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,
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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
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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.
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(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.
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(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.
