EXHIBIT NO. 10.1
ASSUMPTION AND CONSENT AGREEMENT
THIS ASSUMPTION AND CONSENT AGREEMENT ("Assumption Agreement") is made
as of the 1st day of April, 2002, by and among BRANCH BANKING AND TRUST COMPANY
(herein referred to as the "Assuming Lender"), MTR GAMING GROUP, INC., a
Delaware corporation, MOUNTAINEER PARK, INC., a West Virginia corporation,
SPEAKEASY GAMING OF LAS VEGAS, INC., a Nevada corporation, SPEAKEASY GAMING OF
RENO, INC., a Nevada corporation and PRESQUE ISLE DOWNS, INC., a Pennsylvania
corporation (collectively the "Borrowers") and XXXXX FARGO BANK, National
Association, in its capacity as Agent Bank as described hereinbelow.
R E C I T A L S:
A. Reference is made to that certain Amended and Restated Credit
Agreement, dated as of August 15, 2000, as amended by First Amendment to Amended
and Restated Credit Agreement dated as of July 30, 2001 and as further amended
by Second Amendment to Amended and Restated Credit Agreement dated as of October
16, 2001 (as may be further amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), by and among Borrowers, the Banks therein
named and Xxxxx Fargo Bank, National Association, as administrative and
collateral agent for the Banks (herein, in such capacity, called the "Agent
Bank").
B. In this Assumption Agreement, all capitalized words and terms not
otherwise defined herein shall have the respective meanings to be construed
herein as provided in Section 1.01 of the Credit Agreement and any reference to
a provision of the Credit Agreement shall be deemed to incorporate such
provision as a part hereof in the same manner and with the same effect as if the
same were fully set forth herein.
C. The Second Increase Effective Date occurred as of October 30,
2001, on which date the Aggregate Commitment was increased from Sixty-Seven
Million Five Hundred Thousand Dollars ($67,500,000.00) to Seventy-Five Million
Dollars ($75,000,000.00).
D. Pursuant to Section 2.01(d) of the Credit Agreement, Borrowers
desire to further increase the Aggregate Commitment from Seventy-Five Million
Dollars ($75,000,000.00) to Eighty-Five Million Dollars ($85,000,000.00), an
increase of Ten Million Dollars ($10,000,000.00) (the "Commitment Increase").
E. Assuming Lender is willing to commit to advance the full amount
of the Commitment Increase, so that as of the Effective Date, as hereinafter
defined, Assuming Lender shall hold the respective Pro Rata Share of the
Aggregate
Commitment as increased by the Commitment Increase and the respective
Syndication Interest in the Revolving Credit Facility set forth below (the
"Assumed Interest"):
PROPORTIONATE
PRO RATA SHARE OF SYNDICATION INTERESTS
AMOUNT OF COMMITMENT AGGREGATE COMMITMENT AFTER COMMITMENT
NAME OF ASSUMING LENDER INCREASE AFTER COMMITMENT INCREASE INCREASE
-------------------------- -------------------------- --------------------------- -------------------------
Branch Banking and Trust $ 10,000,000.00 $ 10,000,000.00 11.7647059%
Company
========================== ========================== =========================== =========================
F. This Assumption Agreement is made, executed and delivered
pursuant to Section 2.01(d) of the Credit Agreement and shall also constitute
the assumption by and delegation to Assuming Lender of the Syndication Interest
particularly described hereinbelow.
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 as follows:
1. From and after the Effective Date, Assuming Lender shall and does
hereby assume and agree to perform all of the promises and covenants of a Lender
as to the Assumed Interest arising or performable from and after the Effective
Date and does further agree to assume and be bound by each and every term,
condition, provision and covenant contained in the Credit Agreement and each of
the Loan Documents, effective as of the Effective Date, to the same extent and
manner as if such Assuming Lender had originally been named in the Credit
Agreement as a Lender holding the Assumed Interest therein and Assuming Lender
shall be deemed to be a Lender party to the Credit Agreement for all purposes
thereof.
2. The "Effective Date" as used herein shall mean April 4, 2002,
provided that each of the following conditions precedent have been satisfied on
or before the Effective Date: (a) Assuming Lender, Borrowers and Agent Bank have
executed sufficient duplicate originals of this Assumption Agreement for each of
the Assuming Lender, Borrowers and Agent Bank and each of such originals have
been delivered to Agent Bank, (b) Borrowers have executed and delivered to Agent
Bank, on behalf of the Lenders, a restatement of the Revolving Credit Note
payable to the order of Agent Bank on behalf of the Lenders, in the principal
amount of Eighty-Five Million Dollars ($85,000,000.00), (c) the Borrowers have
executed and delivered to Agent Bank such amendments, supplements, restatements
and modifications to the Security Documentation as Agent Bank reasonably
requests and in a form and content acceptable to Agent Bank, for the purpose of
securing repayment of the Commitment
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Increase and the restated Revolving Credit Note, (d) Title Company has committed
to issue, at Borrowers' expense, its modified 110.10 (or other appropriate
endorsement) endorsement to the Title Insurance Policies increasing coverage
thereunder by an additional Ten Million Dollars ($10,000,000.00), (e) each
Lender realizing a decrease in its respective Syndication Interest has received
from Agent Bank such amount as is necessary to adjust such Lender's Pro Rata
Share of the Funded Outstandings as of the Effective Date equal to such Lender's
Syndication Interest as set forth on the Schedule of Lenders' Proportions in
Revolving Credit Facility as of April 4, 2002, attached hereto, (f) Assuming
Lender has delivered to Agent Bank an amount representing its Pro Rata Share of
the Funded Outstandings as of the Effective Date for distribution to the
remaining Lenders in such amounts as are necessary to adjust each such Lenders'
Pro Rata Share of the Funded Outstandings as of the Effective Date to a
percentage equal to the Syndication Interests set forth on the Schedule of
Lenders' Proportions in Revolving Credit Facility as of April 4, 2002, attached
hereto, (g) Agent Bank has received from Borrowers for the account of the
Assuming Lender a non-refundable fee in the amount of Fifty Thousand Dollars
($50,000.00), and (h) Agent Bank has received from Borrowers for the account of
the applicable Lenders, any Breakage Charges due under Section 2.07(c) of the
Credit Agreement. Interest accrued but remaining unpaid on the portion of the
outstanding principal balance under the Revolving Credit Facility shall be
prorated to the Effective Date and disbursed by Agent Bank to Lenders upon
receipt of the next payment of accrued interest under the Revolving Credit Note.
3. On the Effective Date, the respective aggregate Syndication
Interests of the Lenders in the Revolving Credit Facility shall be as set forth
on the Schedule of Lenders' Proportions in Revolving Credit Facility as of April
4, 2002, a copy of which is marked "Schedule 2.01(a)" affixed hereto and by this
reference incorporated herein and made a part hereof, which shall restate the
Schedule of Lenders' Proportions in Revolving Credit Facility attached as
Schedule 2.01(a) to the Credit Agreement, and all previous amendments and
restatements thereof, for the purpose of showing the Commitment Increase, the
adjustment of the respective Syndication Interests held by each of the Lenders
and evidencing each Assuming Lender's applicable Syndication Interest in the
Revolving Credit Facility on and after the Effective Date.
4. Agent Bank, on behalf of itself and each of the Lenders, makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made by Borrowers in or in connection
with the Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, the Loan Documents or
any other instrument or document furnished pursuant thereto. Agent Bank, on
behalf of itself and each of the Lenders, makes no representation or warranty in
connection with, and assumes no responsibility with respect to, the solvency,
financial condition or statements of the Borrowers or the performance or
observance by the Borrowers of any
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of their respective obligations under the Credit Agreement, the Loan Documents
or any other instrument or document furnished in connection therewith.
5. Assuming Lender represents and warrants on behalf of itself that:
a. (i) it is duly organized and existing and it has full power
and authority to take, and has taken, all action necessary to execute and
deliver this Assumption Agreement and any other documents required to be
executed or delivered by it in connection with this Assumption Agreement, and to
fulfill its obligations hereunder; (ii) no notices to, or consents,
authorizations or approvals of, any person are required (other than any already
given or obtained) for its due execution, delivery and performance of this
Assumption Agreement; and apart from any agreements or undertakings or filings
required by the Credit Agreement, no further action by, or notice to, or filing
with, any person is required of it for such execution, delivery or performance;
(iii) this Assumption Agreement has been fully executed and delivered by it and
constitutes its legal, valid and binding obligations, enforceable against it in
accordance with the terms hereof, subject, as to enforcement, to bankruptcy,
insolvency, moratorium, reorganization and other laws of general application
relating to or affecting creditors' rights and to general equitable principles;
and (iv) it is eligible under the Credit Agreement to be a Lender in accordance
with the terms hereof.
b. (i) under applicable law and treaties no tax will be
required to be withheld by Borrowers or any Bank with respect to any payments to
be made to such Assuming Lender under the Credit Agreement, (ii) it agrees to
furnish (if it is organized under the laws of any jurisdiction other than the
United States or any State thereof) to the Agent Bank and the Borrowers prior to
the time that the Agent Bank or Borrowers are required to make any payment of
principal, interest or fees hereunder, duplicate executed original of either
U.S. Internal Revenue Service Form W-8BEN or U.S. Internal Revenue Service Form
W-8ECI (wherein the Assuming Lender claims entitlement to the benefits of a tax
treaty that provides for a complete exemption from U.S. federal income
withholding tax on all payments hereunder) and agrees to provide new Forms
W-8BEN or W-8ECI upon the expiration of any previously delivered form or
comparable statements in accordance with applicable U.S. law and regulations and
amendments thereto, duly executed and completed by the Assuming Lender, and
(iii) it agrees to comply with all applicable U.S. laws and regulations with
regard to such withholding tax exemption.
6. Borrowers represent and warrant as of the Effective Date that:
a. the representations and warranties contained in Article IV
of the 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 Effective Date in all material respects as
though such representations and
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warranties had been made on and as of the 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(a)(ii) of the 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; and
c. no event has occurred and is continuing which constitutes a
Default or Event of Default under the terms of the Credit Agreement.
7. Assuming Lender (a) acknowledges that it has received a copy of
the Credit Agreement and the Loan Documents, together with copies of the most
recent financial statements referred to in Section 5.08 of the Credit Agreement,
and such other documents and information as it has deemed appropriate to make
its own credit and legal analysis and decision to enter into this Assumption
Agreement; (b) agrees that it will, independently and without reliance upon the
Agent Bank or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit and legal
decisions in taking or not taking action under the Credit Agreement; and (c)
appoints and authorizes the Agent Bank to take such action as agent on its
behalf and to exercise such powers under the Credit Agreement as are delegated
to the Agent Bank by the terms thereof, together with such powers as are
reasonably incidental thereto.
8. Assuming Lender hereby advises Borrowers and Agent Bank of the
following administrative details:
a. Credit/Business Matters:
Xxx Xxxxxx
Vice President - Corporate Banking
000 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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b. Operations/Administration:
Xxx Xxxxxx
000 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
c. Payment Instructions:
Branch Banking and Trust Company
000 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
ABA #000000000
CR: 9570137147
Attn: Xxx Xxxxxx
Ref: MTR Gaming
9. This Assumption Agreement may be signed in any number of
counterparts, and signatures to all counterparts thereto, when assembled
together, shall constitute signatures to this entire agreement with the same
effect as if all signatures were on the same document.
10. This Assumption Agreement shall be governed by and construed in
accordance with the internal laws of the State of
Nevada without regard to
principles of conflicts of law. Borrowers further agree that the full and
exclusive forum for the determination of any action relating to this Assumption
Agreement, the Loan Documents, or any other document or instrument delivered in
favor of Banks pursuant to the terms hereof shall be either an appropriate Court
of the State of
Nevada or the United States District Court or United States
Bankruptcy Court for the District of
Nevada.
11. Any amendment or waiver of any provision of this Assumption
Agreement shall be in writing and signed by the parties hereto. No failure or
delay by either party hereto in exercising any right, power or privilege
hereunder shall operate as a waiver thereof and any waiver of any breach of the
provisions of this Assumption Agreement shall be without prejudice to any rights
with respect to any other or further breach thereof.
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IN WITNESS WHEREOF, the parties hereto have executed the foregoing
Assumption Agreement as of the day and year first above written.
MTR GAMING GROUP, INC., a
Delaware corporation,
MOUNTAINEER PARK, INC., a West
Virginia corporation, SPEAKEASY
GAMING OF LAS VEGAS, INC., a
Nevada corporation, SPEAKEASY
GAMING OF RENO, INC., a
Nevada
corporation and PRESQUE ISLE
DOWNS, INC., a Pennsylvania
corporation
Name: /s/ Xxxxx X. Xxxxxxxx
---------------------
Xxxxx X. Xxxxxxxx,
President and
Authorized Officer
AGENT BANK:
XXXXX FARGO BANK,
National Association
By: /s/ Xxxxxxxx X. Xxxxxxxxxxx
---------------------------
Name: Xxxxxxxx X. Xxxxxxxxxxx
Title: Vice President
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ASSUMING LENDER:
BRANCH BANKING AND TRUST
COMPANY
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President, Corporate
Banking
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