Exhibit 10.1


 


FOURTH
AMENDMENT 

TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT


 


This FOURTH AMENDMENT TO
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT (this “Fourth Amendment”),
dated as of December 19, 2008, is entered into by and among: (A) 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”), and SCIOTO DOWNS, INC., an Ohio
corporation (“SDI” and together with MTRI, MPI, SGLVI and PIDI, each, a “Borrower”
and collectively, the “Borrowers”); (B) the 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, and as further amended by that certain Third Amendment to Fifth Amended
and Restated Credit Agreement dated as of May 9, 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 Fourth 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 certain amendments to the
Existing Credit Agreement as set forth below.


 


C.            The Agent Bank and
the Lenders are willing to grant such requests on the terms and subject to the
conditions set forth in this Fourth 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 Fourth Amendment Effective Date (as defined in Section 3
below) as follows:


 


1

















 


SECTION 1.         Amendments.  On the terms and subject to the conditions of
this Fourth Amendment (including the satisfaction of the conditions precedent
set forth in Section 3 below), the Existing Credit Agreement is
hereby amended as follows:


 


(a)           Definition
of “Aggregate Commitment”.  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 One Hundred Ten Million Dollars
($110,000,000.00) as of the Fourth 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 Reductions.


 


(b)           Definition
of “Aggregate Commitment Reduction Schedule”.  The definition of “Aggregate Commitment
Reduction Schedule” in Section 1.01 of the Existing Credit
Agreement is hereby amended and restated in its entirety as follows:


 


“Aggregate
Commitment Reduction Schedule” shall mean the schedule setting forth the
amount of the Scheduled Reductions as of each Reduction Date under the Credit
Facility, which schedule shall be the Aggregate Commitment Reduction Schedule
marked “Schedule 2.01(c)”, affixed to the Fourth Amendment and by this
reference incorporated herein and made a part hereof, which revised
Schedule 2.01(c) shall fully supersede and restate Schedule 2.01(c) attached
to the Existing Credit Agreement.


 


(c)           Definition
of “Applicable Margin”.  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, for any Base Rate Loan, the per annum margin set forth in the chart below for the
applicable time period below (subject to the proviso following the chart
below).


 




	
  Time Period

  	
   

  	
  Applicable Margin for Base Rate Loans

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  From March 31, 2008 through and
  including the date immediately prior to the Fourth Amendment Effective Date
  (as defined in the Fourth Amendment to Fifth Amended and Restated Credit
  Agreement)

  	
   

  	
  2.250

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  From the Fourth Amendment Effective Date
  (as defined in the Fourth Amendment to Fifth Amended and Restated Credit
  Agreement) through and including March 31, 2009

  	
   

  	
  2.750

  	
  %

  






 


2

















 




	
  From April 1, 2009 through and
  including June 30, 2009

  	
   

  	
  3.250

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  From July 1, 2009 through and
  including September 30, 2009

  	
   

  	
  3.750

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  From October 1, 2009 through and
  including December 31, 2009

  	
   

  	
  4.250

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  From January 1, 2010 and thereafter

  	
   

  	
  4.750

  	
  %

  






 


It
is understood and agreed that no LIBOR Loans have been permitted since the
expiration of the Interest Periods of the LIBOR Loans that were outstanding as
of the Second Amendment Effective Date 
and therefore no Applicable Margin for LIBOR Loans is set forth herein.


 


(d)           Definition
of “Base Rate”. 
The definition of “Base Rate” in Section 1.01 of the
Existing Credit Agreement is hereby amended and restated in its entirety as
follows:


 


“Base Rate” shall mean, on any day, the greatest of (a) the
Prime Rate in effect on such day, (b) the Federal Funds Rate for such day plus
one and one-half percent (1.50%) and (c) one and one-half percent (1.50%) plus
the greater of (i) the One Month LIBOR Rate for such day (determined on a
daily basis as set forth below) and (ii) two and one-half percent
(2.50%).  As used in this definition, “One
Month LIBOR Rate” shall mean, with respect to any interest rate calculation
for a loan or an advance under the Credit Facility or any other Obligation
bearing interest at the Base Rate, a rate per annum equal
to the quotient (rounded upward if necessary to the nearest 1/16 of one
percent) of (a) the rate per annum
referred to as the BBA (British Bankers Association) LIBOR RATE as reported on
Reuters LIBOR page 1, or if not reported by Reuters, as reported by any
service selected by the Agent Bank, on the applicable day (provided that if
such day is not a Banking Business Day for which a LIBOR Rate is quoted, the
next preceding Banking Business Day for which a LIBOR Rate is quoted) at or
about 11:00 a.m., London time (or as soon thereafter as practicable), for
Dollar deposits being delivered in the London interbank eurodollar currency
market for a term of one month commencing on such date of determination, divided
by (b) one minus the LIBOR Reserve Percentage in effect on such
day.  If for any reason rates are not
available as provided in clause (a) of the preceding sentence, the rate to
be used in clause (a) shall be, at the Agent Bank’s discretion (in each
case, rounded upward if necessary to the nearest 1/16 of one percent), (i) the
rate per annum at which Dollar deposits are
offered to the Agent Bank in the London interbank eurodollar currency market or
(ii) the rate at which Dollar deposits are offered to the Agent Bank in,
or by the Agent Bank to major banks in, any offshore interbank eurodollar
market selected by the Agent Bank, in each case on the applicable day (provided
that if such day is not a Banking Business Day for which Dollar deposits are
offered to the Agent Bank in the London or such offshore interbank eurodollar
currency market, the next preceding Banking Business Day for which Dollar
deposits are offered to the Agent Bank in the London or such offshore interbank
eurodollar currency market) at or about 11:00 a.m., London time (or as
soon thereafter as 


 


3

















 


practicable) (for delivery
on such date of determination) for a one month term.  It is understood and agreed that obligations
that bear interest based on the One Month LIBOR Rate as set forth above are not
LIBOR Loans.


 


(e)           Definition of “EBITDA”.  The definition of “EBITDA” in Section 1.01
of the Existing Credit Agreement is hereby amended and restated in its entirety
as follows:


 


“EBITDA” shall
mean, for any period with reference to the Borrower Consolidation, (a) Net
Income for such period plus, (b) to the extent deducted in
determining such Net Income for such period, the sum of the following for such
period, without duplication: (i) Interest Expense (expensed and
capitalized) for such period, (ii) the aggregate amount of federal and
state taxes on or measured by income for such period (whether or not payable
during that period), (iii) depreciation, amortization and all other
non-cash expenses for such period, (iv) all non-cash losses and
extraordinary losses, (v) preopening expenses for such period and (vi) one
or more addbacks for severance costs incurred between October 1, 2008 and December 31,
2009 up to $2,000,000 in the aggregate for all periods (any such addback to be
included in any applicable four Fiscal Quarter period only to the extent
actually incurred in a Fiscal Quarter included in such four Fiscal Quarter
period), minus (c) all non-cash gains and extraordinary gains to
the extent taken into account in arriving at such Net Income, in each case as
determined in accordance with GAAP.


 


For purposes
of Financial Covenants, EBITDA shall include only Cash distributions actually
funded by an Unrestricted Subsidiary that are received by the Borrower
Consolidation.


 


Pro
forma credit shall be given for the EBITDA of a company (or identifiable
business unit or division) included in Borrower Consolidation that was acquired
in a transaction permitted by this Credit Agreement as if such company (or
identifiable business unit or division) was owned on the first day of the
applicable period; companies (or identifiable business units or divisions)
sold, transferred or otherwise disposed of during any period will be treated as
if not owned during the entire applicable period.


 


(f)            Definition of “Excess
Cash On Hand”.  The definition of “Excess Cash On Hand” in Section 1.01
of the Existing Credit Agreement is hereby amended and restated in its entirety
as follows:


 


“Excess Cash On Hand” shall mean the total amount of Cash and Cash
Equivalents held by the Borrower Consolidation as of any date of determination
in excess of Twenty-Two Million Dollars ($22,000,000.00), but shall not include
Cash or Cash Equivalents that have been pledged to secure payment or
performance by any member of the Borrower Consolidation or for which the use
thereof by the Borrower Consolidation is restricted, but shall include funds
held by the Borrower Consolidation to pay for the Construction Completion Costs
of any Construction Project.


 


(g)           Definition
of “Green Shingle Environmental Compliance”.  The following definition is hereby added to Section 1.01
of the Existing Credit Agreement:


 


4

















 


“Green Shingle Environmental Compliance”
shall have the meaning ascribed to such term in that certain Consent and Waiver
Agreement No. 1 to Fifth Amended and Restated Credit Agreement dated as of
December 27, 2006, as amended.


 


(h)           Definition of “Mandatory Commitment Reduction(s)”.  The definition of “Mandatory Commitment
Reduction(s)” in Section 1.01 of the Existing Credit Agreement is
hereby amended and restated in its entirety as follows:


 


“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 2.15, 5.12 and/or 8.02.


 


(i)            Definition of “Maturity Date”.  The definition of “Maturity Date” in Section 1.01
of the Existing Credit Agreement is hereby amended and restated in its entirety
as follows:


 


“Maturity Date” shall mean March 31,
2010; provided, however, in the event the Senior Unsecured Notes are not
fully refinanced pursuant to an Acceptable Senior Refinancing by January 2,
2010, the “Maturity Date” shall be January 2, 2010.


 


(j)            Definition of “Schedule of Lenders’
Proportions in Credit Facility”. 
The definition of “Schedule of Lenders’ Proportions in Credit Facility”
in Section 1.01 of the Existing Credit Agreement is hereby amended
and restated in its entirety as follows:


 


“Schedule
of Lenders’ Proportions in Credit Facility”, a copy of which is set forth
as Schedule 2.01(a), affixed to the Fourth Amendment 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 with respect to the Aggregate Commitment as of
the Fourth Amendment Effective Date, as the same may be amended or restated
from time to time in connection with an Assignment and Assumption Agreement,
which revised Schedule 2.01(a) shall fully restate and supersede Schedule
2.01(a) attached to the Existing Credit Agreement and all previous
amendments and restatements thereof.


 


(k)           Key
Man Life Insurance.


 


(i)           Section 5.09(l) of
the Existing Credit Agreement is hereby amended and restated in its entirety as
follows:


 


“l.         Intentionally Omitted.”


 


(ii)          Section 5.26
of the Existing Credit Agreement is hereby amended and restated in its entirety
as follows:


 


“5.26    Intentionally Omitted.”


 


(l)            Acceptable
Senior Refinancing.  Section 5.25
and Section 7.01(x) of the Existing Credit Agreement are
hereby amended by replacing each reference to “October 1, 2009” with “January 2,
2010.”


 


5

















 


(m)          Deferral
of Green Shingle Environmental Compliance. 
The following provision shall be added to the Existing Credit Agreement
as Section 5.33:


 


“5.33.      Green
Shingle Environmental Compliance. 
Each of the Lenders agrees that the occurrence of Green Shingle
Environmental Compliance can be deferred until December 31, 2009.


 


(n)           Replacement
Schedules 2.01(a) and 2.01(c) and Exhibit/Compliance Certificate.  Schedule 2.01(a) of the Existing Credit Agreement is hereby
amended and restated in its entirety with Schedule 2.01(a) attached
hereto.  Schedule 2.01(c) of
the Existing Credit Agreement is hereby amended and restated in its entirety
with Schedule 2.01(c) attached hereto.  Exhibit D of
the Existing Credit Agreement is hereby amended and restated in its
entirety with Exhibit D attached hereto.


 


SECTION 2.         Amendment Fee. In addition to all other amounts payable
by the Borrowers to the Agent Bank and/or the Lenders, on the Fourth Amendment
Effective Date, Borrowers shall pay to the Agent Bank, for the account of each
Lender, a non-refundable amendment fee in an amount equal to 0.25% of such
Lender’s Syndication Interest of the Aggregate Commitment as of the Fourth
Amendment Effective Date after giving effect to this Fourth Amendment
(collectively, the “Amendment Fees”). 
The Amendment Fees are fully earned, due and payable as of the Fourth
Amendment Effective Date.


 


SECTION 3.         Conditions
Precedent to the Effectiveness of this Fourth Amendment.  The amendments contained in Section 1
above are conditioned upon satisfaction of the following conditions (the first
date on which all of the following conditions have been satisfied being
referred to herein as the “Fourth Amendment Effective Date”):


 


(a)           Due
execution and delivery by Borrowers and Banks of eight (8) duplicate
originals of this Fourth Amendment;


 


(b)           The
Administrative Agent 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 Administrative Agent and (ii) such
endorsements as the Administrative Agent 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 Fourth Amendment
Effective Date).


 


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


 


6

















 


(d)           Borrowers
shall have caused their attorneys to deliver a legal opinion reasonably
satisfactory to Agent Bank;


 


(e)           Agent
Bank shall have received, on behalf of the 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 Fourth
Amendment;


 


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


 


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


 


SECTION 4.         Representations
and Warranties.  In order to induce the Agent Bank and the
Lenders to enter into this Fourth Amendment and to amend the Existing Credit
Agreement in the manner provided in this Fourth 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 Fourth Amendment and
the Revolving Credit Notes (Second Restated) 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 Fourth Amendment by Borrowers and the performance of the
Credit Agreement by Borrowers has been duly authorized by all necessary action,
and this Fourth Amendment and the Revolving Credit Notes (Second Restated) have
been duly executed and delivered by Borrowers.


 


(c)           Enforceability.  Each of this Fourth Amendment, the Revolving
Credit Notes (Second Restated) 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 Fourth Amendment, the Revolving Credit Notes (Second
Restated) and the performance by Borrowers of each of this Fourth Amendment,
the Revolving Credit Notes (Second Restated) 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 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.


 


7

















 


(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 Fourth Amendment and the Revolving Credit Notes (Second
Restated).


 


(f)            Representations
and Warranties in the Credit Agreement. 
Borrowers confirm that, as of the Fourth Amendment Effective Date, the representations
and warranties contained in the Credit Agreement are (after giving effect to
this Fourth 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 5.         Releases.  In
further consideration of this Fourth 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 Fourth Amendment and/or the
documentation, obligations and transactions evidenced by the Credit Agreement
or any of the Loan Documents.


 


SECTION 6.           Miscellaneous.


 


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


 


(i)            Except
as specifically amended by this Fourth 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 Fourth Amendment and performance of the Credit
Agreement shall not, except as expressly provided herein, constitute a 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.


 


8

















 


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


 


(b)           Expenses.  Borrowers acknowledge that all costs and
expenses of the Agent Bank incurred in connection with this Fourth 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
Fourth Amendment are included for convenience of reference only and shall not
constitute a part of this Fourth Amendment for any other purpose or be given
any substantive effect.


 


(d)           Counterparts.  This Fourth 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 Fourth Amendment shall be deemed to
constitute due and sufficient delivery of such counterpart.


 


(e)           Governing
Law.  This Fourth 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 Fourth Amendment, including contract claims, tort claims, breach of
duty claims and all other common law and statutory claims.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT
BLANK]


 


9

















 


IN WITNESS WHEREOF, the parties hereto have duly
executed this Fourth 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 and
  Accounting

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MOUNTAINEER PARK, INC.,

  
	
   

  	
  a West Virginia corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John W.
  Bittner, Jr.

  
	
   

  	
  Name:

  	
   John W. Bittner, Jr.

  
	
   

  	
  Title:

  	
   Chief Accounting Officer and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SPEAKEASY GAMING OF LAS VEGAS, INC.,

  
	
   

  	
  a Nevada corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John W.
  Bittner, Jr.

  
	
   

  	
  Name:

  	
   John W. Bittner, Jr.

  
	
   

  	
  Title:

  	
   Chief Accounting Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PRESQUE ISLE DOWNS, INC.,

  
	
   

  	
  a Pennsylvania corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John W.
  Bittner, Jr.

  
	
   

  	
  Name:

  	
   John W. Bittner, Jr.

  
	
   

  	
  Title:

  	
   Chief Financial Officer and Chief Accounting
  Officer

  
					



 


10
















 


	
   

  	
  SCIOTO DOWNS, INC.,

  
	
   

  	
  an Ohio Corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John W. Bittner, Jr.

  
	
   

  	
  Name:

  	
  John W. Bittner, Jr.

  
	
   

  	
  Title:

  	
  Chief Financial Officer and Chief Accounting Officer

  
					



 

















 


	
   

  	
  BANKS

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK, NATIONAL

  
	
   

  	
  ASSOCIATION, as Agent Bank, Lender, Swingline

  
	
   

  	
  Lender and L/C Issuer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James Neil

  
	
   

  	
  Name:

  	
  James Neil

  
	
   

  	
  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/ Troy Brown

  
	
   

  	
  Name:

  	
  Troy Brown

  
	
   

  	
  Title:

  	
  Vice President

  
					



 

















 


	
   

  	
  FIFTH THIRD BANK,

  
	
   

  	
  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Neil Corry-Roberts

  
	
   

  	
  Name:

  	
  Neil Corry-Roberts

  
	
   

  	
  Title:

  	
  Vice President

  
					



 

















 


	
   

  	
  CITIZENS BANK OF PENNSYLVANIA, 

  
	
   

  	
  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Euclid B. Noble 

  
	
   

  	
  Name:

  	
  Euclid B. Noble 

  
	
   

  	
  Title:

  	
  Vice President

  
					



 

















 


	
   

  	
  COMMERZBANK AG,

  
	
   

  	
  NEW YORK AND GRAND CAYMAN

  
	
   

  	
  BRANCHES

  
	
   

  	
  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Werner Schmidbauer

  
	
   

  	
  Name:

  	
  Werner Schmidbauer

  
	
   

  	
  Title:

  	
  SVP

  
					



 


	
   

  	
  By:

  	
  /s/ Karla Wirth

  
	
   

  	
  Name:

  	
  Karla Wirth

  
	
   

  	
  Title:

  	
  AVP

  
					



 


 

















 


SCHEDULE
2.01(A)


SCHEDULE OF
LENDERS’ PROPORTIONS

IN CREDIT FACILITY


(As
of Fourth Amendment Effective Date)


 


	
  NAME OF LENDER

  	
   

  	
  MAXIMUM AMOUNT OF

  PRINCIPAL

  	
   

  	
  PROPORTIONATE

  SYNDICATION

  INTEREST IN CREDIT

  	
   

  
	
  Wells Fargo Bank, National Association

  	
   

  	
  $

  	
  28,387,096.76

  	
   

  	
  25.8064516

  	
  %

  
	
  CIT Lending Services Corporation

  	
   

  	
  $

  	
  20,580,645.14

  	
   

  	
  18.7096774

  	
  %

  
	
  National City Bank

  	
   

  	
  $

  	
  17,741,935.53

  	
   

  	
  16.1290323

  	
  %

  
	
  Citizens Bank of Pennsylvania

  	
   

  	
  $

  	
  14,903,225.81

  	
   

  	
  13.5483871

  	
  %

  
	
  PNC Bank, National Association

  	
   

  	
  $

  	
  10,645,161.34

  	
   

  	
  9.6774194

  	
  %

  
	
  Commerzbank AG

  	
   

  	
  $

  	
  10,645,161.34

  	
   

  	
  9.6774194

  	
  %

  
	
  Fifth Third Bank

  	
   

  	
  $

  	
  7,096,774.08

  	
   

  	
  6.4516128

  	
  %

  
	
  TOTAL

  	
   

  	
  $

  	
  110,000,000.00

  	
   

  	
  100.0

  	
  %

  



 

















 


SCHEDULE  2.01(C)


AGGREGATE COMMITMENT REDUCTION SCHEDULE


 


	
  REDUCTION DATE

  	
   

  	
  SCHEDULED REDUCTION

  
	
  December 22, 2008

  	
   

  	
  2.5% of Aggregate
  Commitment as of the Fourth Amendment Effective Date

  
	
  March 23, 2009

  	
   

  	
  2.5% of Aggregate
  Commitment as of the Fourth Amendment Effective Date

  
	
  June 22, 2009

  	
   

  	
  2.5% of Aggregate
  Commitment as of the Fourth Amendment Effective Date

  
	
  September 21, 2009

  	
   

  	
  2.5% of Aggregate
  Commitment as of the Fourth Amendment Effective Date

  
	
  December 21, 2009

  	
   

  	
  5.0% of Aggregate
  Commitment as of the Fourth Amendment Effective Date

  
	
  Maturity Date

  	
   

  	
  The remaining amount of
  the Aggregate Commitment (if any)

  



 

















 


EXHIBIT D


COMPLIANCE CERTIFICATE