
shall have incurred Two Hundred Fifty Million ($250,000,000) of second lien
Indebtedness on terms and conditions reflected in the section entitled
“Description of Notes” in the preliminary offering circular, dated July 15,
2009, previously provided to the Lenders, without material modification thereto
(other than the addition of any pricing information) that would be materially
adverse to the Lenders as determined by the Agent Bank in its reasonable
discretion (it being understood in any event that the principal financial
covenants or incurrence tests for such proposed second lien Indebtedness must
be at least 15% less restrictive than the corresponding tests in the Credit
Agreement unless the Requisite Lenders otherwise agree) and such acceptability
shall have been confirmed in writing by the Agent Bank (“Permitted Second
Lien Indebtedness”);


 


14
















 


(c)           The
holders of Permitted Second Lien Indebtedness (or the trustee, agent or other
authorized representative for such holders) and the Borrowers shall have
executed and delivered a collateral agency and intercreditor agreement with the
Agent Bank in the form of that provided to and approved by the
Requisite Lenders on or prior to the date hereof with only changes thereto
determined by the Agent Bank in its reasonable discretion not to be material (the “Second Lien Intercreditor Agreement”)
and if less than all of the Lenders have executed this Fifth Amendment, the
Lenders which have not executed this Fifth Amendment shall have agreed to sell
the Obligations owing to it in accordance with the terms and subject to the
conditions of Section 5.6 of the Second Lien Intercreditor Agreement.;


 


(d)           The Borrowers shall have voluntarily prepaid
all Funded Outstandings, Swingline Outstandings and all other Aggregate
Outstandings (other than the undrawn face amount of Letters of Credit) so as to
cause the Aggregate Outstandings (other than the undrawn face amount of Letters
of Credit) to be reduced to zero as of the Fifth Amendment Effective Date and
no extensions of credit are made under the Credit Agreement on the Fifth
Amendment Effective Date (it being understood and agreed that the limitations
in Section 2.07 of the Credit Agreement regarding Principal Prepayments
shall not be applicable to the prepayment contemplated by this clause); and if,
in addition to complying with the voluntary prepayment in this clause (d) and
the satisfaction of all of the other conditions in this Section 4,
there are sufficient proceeds from the incurrence of the Permitted Second Lien
Indebtedness, the Borrowers may prepay the indebtedness outstanding under the
National City Loan Documents on the Fifth Amendment Effective Date;


 


(e)           The Borrowers shall have cash collateralized
105% of the aggregate L/C Exposure of all outstanding Letters of Credit  unless the Senior Unsecured Notes have
been fully refinanced and repaid with the proceeds of the Permitted Second Lien
Indebtedness and the Borrowers have provided the Agent Bank with evidence
thereof in form and substance satisfactory to the Agent Bank;


 


(f)            The Agent Bank, on behalf of the Lenders,
shall have received a legal opinion satisfactory to it opining that the Credit
Agreement and the Second Lien Intercreditor Agreement are enforceable in
accordance with their terms against the Borrowers and that all present
and future Obligations under the Credit Agreement constitute “Senior Debt” and
“Designated Senior Debt” under and as defined in the Senior Subordinated
Indenture;


 


(g)           The Agent Bank shall have received, on behalf
of the Lenders: (i) an amendment to each mortgage, deed of trust and real
property security document in form and substance satisfactory to the Agent Bank
and (ii) such endorsements as the Agent Bank may require in connection
with each existing title policy (or in lieu of such endorsements, an agreement
from the title company to issue such endorsements promptly after the Fifth
Amendment Effective Date);


 


(h)           A certificate, duly executed and delivered by
the Secretary of each Borrower, certifying (i) a true and correct copy of
the resolutions for each of the Borrowers authorizing each respective Borrowers
to enter into all documents and agreements to be executed by it pursuant to
this Fifth Amendment and further authorizing and empowering the officer or
officers who will execute such documents and agreements with the authority and
power to 


 


15

















 


execute
such documents and agreements on behalf of each respective corporation and (ii) the
incumbency, signatures and authority of the officers of such Borrower
authorized to execute, deliver and perform this Fifth Amendment and all other
documents, instruments or agreements related hereto executed or to be executed
by such Borrower;


 


(i)            Agent Bank shall have received, on behalf of
the Consenting Lenders, the Amendment Fees, and Agent Bank shall have received,
on behalf of itself, such fees agreed to be paid by the Borrowers to the Agent
Bank in connection with this Fifth Amendment;


 


(j)            Reimbursement to Agent Bank by Borrowers for
all fees and out-of-pocket expenses incurred by Agent Bank in connection with
this Fifth Amendment and invoiced as of the Fifth Amendment Effective Date, but
not limited to, attorneys’ fees of Orrick, Herrington & Sutcliffe LLP
and all other like expenses remaining unpaid as of the Fifth Amendment
Effective Date; and


 


(k)           Such other documents, instruments or conditions
as may be reasonably required by Agent Bank.


 


SECTION 5.         Representations
and Warranties.  In order to induce the Agent Bank and the
Lenders to enter into this Fifth Amendment and to amend the Existing Credit
Agreement in the manner provided in this Fifth Amendment, Borrowers represent
and warrant to the Agent Bank and each Bank as follows:


 


(a)           Power and Authority. 
Borrowers have all requisite corporate power and authority to enter into
this Fifth Amendment and the Second Lien Intercreditor Agreement and to carry
out the transactions contemplated by, and perform their obligations under, the
Credit Agreement.


 


(b)           Authorization of Agreements.  The
execution and delivery of this Fifth Amendment and the Second Lien
Intercreditor Agreement by Borrowers and the performance of the Credit
Agreement and the Second Lien Intercreditor Agreement by Borrowers has been
duly authorized by all necessary action, and this Fifth Amendment and the
Second Lien Intercreditor Agreement have been duly executed and delivered by
Borrowers.


 


(c)           Enforceability.  Each
of this Fifth Amendment, the Second Lien Intercreditor Agreement and the Credit
Agreement constitutes the legal, valid and binding obligation of each Borrower
enforceable against such Borrower in accordance with its terms, except as may
be limited by bankruptcy, insolvency, other similar laws affecting the
enforcement of creditors’ rights in general or general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).


 


(d)           No Conflict.  The execution and delivery by
Borrowers of this Fifth Amendment and the Second Lien Intercreditor Agreement
and the performance by Borrowers of each of this Fifth Amendment, the Second
Lien Intercreditor Agreement and the Credit Agreement do not and will not (i) violate
any law, rule, regulation, order, writ, injunction or decree of any court or
Governmental Authority to which Borrowers are subject, (ii) violate any
provision of, or result in the breach or the acceleration of, or entitle any
other Person to accelerate any indenture, evidence of indebtedness, loan or
financing agreement, or other 


 


16

















 


agreement
or instrument to which any Borrower is bound or (iii) result in the creation
or imposition of any lien, charge, or encumbrance of any nature whatsoever upon
any of their respective property or assets.


 


(e)           Governmental Consents.  No
authorization or approval or other action by, and no notice to or filing with,
any Governmental Authority is required for the due execution, delivery and
performance by Borrowers of this Fifth Amendment and the Second Lien
Intercreditor Agreement.


 


(f)            Representations and Warranties in the Credit
Agreement.  Borrowers confirm that, as of the Fifth
Amendment Effective Date, the representations and warranties contained in the
Credit Agreement are (after giving effect to this Fifth Amendment) true and
correct in all material respects (except to the extent any such representation
and warranty is expressly stated to have been made as of a specific date, in
which case it shall be true and correct as of such specific date) and that no
Default has occurred and is continuing.


 


SECTION 6.         Releases. 
In further consideration of this Fifth Amendment, each Borrower hereby (i) represents
that it has no defenses to or setoffs against any Obligations owing to the Banks nor claims against the Banks for any matter whatsoever, related to or unrelated to
the Obligations, (ii) waives, releases and forever discharges each of the Banks and their respective agents, officers and directors,
from any and all known and unknown claims, actions, causes of action, demands,
setoffs, damages, causes, suits, accounts, controversies and reckonings, in law
or in equity, filed or otherwise, which they or any of them have or may have
against the Banks, or any of them, by reason
of any matter, facts, cause, act or thing of any conceivable kind or character,
whatsoever, occurring on or prior to the date of execution hereof, which in any
way, directly or indirectly relates to, concerns, arises out of or is founded
upon this Fifth Amendment and/or the documentation, obligations and
transactions evidenced by the Credit Agreement or any of the Loan Documents.


 


SECTION 7.         Miscellaneous.


 


(a)           Reference to and Effect Upon the Existing
Credit Agreement and other Loan Documents.


 


(i)             Except as specifically amended by this Fifth
Amendment and the documents executed and delivered in connection herewith, the
Existing Credit Agreement and each other Loan Document shall remain in full
force and effect and each is hereby ratified and confirmed by the
Borrower.  Without limiting the
foregoing, the Liens granted pursuant to the Security Documents shall continue
in full force and effect.


 


(ii)            Each reference in the Existing Credit
Agreement to “this Credit Agreement”, “hereunder”, “hereof”, “herein” or any
other word or words of similar import shall mean and be a reference to the
Credit Agreement as amended hereby, and each reference in any other Loan
Document to the Existing Credit Agreement or any word or words of similar
import shall be and mean a reference to the Credit Agreement as amended hereby.


 


(iii)           The execution and delivery of this Fifth
Amendment and performance of the Credit Agreement shall not, except as
expressly provided herein, constitute a 


 


17

















 


waiver
of any provision of, or operate as a waiver of any right, power or remedy of
the Agent Bank or the Lenders under the Existing Credit Agreement or any of the
other Loan Documents.


 


(iv)          If there is any conflict between the terms
and provisions of this Fifth Amendment and the terms and provisions of the
Existing Credit Agreement or any other Loan Document, the terms and provisions
of this Fifth Amendment shall govern.


 


(b)           Expenses.  Borrowers acknowledge that all
costs and expenses of the Agent Bank incurred in connection with this Fifth
Amendment and the related Loan Documents will be paid in accordance with Section 10.20
of the Credit Agreement.


 


(c)           Headings.  Section and subsection
headings in this Fifth Amendment are included for convenience of reference only
and shall not constitute a part of this Fifth Amendment for any other purpose
or be given any substantive effect.


 


(d)           Counterparts.  This
Fifth Amendment may be executed in one or more counterparts, each of which
shall be deemed an original but all of which together shall constitute one and
the same instrument.  Transmission by
telecopier or electronic mail of an executed counterpart of this Fifth
Amendment shall be deemed to constitute due and sufficient delivery of such
counterpart.


 


(e)           Governing Law.  This
Fifth Amendment shall be governed by and construed according to the laws of the
State of Nevada without reference to conflicts of law rules.  The scope of the foregoing governing law
provision is intended to be all-encompassing of any and all disputes that may
be brought in any court or any mediation or arbitration proceeding and that
relate to the subject matter of this Fifth Amendment, including contract
claims, tort claims, breach of duty claims and all other common law and
statutory claims.


 


[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]


 


18

















 


IN WITNESS WHEREOF, the
parties hereto have duly executed this Fifth Amendment as of the date first
above written.


 


	
   

  	
  BORROWERS:

  
	
   

  	
   

  
	
   

  	
  MTR
  GAMING GROUP, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John W. Bittner, Jr.

  
	
   

  	
  Name:

  	
  John
  W. Bittner Jr.

  
	
   

  	
  Title:

  	
  Executive
  Vice President Finance & Accounting

  
	
   

  	
   

  
	
   

  	
  MOUNTAINEER
  PARK, INC.,

  
	
   

  	
  a
  West Virginia corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John W. Bittner, Jr.

  
	
   

  	
  Name:

  	
  John
  W. Bittner Jr.

  
	
   

  	
  Title:

  	
  Chief
  Accounting Officer & Treasurer

  
	
   

  	
   

  
	
   

  	
  PRESQUE
  ISLE DOWNS, INC.,

  
	
   

  	
  a
  Pennsylvania corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John W. Bittner, Jr.

  
	
   

  	
  Name:

  	
  John
  W. Bittner Jr.

  
	
   

  	
  Title:

  	
  Chief
  Financial Officer & Treasurer

  
	
   

  	
   

  
	
   

  	
  SCIOTO
  DOWNS, INC.,

  
	
   

  	
  an
  Ohio Corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John W. Bittner, Jr.

  
	
   

  	
  Name:

  	
  John
  W. Bittner Jr.

  
	
   

  	
  Title:

  	
  Chief Financial
  Officer & Chief Accounting Officer

  



 

















 


	
   

  	
  BANKS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION, as Agent Bank, Lender, Swingline Lender and
  L/C Issuer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ryan Edde

  
	
   

  	
  Name:

  	
  Ryan
  Edde

  
	
   

  	
  Title:

  	
  Vice President

  
					



 

















 


	
   

  	
  NATIONAL
  CITY BANK, successor by merger to NATIONAL CITY BANK OF PENNSYLVANIA,

  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Emil Kwaczala

  
	
   

  	
  Name:

  	
  Emil
  Kwaczala

  
	
   

  	
  Title:

  	
  Vice President

  



 

















 


	
   

  	
  CIT
  LENDING SERVICES CORPORATION, 

  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Anthony Holland

  
	
   

  	
  Name:

  	
  Anthony
  Holland

  
	
   

  	
  Title:

  	
  Vice President

  



 

















 


	
   

  	
  PNC
  BANK, 

  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jack Laquatra

  
	
   

  	
  Name:

  	
  Jack
  Laquatra

  
	
   

  	
  Title:

  	
  Vice President

  



 

















 


	
   

  	
  FIFTH
  THIRD BANK, 

  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven Moynihan

  
	
   

  	
  Name:

  	
  Steven
  Moynihan

  
	
   

  	
  Title:

  	
  Senior Vice
  President

  



 

















 


	
   

  	
  COMMERZBANK
  AG,

  NEW YORK AND GRAND CAYMAN BRANCHES 

  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Kelly Goudge

  
	
   

  	
  Name:

  	
  Kelly
  Goudge

  
	
   

  	
  Title:

  	
  AT

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Karla Wirth

  
	
   

  	
  Name:

  	
  Karla
  Wirth

  
	
   

  	
  Title:

  	
  AVP

  



 

















 


EXHIBIT D


COMPLIANCE CERTIFICATE


 


(see attached)