EXHIBIT 10.9
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT ("Second Amendment")
is made and entered into as of the 31st day of July, 2000, by and among MTR
GAMING GROUP, INC., a Delaware corporation ("MTRI"), MOUNTAINEER PARK, INC., a
West Virginia corporation ("MPI"), SPEAKEASY GAMING OF LAS VEGAS, INC., a Nevada
corporation ("SGLVI") and SPEAKEASY GAMING OF RENO, INC., a Nevada corporation
("SGRI" and together with MTRI, MPI and SGLVI, collectively referred to as the
"Borrowers") and WELLS FARGO BANK, National Association, as Lender and as the
administrative and collateral agent for the Lenders (herein in such capacity
called the "Agent Bank" and, together with the Lenders, collectively referred to
as the "Banks").
R E C I T A L S:
WHEREAS:
A. Borrowers, Agent Bank and Lender entered into a Credit
Agreement dated as of December 20, 1999 (the "Original Credit Agreement") as
amended by First Amendment to Credit Agreement dated as of June 1, 2000 (the
"First Amendment" and together with the Original Credit Agreement, collectively
the "Existing Credit Agreement") for the purpose of establishing a reducing
revolving credit facility in favor of Borrowers in the initial maximum principal
amount of Thirty-Eight Million Five Hundred Thousand Dollars ($38,500,000.00).
B. For the purpose of this Second Amendment, all capitalized
words and terms not otherwise defined herein shall have the respective meanings
and be construed herein as provided in Section 1.01 of the Existing Credit
Agreement and any reference to a provision of the Existing Credit Agreement
shall be deemed to incorporate that provision as a part hereof, in the same
manner and with the same effect as if the same were fully set forth herein.
C. Borrowers desire to further amend the Existing Credit
Agreement for the purpose of extending the August 1, 2000 Scheduled Reduction in
the amount of Ten Million Dollars from August 1, 2000 to September 1, 2000.
D. Banks have agreed to extend the August 1, 2000 Scheduled
Reduction to September 1, 2000 subject to the terms, conditions and provisions
set forth in this Second Amendment.
NOW, THEREFORE, in consideration of the foregoing and other
good and valuable considerations, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto do agree to the amendments and
modifications to the Existing Credit
Agreement in each instance effective as of the Second Amendment Effective Date,
as specifically hereinafter provided as follows:
1. DEFINITIONS. Section 1.01 of the Existing Credit Agreement
entitled "Definitions" shall be and is hereby amended to include the following
definitions. Those terms which are currently defined by Section 1.01 of the
Existing Credit Agreement and which are also defined below shall be superseded
and restated by the applicable definition set forth below:
"Aggregate Commitment" shall mean reference to the aggregate
amount committed by Lenders for advance to or on behalf of Borrowers as
Borrowings under the Credit Facility in the principal amount of Thirty-Eight
Million Five Hundred Thousand Dollars ($38,500,000.00), as of the Second
Amendment Effective Date and continuing until September 1, 2000, and on
September 1, 2000, reduced to the principal amount of Twenty-Eight Million Five
Hundred Thousand Dollars ($28,500,000.00) and thereafter as reduced on each
Reduction Date by the Scheduled Reductions to the Maximum Scheduled Balance, and
further subject to the additional reductions and/or limitations for advance as
set forth or incorporated in the definition of Maximum Permitted Balance.
"Aggregate Commitment Reduction Schedule" shall mean the
Aggregate Commitment Reduction Schedule marked "Schedule 2.01(c)", affixed to
the Second Amendment and by this reference incorporated herein and made a part
hereof, setting forth the Scheduled Reductions and Maximum Scheduled Balance as
of each Reduction Date under the Credit Facility, which shall fully supercede
and restate the Schedule 2.01(c) affixed to the Existing Credit Agreement.
"Credit Agreement" shall mean the Existing Credit Agreement as
amended by the Second Amendment, together with all Schedules, Exhibits and other
attachments thereto, as it may be further amended, modified, extended, renewed
or restated from time to time.
"Existing Credit Agreement" shall have the meaning set forth
in Recital Paragraph A of the Second Amendment.
"First Amendment" shall have the meaning set forth in Recital
Paragraph A of the Second Amendment.
"Maximum Scheduled Balance" shall mean the maximum amount of
scheduled principal which may be outstanding on the Credit Facility from time to
time in the amount of Thirty-Eight Million Five Hundred Thousand Dollars
($38,500,000.00) as of the Second Amendment Effective Date through September 1,
2000 and thereafter in the amount of Twenty-Eight Million Five Hundred Thousand
($28,500,000.00), as further
2
reduced from time to time by the Scheduled Reductions as set forth on the
Aggregate Commitment Reduction Schedule.
"Note" shall mean the Revolving Credit Note (Second Restated),
a copy of which is marked "Exhibit A", affixed to the Second Amendment and by
this reference incorporated herein and made a part hereof, executed by Borrowers
on or before the Second Amendment Effective Date, payable to the order of Agent
Bank on behalf of the Lenders, evidencing the Credit Facility, as the same may
be amended, modified, supplemented, replaced, renewed or restated from time to
time.
"Second Amendment" shall mean the Second Amendment to Credit
Agreement.
"Second Amendment Effective Date" shall mean July 31, 2000.
2. REVISION OF REDUCTION SCHEDULE. As of the Second Amendment
Effective Date, the Aggregate Commitment Reduction Schedule shall be fully
amended and restated by the Aggregate Commitment Reduction Schedule attached to
the Second Amendment as Schedule 2.01(c).
3. CONDITIONS PRECEDENT TO FIRST AMENDMENT EFFECTIVE DATE.
The occurrence of the Second Amendment Effective Date is subject to Agent Bank
having received the following documents and payments, in each case in a form and
substance reasonably satisfactory to Agent Bank, and the occurrence of each
other condition precedent set forth below on or before July 31, 2000:
a. Due execution by Borrowers and Banks of four (4)
duplicate originals of this Second Amendment;
b. Due execution by Borrowers of the original Revolving
Credit Note (Second Restated);
c. Reimbursement to Agent Bank by Borrowers for all
reasonable fees and out-of-pocket expenses incurred by Agent Bank in connection
with the Commitment Increase, including, but not limited to, reasonable
attorneys' fees of Henderson & Morgan, LLC and all other like expenses remaining
unpaid as of the Second Amendment Effective Date; and
3
d. Such other documents, instruments or conditions as may
be reasonably required by Lenders.
4. REPRESENTATIONS OF BORROWERS. Borrowers hereby represent to
the Banks that:
a. The representations and warranties contained in
Article IV of the Existing Credit Agreement and contained in each of the other
Loan Documents (other than representations and warranties which expressly speak
only as of a different date, which shall be true and correct in all material
respects as of such date) are true and correct on and as of the Second Amendment
Effective Date in all material respects as though such representations and
warranties had been made on and as of the Second Amendment Effective Date,
except to the extent that such representations and warranties are not true and
correct as a result of a change which is permitted by the Credit Agreement or by
any other Loan Document or which has been otherwise consented to by Agent Bank;
b. Since the date of the most recent financial statements
referred to in Section 5.08 of the Existing Credit Agreement, no Material
Adverse Change has occurred and no event or circumstance which could reasonably
be expected to result in a Material Adverse Change has occurred;
c. After giving effect to the Second Amendment, no event
has occurred and is continuing which constitutes a Default or Event of Default
under the terms of the Credit Agreement; and
d. The execution, delivery and performance of this
Second Amendment has been duly authorized by all necessary action of Borrowers
and this Second Amendment constitutes a valid, binding and enforceable
obligation of Borrowers.
5. INCORPORATION BY REFERENCE. This Second Amendment shall be
and is hereby incorporated in and forms a part of the Existing Credit Agreement.
6. GOVERNING LAW. This Second Amendment shall be governed by
the internal laws of the State of Nevada without reference to conflicts of laws
principles.
7. COUNTERPARTS. This Second Amendment may be executed in any
number of separate counterparts with the same effect as if the signatures hereto
and hereby were upon the same instrument. All such counterparts shall together
constitute one and the same document.
4
8. CONTINUANCE OF TERMS AND PROVISIONS. All of the terms and
provisions of the Existing Credit Agreement shall remain unchanged except as
specifically modified herein.
9. ADDITIONAL/REPLACEMENT SCHEDULES AND EXHIBITS ATTACHED. The
following additional and replacement Schedules and Exhibits are attached hereto
and incorporated herein and made a part of the Credit Agreement as follows:
Schedule 2.01(c) - Aggregate Commitment Reduction Schedule
Exhibit A - Revolving Credit Note (Second Restated) - Form
5
IN WITNESS WHEREOF, the parties hereto have executed this
Second Amendment as of the day and year first above written.
BORROWERS:
MTR GAMING GROUP, INC.,
a Delaware corporation
By /s/ Edson R. Arneault
-----------------------------
Edson R. Arneault,
President
MOUNTAINEER PARK, INC.,
a West Virginia corporation
By /s/ Edson R. Arneault
-----------------------------
Edson R. Arneault,
President
SPEAKEASY GAMING OF LAS VEGAS,
INC., a Nevada corporation
By /s/ Edson R. Arneault
-----------------------------
Edson R. Arneault,
President
SPEAKEASY GAMING OF RENO,
INC., a Nevada corporation
By /s/ Edson R. Arneault
-----------------------------
Edson R. Arneault,
President
6
BANKS:
WELLS FARGO BANK,
National Association,
Agent Bank and Lender
By /s/ Virginia Christenson
-----------------------------
Virginia Christenson,
Assistant Vice President
7