EX-10.1 3 d881673dex101.htm EX-10.1 EX-10.1

Exhibit 10.1

Execution Version

INCREMENTAL JOINDER AGREEMENT NO. 6 AND

SIXTH AMENDMENT TO CREDIT AGREEMENT

This INCREMENTAL JOINDER AGREEMENT NO. 6 AND SIXTH AMENDMENT TO CREDIT AGREEMENT (this “Sixth Amendment”), dated as of February 7, 2020 and effective as of the Effective Date (as hereinafter defined), is made and entered into by and among STATION CASINOS LLC, a Nevada limited liability company (the “Borrower”), the GUARANTORS party hereto, RED ROCK RESORTS, INC. (“RRR”), STATION HOLDCO LLC (“Holdco”, and together with the Borrower, the Guarantors party hereto and RRR, the “Station Parties”), each of the INCREMENTAL REVOLVING FACILITY LENDERS (as hereinafter defined) party hereto, each of the EXTENDING REVOLVING LENDERS (as hereinafter defined) party hereto, each of the EXTENDING TERM A-4 FACILITY LENDERS (as hereinafter defined) party hereto, each of the EXTENDING TERM B FACILITY LENDERS (as hereinafter defined) party hereto, each of the L/C LENDERS (as hereinafter defined) party hereto, the SWINGLINE LENDER party hereto and DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH, as administrative agent under the Existing Credit Agreement referred to below (together with its successors and assigns in such capacity, the “Administrative Agent”).

RECITALS:

WHEREAS, reference is hereby made to the Credit Agreement, dated as of June 8, 2016 (as amended by that certain First Amendment to Credit Agreement, dated as of January 30, 2017, that certain Incremental Joinder Agreement, dated as of January 30, 2017, that certain Second Amendment to Credit Agreement, dated as of April 5, 2017, that certain Incremental Joinder Agreement No. 2 and Third Amendment to Credit Agreement, dated as of May 2, 2017, that certain Incremental Joinder Agreement No. 3, dated as of May 10, 2017, that certain Incremental Joinder Agreement No. 4 and Fourth Amendment to Credit Agreement, dated as of September 21, 2017, and that certain Incremental Joinder Agreement No. 5 and Fifth Amendment to Credit Agreement, dated as of February 8, 2019, and as it may be further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Existing Credit Agreement”), among the Borrower, the Guarantors, the banks, financial institutions and other entities from time to time party thereto as lenders (including the L/C Lenders and the Swingline Lender), Administrative Agent, Deutsche Bank AG Cayman Islands Branch, as collateral agent, and the other parties thereto;

WHEREAS, pursuant to Section 13.04(a)(vii) of the Existing Credit Agreement, the Required Pro Rata Lenders may amend, waive or modify any provision of Section 10.08 of the Existing Credit Agreement;

WHEREAS, pursuant to Section 2.15 of the Existing Credit Agreement, the Borrower has requested that those certain financial institutions party hereto and listed on Schedule D hereto (the “Extending Term B Facility Lenders”) provide in the aggregate $1,533,174,118.00 in Other Term Loan Commitments (the “Term B-1 Facility Loan Commitments” and the loans made thereunder, the “Term B-1 Facility Loans”);


WHEREAS, the Borrower has requested that the Lenders party hereto agree to amend the Existing Credit Agreement subject to and in accordance with the terms and conditions set forth herein to, among other things, (i) provide for the amendment and extension of the existing Term A-4 Facility Loans held by each Extending Term A-4 Facility Lender to have the terms and conditions set forth for (and to be designated as) the Term A-5 Facility Loans in this Sixth Amendment and the Amended Credit Agreement (as defined below), and (ii) provide for the amendment and extension of (x) the existing Fifth Amendment Revolving Commitments (and Revolving Loans thereunder) held by each Extending Revolving Lender party hereto and (y) the Incremental Revolving Facility Commitments provided hereunder by the Incremental Revolving Facility Lenders, to have the terms and conditions set forth for (and to be designated as) the Sixth Amendment Revolving Commitments in this Sixth Amendment and the Amended Credit Agreement;

WHEREAS, pursuant to Section 13.04(b), the Borrower may either (i) require any existing Term A-4 Facility Lender and existing Revolving Lender holding Fifth Amendment Revolving Commitments that does not consent to this Sixth Amendment to assign all of its existing Term A-4 Facility Loans and existing Fifth Amendment Revolving Commitments (and Revolving Loans thereunder) to one or more Replacement Lenders or (ii) terminate the Commitment and/or repay the Loans of any existing Term A-4 Facility Lender and existing Revolving Lender holding Fifth Amendment Revolving Commitments that does not consent to this Sixth Amendment;

WHEREAS, immediately upon giving effect to the amendment of the Term A-4 Facility Loans into the Term A-5 Facility Loans, the amendment of the Fifth Amendment Revolving Commitments into the Sixth Amendment Revolving Commitments and the refinancing of a portion of the Term B Facility Loans with the proceeds of the Term B-1 Facility Loans pursuant to this Sixth Amendment, the Borrower desires to voluntarily terminate all of the existing Closing Date Revolving Commitments and voluntarily repay in full all of the existing Term A-3 Facility Loans, all of the existing Term A-4 Facility Loans that are not amended into Term A-5 Facility Loans and all of the existing Term B Facility Loans that are not refinanced with the proceeds of the incurrence of the Term B-1 Facility Loans;

WHEREAS, pursuant to Section 2.12 of the Existing Credit Agreement as amended and consented by this Sixth Amendment, the Borrower has requested that those certain financial institutions party hereto and listed on Schedule A hereto (the “Incremental Revolving Facility Lenders”) provide in the aggregate $258,268,956.97 in Incremental Existing Tranche Revolving Commitments having the same terms as the Sixth Amendment Revolving Commitments established under this Sixth Amendment (the “Incremental Revolving Facility Commitments” and the loans made thereunder, the “Incremental Revolving Facility Loans”);

WHEREAS, each Incremental Revolving Lender, Extending Revolving Lender, Extending Term A-4 Facility Lender, Extending Term B Facility Lender, L/C Lender and Swingline Lender party hereto and the Administrative Agent is willing, on the terms and subject to the conditions set forth below, to enter into this Sixth Amendment and to consent to the amendments of and waivers under this Sixth Amendment, including the Amended Credit Agreement described herein.

NOW, THEREFORE, in consideration of the premises and agreements, provisions and covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

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ARTICLE I

DEFINITIONS

SECTION 1.1 Definitions. Except as otherwise expressly provided herein, capitalized terms used in this Sixth Amendment (including in the Recitals and the introductory paragraph above) shall have the meanings given in the Amended Credit Agreement (as defined below), and the rules of construction set forth in the Amended Credit Agreement shall apply to this Sixth Amendment.

ARTICLE II

AMENDMENTS TO CREDIT AGREEMENT

SECTION 2.1 Amendments to Existing Credit Agreement.

(a)       Subject to the conditions and upon the terms set forth in this Sixth Amendment and in reliance on the representations and warranties of the Station Parties set forth in this Sixth Amendment, the Borrower, the other Station Parties, each of the Incremental Revolving Facility Lenders, L/C Lenders, Swingline Lender, Extending Revolving Lenders, Extending Term A-4 Facility Lenders and Extending Term B Lenders party hereto and the Administrative Agent agree that on the Effective Date, simultaneously with the effectiveness of the provisions of Articles III, IV, V, VI and VII below, the Existing Credit Agreement shall be amended as set forth in Exhibit A attached hereto (double underlining indicates new language and strikethrough indicates language that has been deleted) (the Existing Credit Agreement, as so amended by this Sixth Amendment, the “Amended Credit Agreement”).

(b)       The corresponding Annexes, Exhibits and Schedules to the Existing Credit Agreement are hereby restated as set forth in the Amended Credit Agreement.

ARTICLE III

AGREEMENT TO MODIFY TERM A-4 FACILITY LOANS INTO TERM A-5

FACILITY LOANS

SECTION 3.1 Term Loans Modified. Each Term A-4 Facility Lender party hereto (each such Term A-4 Facility Lender with respect to its Extending Term A-4 Facility Loans (as defined below), an “Extending Term A-4 Facility Lender”) hereby severally agrees that effective on the Effective Date, the existing Term A-4 Facility Loans of such Extending Term A-4 Facility Lender in the amount set forth on Schedule B hereto (such Term A-4 Facility Loans, the “Extending Term A-4 Facility Loans”) shall automatically, and without further action by such Extending Term A-4 Facility Lender, be modified to be designated as the “Term A-5 Facility Loans” having the terms and conditions set forth therefor in this Sixth Amendment and the Amended Credit Agreement. On the Effective Date, the Administrative Agent shall revise the Register to reflect the modification of the Extending Term A-4 Facility Loans of the Extending Term A-4 Facility Lenders into Term A-5 Facility Loans.

 

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SECTION 3.2 Agreements of Extending Term A-4 Facility Lenders. Each Extending Term A-4 Facility Lender acknowledges and agrees that upon its execution of this Sixth Amendment that (i) such Extending Term A-4 Facility Lender shall on and as of the Effective Date, but solely with respect to its Extending Term A-4 Facility Loans, become a “Term A-5 Facility Lender” under, and for all purposes of, the Amended Credit Agreement and the other Credit Documents, shall be subject to and bound by the terms thereof, shall perform all the obligations of and shall have all rights of a Lender thereunder, and (ii) all of its Extending Term A-4 Facility Loans shall automatically, and without further action by such Extending Term A-4 Facility Lender, be modified to Term A-5 Facility Loans and have all of the terms therefor set forth in this Sixth Amendment and the Amended Credit Agreement. Each Extending Term A-4 Facility Lender has delivered herewith to the Borrower and the Administrative Agent such forms, certificates or other evidence with respect to United States federal income tax withholding matters as such Extending Term A-4 Facility Lender may be required to deliver to the Borrower and the Administrative Agent pursuant to Section 5.06 of the Amended Credit Agreement.

ARTICLE IV

ARTICLE IV

AGREEMENT TO MODIFY FIFTH AMENDMENT REVOLVING COMMITMENTS

INTO SIXTH AMENDMENT REVOLVING COMMITMENTS

SECTION 4.1 Revolving Commitments Modified. Each Revolving Lender party hereto (each such Revolving Lender with respect to its Extending Revolving Commitments (as defined below), an “Extending Revolving Lender”) hereby severally agrees that effective on the Effective Date, the existing Fifth Amendment Revolving Commitments of such Extending Revolving Lender in the amount forth on Schedule C hereto (such Fifth Amendment Revolving Commitments, the “Extending Revolving Commitments”) shall automatically, and without further action by such Extending Revolving Lender, be modified to be designated as the “Sixth Amendment Revolving Commitments” having the terms and conditions set forth therefor in this Sixth Amendment and the Amended Credit Agreement. On the Effective Date, the Administrative Agent shall revise the Register to reflect the modification of the Extending Revolving Commitments (and Revolving Loans thereunder) of the Extending Revolving Lenders into Sixth Amendment Revolving Commitments (and Revolving Loans thereunder).

SECTION 4.2 Agreements of Extending Revolving Lenders. Each Extending Revolving Lender acknowledges and agrees that upon its execution of this Sixth Amendment that (i) such Extending Revolving Lender shall on and as of the Effective Date, but solely with respect to its Extending Revolving Commitments, become a “Sixth Amendment Extending Revolving Lender” under, and for all purposes of, the Amended Credit Agreement and the other Credit Documents, shall be subject to and bound by the terms thereof, shall perform all the obligations of and shall have all rights of a Lender thereunder, and (ii) all of its Extending Revolving Commitments (and Revolving Loans thereunder) shall automatically, and without further action by such Extending Revolving Lender, be modified to Sixth Amendment Revolving Commitments (and Revolving Loans thereunder) and have all of the terms therefor set forth in this Sixth Amendment and the

 

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Amended Credit Agreement. Each Extending Revolving Lender has delivered herewith to the Borrower and the Administrative Agent such forms, certificates or other evidence with respect to United States federal income tax withholding matters as such Extending Revolving Lender may be required to deliver to the Borrower and the Administrative Agent pursuant to Section 5.06 of the Amended Credit Agreement.

SECTION 4.3 Consent of L/C Lenders and Swingline Lender. Each L/C Lender and each Swingline Lender hereby consents to the extension and modification of the Extending Revolving Commitments of the Extending Revolving Lenders into Sixth Amendment Revolving Commitments as set forth in this Sixth Amendment and the Amended Credit Agreement.

ARTICLE V

AGREEMENT TO PROVIDE TERM B-1 FACILITY LOAN COMMITMENTS

SECTION 5.1 Agreement to Provide Term B-1 Facility Loan Commitments. Pursuant to Section 2.15 of the Existing Credit Agreement, each Extending Term B Facility Lender hereby agrees, severally and not jointly, to provide its respective Term B-1 Facility Loan Commitment as set forth on Schedule D annexed hereto on the terms set forth in this Sixth Amendment, and its Term B-1 Facility Loan Commitment shall be binding as of the Effective Date.

SECTION 5.2 Other Term Loans. The Term B-1 Facility Loan Commitment of each Extending Term B Facility Lender is in addition to such Extending Term B Facility Lender’s existing Loans and Commitments under the Existing Credit Agreement, if any (which shall continue under and be subject in all respects to the Amended Credit Agreement), and, immediately after giving effect to the amendments contemplated hereby, will be subject in all respects to the terms of the Amended Credit Agreement (and, in each case, the other Credit Documents).

SECTION 5.3 Term B-1 Facility Loan Commitments.

(a)       This Sixth Amendment represents the Borrower’s request for Term B-1 Facility Loan Commitments to be provided on the terms set forth herein on the Effective Date and for the Term B-1 Facility Loans to be made thereunder on the Effective Date in accordance with the Amended Credit Agreement.

(b)       The Term B-1 Facility Loan Commitments may be drawn on the Effective Date in accordance with Section 2.01(i) of the Amended Credit Agreement and shall terminate as set forth in Section 2.04(a)(viii) of the Amended Credit Agreement. The Term B-1 Facility Loans borrowed under the Term B-1 Facility Loan Commitments shall be repaid in accordance with Section 3.01(c) of the Amended Credit Agreement.

(c)       The proceeds of the Term B-1 Facility Loans made on the Effective Date shall be applied on the Effective Date to refinance in part the existing Term B Facility Loans.

 

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ARTICLE VI

TERMINATION OF COMMITMENTS AND PREPAYMENT OF LOANS

SECTION 6.1 Termination of Closing Date Revolving Commitments. Immediately upon the effectiveness of the provisions of Articles III, IV, V and VI, the Borrower hereby voluntarily terminates all of the Closing Date Revolving Commitments effective as of the Effective Date.

SECTION 6.2 Prepayment of Term A-3 Facility Loans. Immediately upon the effectiveness of the provisions of Articles III, IV, V and VI, the Borrower shall voluntarily prepay in full (without any premium or penalty) all of the outstanding Term A-3 Facility Loans on the Effective Date.

SECTION 6.3 Prepayment of Term A-4 Facility Loans. Immediately upon the effectiveness of the provisions of Articles III, IV, V and VI, the Borrower shall voluntarily prepay in full (without any premium or penalty) all of the outstanding Term A-4 Facility Loans that are not Extending Term A-4 Facility Loans modified into Term A-5 Facility Loans on the Effective Date.

SECTION 6.4 Prepayment of Term B Facility Loans. Immediately upon the effectiveness of the provisions of Articles III, IV, V and VI, the Borrower shall voluntarily prepay in full (without any premium or penalty) all of the outstanding Term B Facility Loans that are not refinanced with the proceeds of the Term B-1 Facility Loans on the Effective Date.

SECTION 6.5 Lender Consents. Each of the Lenders party hereto consents to each of the terminations and prepayments set forth in this Article VII, notwithstanding anything to the contrary in the Existing Credit Agreement.

ARTICLE VII

AGREEMENT TO PROVIDE INCREMENTAL REVOLVING FACILITY

COMMITMENTS

SECTION 7.1 Consent to Incurrence of Incremental Revolving Commitments. Each Lender party hereto that was a Lender immediately prior to the Effective Date and the Extending Term B Facility Lenders, which collectively constitute the Required Lenders under the Existing Credit Agreement as amended by this Sixth Amendment immediately after giving effect to Articles II, IV, V and VI hereof and prior to giving effect to this Article VII, hereby consent to the terms of this Article VII.

SECTION 7.2 Agreement to Provide Incremental Revolving Facility Commitments. Pursuant to Section 2.12 of the Existing Credit Agreement, as amended and consented to under this Sixth Amendment, each Incremental Revolving Facility Lender hereby agrees, severally and not jointly, to provide its respective Incremental Revolving Facility Commitment as set forth on Schedule A annexed hereto on the terms set forth in this Sixth Amendment, and its Incremental Revolving Facility Commitment shall be binding as of the Effective Date.

 

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SECTION 7.3 New Loans and Commitments. The Incremental Revolving Facility Commitment of each Incremental Revolving Facility Lender is in addition to such Incremental Revolving Facility Lender’s existing Loans and Commitments under the Existing Credit Agreement, if any (which shall continue under and be subject in all respects to the Amended Credit Agreement), and, immediately after giving effect to the amendments contemplated hereby, will be Sixth Amendment Revolving Commitments and shall be subject in all respects to the terms of the Amended Credit Agreement (and, in each case, the other Credit Documents).

SECTION 7.4 Incremental Revolving Facility Commitments.

(a)      This Sixth Amendment represents the Borrower’s request for Incremental Revolving Facility Commitments to be provided as additional Sixth Amendment Revolving Commitments on the terms set forth herein on the Effective Date and for the Incremental Revolving Facility Loans to be made thereunder to be funded from time to time after the Effective Date in accordance with the Amended Credit Agreement.

(b)      The Incremental Revolving Facility Commitments may be drawn from time to time after the Effective Date in accordance with Section 2.01(a) of the Amended Credit Agreement and shall terminate as set forth in Section 2.04(a)(iv) of the Amended Credit Agreement. The Incremental Revolving Facility Loans borrowed under the Incremental Revolving Facility Commitments shall be repaid in accordance with Section 3.01(a) of the Amended Credit Agreement. To the extent necessary for the Revolving Loans and participation interests in L/C Liabilities and Swingline Loans to be held by the Revolving Lenders and the Incremental Revolving Facility Lenders ratably in accordance with their respective Revolving Commitments after giving effect to this Sixth Amendment, the Revolving Lenders and Incremental Revolving Facility Lenders shall assign, transfer or purchase, as applicable, interests in the Revolving Loans, L/C Liabilities and Swingline Loans in accordance with Section 2.12(d) of the Amended Credit Agreement as if the Incremental Revolving Facility Commitments were Incremental Revolving Commitments incurred on the Effective Date.

SECTION 7.5 Agreements of Incremental Revolving Facility Lenders. Each Incremental Revolving Facility Lender acknowledges and agrees that upon its execution of this Sixth Amendment that such Incremental Revolving Facility Lender shall on and as of the Effective Date become, or continue to be, a “Revolving Lender” and a “Sixth Amendment Revolving Lender” under, and for all purposes of, the Amended Credit Agreement and the other Credit Documents, shall be subject to and bound by the terms thereof, shall perform all the obligations of and shall have all rights of a Lender thereunder, and shall make available such amount to fund its ratable share of outstanding Incremental Revolving Facility Loans from time to time after the Effective Date in accordance with the Amended Credit Agreement. Each Incremental Revolving Facility Lender has delivered herewith to the Borrower and the Administrative Agent such forms, certificates or other evidence with respect to United States federal income tax withholding matters as such Incremental Revolving Facility Lender may be required to deliver to the Borrower and the Administrative Agent pursuant to Section 5.06 of the Amended Credit Agreement.

 

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ARTICLE VIII

REPRESENTATIONS AND WARRANTIES

To induce (a) the Extending Term A-4 Facility Lenders to modify Term A-4 Facility Loans into Term A-5 Facility Loans, (b) the Incremental Revolving Facility Lenders to provide the Incremental Revolving Facility Commitments, (c) the Extending Revolving Lenders to modify Fifth Amendment Revolving Commitments and Incremental Revolving Facility Commitments into Sixth Amendment Revolving Commitments, (d) the Extending Term B Facility Lenders to provide the Term B-1 Facility Loan Commitments and (e) the L/C Lenders, the Swingline Lender and each Lender party hereto to agree to this Sixth Amendment, the Station Parties represent to the Administrative Agent, the L/C Lenders, the Swingline Lender, the Incremental Revolving Facility Lenders, the Extending Revolving Lenders, the Extending Term A-4 Facility Lenders and the Extending Term B Facility Lenders that, as of the Effective Date and giving effect to all of the transactions occurring on the Effective Date:

SECTION 8.1 Corporate Existence. Borrower and each other Station Party (a) is a corporation, partnership, limited liability company or other entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization; (b)(i) has all requisite corporate or other power and authority, and (ii) has all governmental licenses, authorizations, consents and approvals necessary to own its Property and carry on its business as now being conducted; and (c) is qualified to do business and is in good standing in all jurisdictions in which the nature of the business conducted by it makes such qualification necessary; except, in the case of clauses (b)(ii) and (c) where the failure thereof individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect.

SECTION 8.2 Action; Enforceability. Borrower and each other Station Party has all necessary corporate or other organizational power, authority and legal right to execute, deliver and perform its obligations under this Sixth Amendment and to consummate the transactions herein contemplated; the execution, delivery and performance by Borrower and each other Station Party of this Sixth Amendment and the consummation of the transactions herein contemplated have been duly authorized by all necessary corporate, partnership or other organizational action on its part; and this Sixth Amendment has been duly and validly executed and delivered by each Station Party and constitutes its legal, valid and binding obligation, enforceable against each Station Party in accordance with its terms, except as such enforceability may be limited by (a) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws of general applicability from time to time in effect affecting the enforcement of creditors’ rights and remedies and (b) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

SECTION 8.3 No Breach; No Default.

(a)      None of the execution, delivery and performance by any Station Party of this Sixth Amendment nor the consummation of the transactions herein contemplated do or will (i) conflict with or result in a breach of, or require any consent (which has not been obtained and is in full force and effect) under (x) any Organizational Document of any Station Party or (y) any applicable Requirement of Law (including, without limitation, any

 

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Gaming Law) or (z) any order, writ, injunction or decree of any Governmental Authority binding on any Station Party, or tortiously interfere with, result in a breach of, or require termination of, any term or provision of any Contractual Obligation of any Station Party or (ii) constitute (with due notice or lapse of time or both) a default under any such Contractual Obligation or (iii) result in or require the creation or imposition of any Lien (except for the Liens created pursuant to the Security Documents) upon any Property of any Station Party pursuant to the terms of any such Contractual Obligation, except with respect to (i)(y), (i)(z), (ii) or (iii) which would not reasonably be expected to result in a Material Adverse Effect; and

(b)      No Default or Event of Default has occurred and is continuing.

SECTION 8.4 Credit Document Representations. Each of the representations and warranties made by the Borrower or any of the other Station Parties in or pursuant to the Credit Documents to which such entity is a party, as amended hereby, are true and correct in all material respects as of such date (except to the extent such representations and warranties are qualified by “materiality” or “Material Adverse Effect,” in which case such representations and warranties shall be true and correct in all respects), as applicable, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date (except to the extent such representations and warranties are qualified by “materiality” or “Material Adverse Effect,” in which case such representations and warranties shall be true and correct in all respects)).

ARTICLE IX

CONDITIONS TO THE EFFECTIVE DATE

This Sixth Amendment shall become effective on the date (the “Effective Date”) on which each of the following conditions is satisfied or waived:

SECTION 9.1 Execution of Counterparts. The Administrative Agent shall have received executed counterparts of this Sixth Amendment from (a) each Station Party, (b) the L/C Lenders, (c) the Swingline Lender, (d) the Incremental Revolving Facility Lenders and the Extending Term B Facility Lenders and (e) the Lenders who have consented hereto (constituting collectively the Required Tranche Lenders under the Existing Credit Agreement with respect to the Fifth Amendment Revolving Facility and the Term A-4 Facility prior to giving effect hereto).

SECTION 9.2 Corporate Documents. The Administrative Agent shall have received:

(a)      certified true and complete copies of the Organizational Documents of each Station Party and of all corporate or other authority for each Station Party (including board of directors (or other applicable governing authority) resolutions and evidence of the incumbency, including specimen signatures, of officers) with respect to the execution, delivery and performance of this Sixth Amendment and the extensions of credit hereunder, certified as of the Effective Date as complete and correct copies thereof by the secretary or an assistant secretary of each such Station Party (provided that, in lieu of attaching such

 

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Organizational Documents and/or evidence of incumbency, such certificate may certify that (x) since the Closing Date (or such later date on which the applicable Station Party became party to the Credit Documents), there have been no changes to the Organizational Documents of such Station Party and (y) no changes have been made to the incumbency certificate of the officers of such Station Party delivered on the Closing Date (or such later date referred to above));

(b)      a certificate as to the good standing of each Station Party as of a recent date, from the Secretary of State (or other applicable Governmental Authority) of its jurisdiction of incorporation; and

(c)      a customary closing certificate of a Responsible Officer of the Borrower certifying to the foregoing.

SECTION 9.3 Opinions of Counsel. The Administrative Agent shall have received a favorable written opinion of (i) Milbank LLP, special New York, Delaware and California counsel for the Station Parties, (ii) Brownstein Hyatt Farber Schreck, LLP, local Nevada counsel for the Station Parties and (iii) Reid Rubinstein & Bogatz, gaming counsel for the Station Parties, in each case (A) dated the Effective Date, (B) addressed to Administrative Agent and the Lenders and (C) in a form reasonably satisfactory to Administrative Agent.

SECTION 9.4 Fees, Costs and Expenses. All of the fees payable to the Sixth Amendment Arrangers and the Lenders in connection with this Sixth Amendment in accordance with separate fee letters (if any) entered into by the Borrower and the Sixth Amendment Arrangers and all of the reasonable and documented out-of-pocket costs and expenses (including the reasonable fees, expenses and disbursements of Latham & Watkins LLP and one local counsel in each applicable jurisdiction reasonably deemed necessary by Agents) incurred by the Agents in connection with the negotiation, preparation, execution and delivery of this Sixth Amendment and the transactions contemplated hereby shall have been or concurrently will be paid.

SECTION 9.5 No Default or Event of Default; Representations and Warranties True. Both immediately prior to and immediately after giving effect to this Sixth Amendment and all of the transactions contemplated in connection therewith:

(a)      no Event of Default shall have occurred and be continuing; and

(b)      each of the representations and warranties made by the Station Parties in Article VIII hereof and in Article VI of the Existing Credit Agreement and in Article VI of the Amended Credit Agreement and in each of the other Credit Documents to which it is a party shall be true and correct in all material respects on and as of the Effective Date (it being understood and agreed that any such representation or warranty which by its terms is made as of an earlier date shall be required to be true and correct in all material respects only as such earlier date, and that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on the applicable date).

 

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SECTION 9.6 Flood Insurance Requirements. Administrative Agent shall have received from Borrower (i) a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination with respect to each Mortgaged Real Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by Borrower and the applicable Station Party relating thereto) and (ii) if any portion of any Mortgaged Real Property is located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a special flood hazard area with respect to which flood insurance has been made available under the National Flood Insurance Act of 1968, the applicable Station Party shall have, with a financially sound and reputable insurer (determined at the time such insurance was obtained), flood insurance in an amount and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to such Flood Insurance Laws and deliver evidence of such compliance in form and substance reasonably acceptable to Administrative Agent.

SECTION 9.7 Notice of Borrowing. The Administrative Agent shall have received a Notice of Borrowing with respect to the Term B-1 Facility Loans, duly completed and complying with Section 4.05 of the Existing Credit Agreement.

ARTICLE X

POST-CLOSING REQUIREMENTS

SECTION 10.1      Post-Closing Real Property. Borrower shall as soon as practicable, but not later than sixty (60) days after the Effective Date (or such later date as Administrative Agent may determine in its reasonable discretion), deliver or cause to be delivered to Collateral Agent the following items with respect to each Mortgaged Real Property, each in form and substance reasonably acceptable to Administrative Agent:

(a)       an amendment to each Mortgage encumbering a Mortgaged Real Property to include the Sixth Amendment Revolving Commitments (and the Revolving Loans thereunder), the Incremental Revolving Facility Commitments (and the Revolving Loans thereunder),the Term A-4 Facility Loans and the Term B-1 Facility Loans in the obligations secured by such Mortgage (the “Mortgage Amendments”), each duly executed and delivered by an authorized officer of each Credit Party party thereto and in form suitable for filing and recording in all filing or recording offices that Administrative Agent may deem necessary or desirable unless Administrative Agent is satisfied in its reasonable discretion that Mortgage Amendments are not required in order to secure the applicable Credit Party’s obligations as modified hereby;

(b)       such endorsements as reasonably requested by the Administrative Agent with respect to the Mortgaged Properties, each in form and substance reasonably satisfactory to Administrative Agent (it being acknowledged that, if requested by Administrative Agent (in its sole discretion), the aggregate amount of the coverage under the title insurance policies with respect to the Mortgaged Properties shall be reasonably increased to, or confirmed as not less than, the amount so requested by Administrative Agent); and

(c)       with respect to each Mortgage Amendment, legal opinions, each of which shall be addressed to Administrative Agent, Collateral Agent and the Lenders, dated the effective date of such Mortgage Amendment and covering such matters as the Administrative Agent shall reasonably request in a manner customary for transactions of this type.

 

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SECTION 10.2        Collateral Expenses. Borrower agrees to pay all fees, costs and expenses incurred in connection with the preparation, execution, filing and recordation of the Mortgage Amendments, including, without limitation, reasonable attorneys’ fees, title insurance premiums, filing and recording fees, title insurance company coordination fees, documentary stamp, mortgage and intangible taxes, if any, and title search charges and other charges incurred in connection with the recordation of the Mortgage Amendments and the other matters described in Section 10.1.

ARTICLE XI

VALIDITY OF OBLIGATIONS AND LIENS

SECTION 11.1        Validity of Obligations. Borrower and each Guarantor acknowledges and agrees that, both before and after giving effect to this Sixth Amendment, Borrower and each Guarantor is, jointly and severally, indebted to the Lenders and the other Secured Parties for the Obligations (including the Obligations in respect of the Sixth Amendment Revolving Commitments (including, for the avoidance of doubt, the Incremental Revolving Facility Commitments), Term A-5 Facility Loans provided or modified pursuant to this Sixth Amendment and the Term B-1 Facility Loans provided or modified pursuant to this Sixth Amendment), without defense, counterclaim or offset of any kind. The Borrower and each Guarantor hereby ratifies and reaffirms the validity, enforceability and binding nature of such Obligations both before and after giving effect to this Sixth Amendment (except as the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally and subject to general principles of equity).

SECTION 11.2        Validity of Liens and Credit Documents. Borrower and each other Station Party hereby ratifies and reaffirms the validity and enforceability (except as the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally and subject to general principles of equity) of the Liens and security interests granted to Collateral Agent for the benefit of the Secured Parties to secure all of the Obligations (including the Obligations in respect of the Sixth Amendment Revolving Commitments (including, for the avoidance of doubt, the Incremental Revolving Facility Commitments), Term A-5 Facility Loans provided or modified pursuant to this Sixth Amendment and the Term B-1 Facility Loans provided or modified pursuant to this Sixth Amendment) by Borrower and each other Station Party pursuant to the Credit Documents to which any of Borrower or such other Station Party is a party and hereby confirms and agrees that notwithstanding the effectiveness of this Sixth Amendment, and except as expressly amended by this Sixth Amendment, each such Credit Document is, and shall continue to be, in full force and effect and each is hereby ratified and confirmed in all respects.

 

12


ARTICLE XII

MISCELLANEOUS

SECTION 12.1        Notice. For purposes of the Amended Credit Agreement, the initial notice address of each Incremental Revolving Facility Lender (other than any Incremental Revolving Facility Lender that, immediately prior to the execution of this Sixth Amendment, is a “Lender” under the Existing Credit Agreement) shall be as set forth below its signature to this Sixth Amendment.

SECTION 12.2        Amendment, Modification and Waiver. This Sixth Amendment may not be amended, modified or waived except by an instrument or instruments in writing signed and delivered on behalf of the Borrower and the Administrative Agent (acting at the direction of such Lenders as may be required under Section 13.04 of the Amended Credit Agreement).

SECTION 12.3        Entire Agreement. This Sixth Amendment, the Existing Credit Agreement and the other Credit Documents, constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof.

SECTION 12.4        GOVERNING LAW. THIS SIXTH AMENDMENT, AND ANY CLAIMS, CONTROVERSIES, DISPUTES, OR CAUSES OF ACTION (WHETHER ARISING UNDER CONTRACT LAW, TORT LAW OR OTHERWISE) BASED UPON OR RELATING TO THIS SIXTH AMENDMENT, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW PRINCIPLES THAT WOULD APPLY THE LAWS OF ANOTHER JURISDICTION.

SECTION 12.5        SUBMISSION TO JURISDICTION. EACH PARTY HERETO AGREES THAT SECTION 13.09(b) OF THE EXISTING CREDIT AGREEMENT SHALL APPLY TO THIS SIXTH AMENDMENT MUTATIS MUTANDIS.

SECTION 12.6        Severability. Wherever possible, each provision of this Sixth Amendment shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Sixth Amendment shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Sixth Amendment.

SECTION 12.7        Counterparts. This Sixth Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Sixth Amendment by facsimile or other electronic transmission (including portable document format (“.pdf”) or similar format) shall be effective as delivery of a manually executed counterpart hereof.

SECTION 12.8        Lead Arrangers and Bookrunners. The Borrower has appointed (a) Deutsche Bank Securities Inc., BNP Paribas, BofA Securities, Inc., Citigroup Global Markets Inc., Citizens Bank, N.A., Fifth Third Bank, Goldman Sachs Bank USA, JPMorgan Chase Bank, N.A., KeyBanc Capital Markets Inc., SunTrust Robinson Humphrey, Inc. and Wells Fargo Securities,

 

13


LLC to act as joint lead arrangers and joint bookrunners for the Extending Revolving Commitments and the Extending Term A-4 Facility Loans and (b) JPMorgan Chase Bank, N.A., BNP Paribas, BofA Securities, Inc., Citigroup Global Markets Inc., Citizens Bank, N.A., Deutsche Bank Securities Inc., Fifth Third Bank, Goldman Sachs Bank USA, KeyBanc Capital Markets Inc., SunTrust Robinson Humphrey, Inc. and Wells Fargo Securities, LLC to act as joint lead arrangers and joint bookrunners for the Term B-1 Facility Loans (collectively, the “Sixth Amendment Arrangers”). Anything herein to the contrary notwithstanding, the Sixth Amendment Arrangers shall have no powers, duties or responsibilities under this Sixth Amendment or any of the other Credit Documents, except in their respective capacities, as applicable, as the Administrative Agent, Collateral Agent, a Lender or a L/C Lender thereunder.

SECTION 12.9        Credit Document. This Sixth Amendment shall constitute a “Credit Document” as defined in the Amended Credit Agreement.

SECTION 12.10        No Novation. This Sixth Amendment shall not extinguish the obligations for the payment of money outstanding under the Existing Credit Agreement or discharge or release the priority of any Credit Document (as defined in the Existing Credit Agreement) or any other security therefor. Nothing herein contained shall be construed as a substitution or novation of the obligations outstanding under the Existing Credit Agreement or the instruments, documents and agreements securing the same, which shall remain in full force and effect. Nothing in this Sixth Amendment shall be construed as a release or other discharge of the Borrower or any other Station Party from any of its obligations and liabilities under the Existing Credit Agreement or the other Credit Documents (as defined in the Existing Credit Agreement).

SECTION 12.11        Additional Agreements of Lenders. Each Lender party hereto (a) represents and warrants that it is legally authorized to enter into this Sixth Amendment; (b) confirms that it has received a copy of the Amended Credit Agreement, this Sixth Amendment and the other Credit Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Sixth Amendment; (c) agrees that it will, independently and without reliance upon the Administrative Agent or any other Lender or Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Amended Credit Agreement, the other Credit Documents or any other instrument or document furnished pursuant hereto or thereto; (d) appoints and authorizes each applicable Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Amended Credit Agreement, the other Credit Documents or any other instrument or document furnished pursuant hereto or thereto as are delegated to each such Agent, as applicable, by the terms thereof, together with such powers as are incidental thereto; (e) hereby affirms the acknowledgements and representations of such Lender as a Lender contained in Section 12.07 of the Amended Credit Agreement; (f) agrees that it will be bound by the provisions of the Amended Credit Agreement and will perform in accordance with the terms of the Amended Credit Agreement all the obligations which by the terms of the Amended Credit Agreement are required to be performed by it as a Lender, including its obligations pursuant to Section 13.05 of the Amended Credit Agreement and (e) waives the right to receive payment of any amounts from Borrower under Section 5.05(a)(4) of the Amended Credit Agreement in connection with this Sixth Amendment and the transactions herein contemplated.

 

14


[Remainder of page intentionally left blank]

 

15


IN WITNESS WHEREOF, the parties have caused this Sixth Amendment to be duly executed as of the day and year first above written, to be effective as of the Effective Date.

 

Borrower:
STATION CASINOS LLC
By:    
Name:   Stephen L. Cootey
Title: Executive Vice President, Chief Financial Officer & Treasurer

[Signature Page to Sixth Amendment]


Guarantors:
CV PROPCO, LLC
NP BOULDER LLC
NP CENTERLINE HOLDINGS LLC
NP DURANGO LLC
NP FIESTA LLC
NP INSPIRADA LLC
NP IP HOLDINGS LLC
NP LAKE MEAD LLC
NP LANDCO HOLDCO LLC
NP MT. ROSE LLC
NP OPCO HOLDINGS LLC
NP OPCO LLC

NP PALACE LLC

NP RED ROCK LLC

NP RENO CONVENTION CENTER LLC

NP RANCHO LLC

NP SANTA FE LLC

NP SONOMA LAND HOLDINGS LLC

NP SUNSET LLC

NP TEXAS LLC

NP TOWN CENTER LLC

NP TROPICANA LLC

STATION GVR ACQUISITION, LLC

By:    
Name:   Stephen L. Cootey
Title:   Senior Vice President & Treasurer

[Signature Page to Sixth Amendment]


Guarantors:

 

SC MADERA DEVELOPMENT, LLC

SC MADERA MANAGEMENT, LLC

SC MICHIGAN, LLC

SC SONOMA DEVELOPMENT, LLC

SC SONOMA MANAGEMENT, LLC

By:    
Name:   Frank J. Fertitta III
Title:   President

[Signature Page to Sixth Amendment]


Guarantors:

 

FERTITTA ENTERTAINMENT LLC

FIESTA PARENTCO, L.L.C.

FP HOLDINGS, L.P.

FP HOLDCO, L.L.C.

PALMS LEASECO LLC

PALMS PLACE, LLC

PPII HOLDINGS, L.L.C.

RRR PALMS LLC

By:    
Name:   Stephen L. Cootey
Title:   Authorized Person

[Signature Page to Sixth Amendment]


RED ROCK RESORTS, INC.
By:  

 

Name:   Stephen L. Cootey
Title:   Executive Vice President, Chief
Financial Officer & Treasurer

[Signature Page to Sixth Amendment]


STATION HOLDCO LLC
By:  

 

Name:   Stephen L. Cootey
Title:   Executive Vice President, Chief
Financial Officer & Treasurer

[Signature Page to Sixth Amendment]


Acknowledged and Agreed by:   

DEUTSCHE BANK AG CAYMAN ISLANDS

BRANCH, as Administrative Agent

  
By:                                                                                          
Name:                                                                                     
Title:                                                                                       
By:                                                                                          
Name:                                                                                     
Title:                                                                                       

[Signature Page to Sixth Amendment]


The undersigned Lender hereby consents to this Sixth Amendment with respect to 100% of the commitments and outstanding principal amount of the Term A-4 Facility Loan, Fifth Amendment Revolving Commitment (including Revolving Loans thereunder), Swingline Commitment and L/C Commitment, as applicable, and to retaining 100% of the commitments and outstanding principal amount of the Term A-4 Facility Loan, Fifth Amendment Revolving Commitment (including Revolving Loans thereunder), Swingline Commitment and L/C Commitment, as applicable, in each case held by such Lender on the Effective Date for the Sixth Amendment:

 

[_______________],   
as [Term A-4 Facility Lender][Revolving Lender
holding Fifth Amendment Revolving
Commitments][L/C Lender][Swingline Lender]
  
By:                                                                                         
Name:                                                                                    
Title:                                                                                      
If a second signature is necessary:   
By:                                                                                         
Name:                                                                                    
Title:                                                                                      
Notice Information:   
Address:   
Telephone:   
Fax:   
Email:   

[Signature Page to Sixth Amendment]


[_______________],   
as [Incremental Revolving Facility
Lender][Extending Term B Facility Lender]
  
By:                                                                                         
Name:                                                                                    
Title:                                                                                      
If a second signature is necessary:   
By:                                                                                         
Name:                                                                                    
Title:                                                                                      
Notice Information:   
Address:   
Telephone:   
Fax:   
Email:   

[Signature Page to Sixth Amendment]


SCHEDULE A

Incremental Revolving Facility Commitments

 

 

   

 

 

 

Name of Incremental Revolving Facility Lender

 

  

 

  Amount

 

     
   
 

Deutsche Bank AG Cayman Islands Branch

 

    

 

$12,392,940.04

 

 

 

 
   
 

JPMorgan Chase Bank, N.A.

 

    

 

$28,689,648.90

 

 

 

 
   
 

Bank of America, N.A.

 

    

 

$29,510,874.55

 

 

 

 
   
 

Wells Fargo Bank, N.A.

 

    

 

$28,262,500.00

 

 

 

 
   
 

Fifth Third Bank

 

    

 

$29,848,471.93

 

 

 

 
   
 

Citizens Bank, N.A.

 

    

 

$3,363,222.77

 

 

 

 
   
 

Citibank, N.A.

 

    

 

$50,000,000.00

 

 

 

 
   
 

Truist Bank

 

    

 

$56,201,298.78

 

 

 

 
   
 

KeyBank National Association

 

    

 

$20,000,000.00

 

 

 

 
   
        

 

Total:      $258,268,956.97

 

 

 

 


SCHEDULE B

Term A-4 Facility Loans modified into Term A-5 Facility Loans

 

 

      Name of Extending Term A-4 Facility Lender   

 

  Term A-4 Facility Loans

  modified into Term A-5

  Facility Loans

 

     
   
 

Deutsche Bank AG Cayman Islands Branch

 

    

 

$26,361,638.71

 

 

 

 
   
 

JPMorgan Chase Bank, N.A.

 

    

 

$25,064,929.85

 

 

 

 
   
 

Bank of America, N.A.

 

    

 

$24,243,704.20

 

 

 

 
   
 

Wells Fargo Bank, N.A.

 

    

 

$25,737,500.00

 

 

 

 
   
 

Fifth Third Bank

 

    

 

$26,058,121.48

 

 

 

 
   
 

Citizens Bank, N.A.

 

    

 

$17,680,733.27

 

 

 

 
   
 

Truist Bank

 

    

 

$43,798,701.22

 

 

 

 
   
        

 

Total:      $188,945,328.73

 

 

 

 


SCHEDULE C

Fifth Amendment Revolving Commitments modified into Sixth Amendment Revolving

Commitments

 

    Name of Extending Revolving Lender   

 

  Fifth Amendment
  Revolving Commitments
  modified into Sixth
  Amendment Revolving
  Commitments

 

     
   
 

Deutsche Bank AG Cayman Islands Branch

 

    

 

$111,245,421.25

 

 

 

 
   
 

JPMorgan Chase Bank, N.A.

 

    

 

$96,245,421.25

 

 

 

 
   
 

Bank of America, N.A.

 

    

 

$96,245,421.25

 

 

 

 
   
 

Wells Fargo Bank, N.A.

 

    

 

$96,000,000.00

 

 

 

 
   
 

Fifth Third Bank

 

    

 

$94,093,406.59

 

 

 

 
   
 

BNP Paribas

 

    

 

$100,000,000.00

 

 

 

 
   
 

Citizens Bank, N.A.

 

    

 

$78,956,043.96

 

 

 

 
   

 

 

Citibank, N.A.

 

    

 

$25,000,000.00

 

 

 

 
   
 

Goldman Sachs Bank USA

 

    

 

$50,000,000.00

 

 

 

 
   
 

KeyBank National Association

 

    

 

$25,000,000.00

 

 

 

 
   
        

 

Total:      $772,785,714.30

 

 

 

 


SCHEDULE D

Term B-1 Facility Loan Commitments

 

   

Name of Extending Term B Facility Lender

 

  

  Amount

 

     
   
 

JPMorgan Chase Bank, N.A.

 

    

 

$1,533,174,118.00

 

 

 

 
   

 

        

 

Total:      $1,533,174,118.00

 

 

 

 


EXHIBIT A

Amendments to Existing Credit Agreement

[See Attached]


CONFORMED FOR FIRST AMENDMENT,

SECOND AMENDMENT, THIRD AMENDMENT,

FOURTH AMENDMENT AND, FIFTH AMENDMENT

AND SIXTH AMENDMENT

 

 

 

CREDIT AGREEMENT

Dated as of June 8, 2016

(as amended by the First Amendment to Credit Agreement, dated as of January 30, 2017,

the Second Amendment to Credit Agreement, dated as of April 5, 2017,

the Third Amendment to Credit Agreement, dated as of May 2, 2017,

the Incremental Joinder Agreement No. 4 and Fourth Amendment to Credit Agreement,

dated as of September 21, 2017 and, the Incremental Joinder Agreement No. 5 and Fifth Amendment to

Credit Agreement, dated as of February 8, 2019 and the Incremental Joinder Agreement No. 6 and Sixth

Amendment to Credit Agreement, dated as of February 7, 2020),

among

STATION CASINOS LLC,

as Borrower,

THE SUBSIDIARIES OF BORROWER PARTY HERETO,

as Guarantors,

THE LENDERS PARTY HERETO,

THE L/C LENDERS PARTY HERETO

and

DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH,

as Administrative Agent and as Collateral Agent,

 

 

DEUTSCHE BANK SECURITIES INC., BNP PARIBAS SECURITIES CORP., BOFA SECURITIES, INC.,

CITIGROUP GLOBAL MARKETS INC., CITIZENS BANK, N.A., FIFTH THIRD BANK, GOLDMAN

SACHS BANK USA, JPMORGAN CHASE BANK, N.A., KEYBANC CAPITAL MARKETS INC.,

SUNTRUST ROBINSON HUMPHREY, INC. AND WELLS FARGO SECURITIES, LLC,

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

JPMORGAN CHASE BANK, N.A., DEUTSCHE BANK SECURITIES INC., FIFTH THIRD BANK,

GOLDMAN SACHS BANK USA, CITIGROUP GLOBAL MARKETS INC.,

MACQUARIE CAPITAL (USA) INC., CITIZENS BANK, N.A. and UBS SECURITIES LLC,

as Lead Arrangers and Bookrunners for the Sixth Amendment Revolving Facility and the Term AA-5

Facility,

and

JPMORGAN CHASE BANK, N.A.,

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

DEUTSCHE BANK SECURITIES INC., FIFTH THIRD BANK,

GOLDMAN SACHS BANK USA, CITIGROUP GLOBAL MARKETS INC. and

MACQUARIE CAPITAL (USA)JPMORGAN CHASE BANK, N.A., BNP PARIBAS SECURITIES CORP.,

BOFA SECURITIES, INC., CITIGROUP GLOBAL MARKETS INC., CITIZENS BANK, N.A.,

UBS DEUTSCHE BANK SECURITIES LLC

INC., FIFTH THIRD BANK, as Lead Arrangers and Bookrunners for the Term B Facility,

and


JPMORGAN CHASE BANK, N.A., BANK OF AMERICA, N.A.,

DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH and FIFTH THIRD BANK,

as Syndication Agents

and

GOLDMAN SACHS BANK USA, CITIGROUP GLOBALKEYBANC CAPITAL MARKETS INC.,

SUNTRUST ROBINSON HUMPHREY, INC. AND WELLS FARGO SECURITIES, LLC,

as Lead Arrangers and Bookrunners for the Term B-1 Facility

MACQUARIE CAPITAL (USA) INC., CITIZENS BANK, N.A., UBS SECURITIES LLC and

CREDIT SUISSE SECURITIES (USA) LLC,

as Documentation Agents

 

 

 

 

-2-


TABLE OF CONTENTS

Page

ARTICLE I.

DEFINITIONS, ACCOUNTING MATTERS AND RULES OF CONSTRUCTION

 

SECTION 1.01.    Certain Defined Terms      1  
SECTION 1.02.    Accounting Terms and Determinations      6667  
SECTION 1.03.    Classes and Types of Loans      6767  
SECTION 1.04.    Rules of Construction      6768  
SECTION 1.05.    Pro Forma Calculations      6868  
SECTION 1.06.    Letter of Credit Amounts      6969  
SECTION 1.07.    Divisions      70  
SECTION 1.08.    Effect of Benchmark Transition Event      70  

ARTICLE II.

  

CREDITS

  
SECTION 2.01.    Loans      6971  
SECTION 2.02.    Borrowings      7477  
SECTION 2.03.    Letters of Credit      7577  
SECTION 2.04.    Termination and Reductions of Commitment      8284  
SECTION 2.05.    Fees      8385  
SECTION 2.06.    Lending Offices      8486  
SECTION 2.07.    Several Obligations of Lenders      8486  
SECTION 2.08.    Notes; Register      8486  
SECTION 2.09.    Optional Prepayments and Conversions or Continuations of Loans      8486  
SECTION 2.10.    Mandatory Prepayments      8688  
SECTION 2.11.    Replacement of Lenders      9092  
SECTION 2.12.    Incremental Loan Commitments      9193  
SECTION 2.13.    Extensions of Loans and Commitments      9698  
SECTION 2.14.    Defaulting Lender Provisions      99100  
SECTION 2.15.    Refinancing Amendments      100102  
SECTION 2.16.    Cash Collateral      102104  

ARTICLE III.

  

PAYMENTS OF PRINCIPAL AND INTEREST

  
SECTION 3.01.    Repayment of Loans      103105  
SECTION 3.02.    Interest      104106  

ARTICLE IV.

  

PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.

  
SECTION 4.01.    Payments      105107  
SECTION 4.02.    Pro Rata Treatment      106107  
SECTION 4.03.    Computations      106108  
SECTION 4.04.    Minimum Amounts      106108  
SECTION 4.05.    Certain Notices      107108  
SECTION 4.06.    Non-Receipt of Funds by Administrative Agent      108109  

 

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Page

 

SECTION 4.07.    Right of Setoff, Sharing of Payments; Etc.      108109  

ARTICLE V.

  

YIELD PROTECTION, ETC.

  
SECTION 5.01.    Additional Costs      109110  
SECTION 5.02.    Inability to Determine Interest Rate      110111  
SECTION 5.03.    Illegality      111112  
SECTION 5.04.    Treatment of Affected Loans      111112  
SECTION 5.05.    Compensation      112112  
SECTION 5.06.    Net Payments      112113  

ARTICLE VI.

  

GUARANTEES

  
SECTION 6.01.    The Guarantees      115115  
SECTION 6.02.    Obligations Unconditional      115116  
SECTION 6.03.    Reinstatement      117117  
SECTION 6.04.    Subrogation; Subordination      117118  
SECTION 6.05.    Remedies      118118  
SECTION 6.06.    Continuing Guarantee      118118  
SECTION 6.07.    General Limitation on Guarantee Obligations      118118  
SECTION 6.08.    Release of Guarantors      118118  
SECTION 6.09.    Keepwell      118118  
SECTION 6.10.    Right of Contribution      118119  

ARTICLE VII.

  

CONDITIONS PRECEDENT

  
SECTION 7.01.    Conditions to Initial Extensions of Credit      119119  
SECTION 7.02.    Conditions to All Extensions of Credit      122122  

ARTICLE VIII.

  

REPRESENTATIONS AND WARRANTIES

  
SECTION 8.01.    Corporate Existence; Compliance with Law      123123  
SECTION 8.02.    Financial Condition; Etc.      124123  
SECTION 8.03.    Litigation      124124  
SECTION 8.04.    No Breach; No Default      124124  
SECTION 8.05.    Action      124124  
SECTION 8.06.    Approvals      125124  
SECTION 8.07.    ERISA and Foreign Employee Benefit Matters      125125  
SECTION 8.08.    Taxes      126125  
SECTION 8.09.    Investment Company Act; Other Restrictions      126126  
SECTION 8.10.    Environmental Matters      126126  
SECTION 8.11.    Use of Proceeds      127127  
SECTION 8.12.    Subsidiaries      128127  
SECTION 8.13.    Ownership of Property; Liens      128127  
SECTION 8.14.    Security Interest; Absence of Financing Statements; Etc.      128128  
SECTION 8.15.    Licenses and Permits      129128  
SECTION 8.16.    Disclosure      129128  
SECTION 8.17.    Solvency      129128  

 

-ii-


Page

 

SECTION 8.18.    Senior Obligations      129129  
SECTION 8.19.    Intellectual Property      129129  
SECTION 8.20.    [Reserved]      130129  
SECTION 8.21.    Regulation H      130129  
SECTION 8.22.    Insurance      130129  
SECTION 8.23.    Real Estate      130129  
SECTION 8.24.    Leases      130130  
SECTION 8.25.    Mortgaged Real Property      131130  
SECTION 8.26.    Material Adverse Effect      132131  
SECTION 8.27.    Anti-Corruption Laws and Sanctions      132131  
SECTION 8.28.    Beneficial Ownership Certificate      132131  

ARTICLE IX.

  

AFFIRMATIVE COVENANTS

  
SECTION 9.01.    Existence; Business Properties      132131  
SECTION 9.02.    Insurance      133132  
SECTION 9.03.    Taxes; Performance of Obligations      133132  
SECTION 9.04.    Financial Statements, Etc.      134133  
SECTION 9.05.    Maintaining Records; Access to Properties and Inspections      137136  
SECTION 9.06.    Use of Proceeds      137136  
SECTION 9.07.    Compliance with Environmental Law      138136  
SECTION 9.08.    Pledge or Mortgage of Real Property and Vessels      138137  
SECTION 9.09.    Security Interests; Further Assurances      140139  
SECTION 9.10.    VoteCo SPE Reorganization      141139  
SECTION 9.11.    Additional Credit Parties      141139  
SECTION 9.12.    Limitation on Designations of Unrestricted Subsidiaries      142140  
SECTION 9.13.    Limitation on Designation of Immaterial Subsidiaries and Native American Subsidiaries      143141  
SECTION 9.14.    Ratings      144142  
SECTION 9.15.    Post-Closing Matters      144142  

ARTICLE X.

  

NEGATIVE COVENANTS

  
SECTION 10.01.    Indebtedness      145143  
SECTION 10.02.    Liens      148146  
SECTION 10.03.    [Reserved]      151149  
SECTION 10.04.    Investments, Loans and Advances      151149  
SECTION 10.05.    Mergers, Consolidations and Sales of Assets      154151  
SECTION 10.06.    Restricted Payments      156153  
SECTION 10.07.    Transactions with Affiliates      158155  
SECTION 10.08.    Financial Covenants      159156  
SECTION 10.09.    Certain Payments of Indebtedness; Amendments to Certain Agreements      160157  
SECTION 10.10.    Limitation on Certain Restrictions Affecting Subsidiaries      162159  
SECTION 10.11.    Limitation on Lines of Business; Holding Companies; RRR      163160  
SECTION 10.12.    Limitation on Changes to Fiscal Year      164160  

ARTICLE XI.

  

EVENTS OF DEFAULT

  
SECTION 11.01.    Events of Default      164161  
SECTION 11.02.    Application of Proceeds      167164  
SECTION 11.03.    Borrower’s Right to Cure      168164  

 

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Page

 

ARTICLE XII.

  

AGENTS

  
SECTION 12.01.    Appointment      168165  
SECTION 12.02.    Rights      169165  
SECTION 12.03.    Exculpatory Provisions      169165  
SECTION 12.04.    Reliance by Agents      170166  
SECTION 12.05.    Delegation of Duties      170167  
SECTION 12.06.    Resignation of Administrative Agent      170167  
SECTION 12.07.    Nonreliance on Agents and Other Lenders      172168  
SECTION 12.08.    Indemnification      172168  
SECTION 12.09.    No Other Duties      173169  
SECTION 12.10.    Holders      173169  
SECTION 12.11.    Administrative Agent May File Proofs of Claim      173169  
SECTION 12.12.    Collateral Matters      173170  
SECTION 12.13.    Withholding Tax      174170  
SECTION 12.14.    Secured Cash Management Agreements and Swap Contracts      174170  
SECTION 12.15.    Certain ERISA Matters      171  

ARTICLE XIII.

  

MISCELLANEOUS

  
SECTION 13.01.    Waiver      175171  
SECTION 13.02.    Notices      175172  
SECTION 13.03.    Expenses, Indemnification, Etc.      176173  
SECTION 13.04.    Amendments and Waiver      178175  
SECTION 13.05.    Benefit of Agreement; Assignments; Participations      185181  
SECTION 13.06.    Survival      191186  
SECTION 13.07.    Captions      191186  
SECTION 13.08.    Counterparts; Interpretation; Effectiveness      191187  
SECTION 13.09.    Governing Law; Submission to Jurisdiction; Waivers; Etc.      191187  
SECTION 13.10.    Confidentiality      192188  
SECTION 13.11.    Independence of Representations, Warranties and Covenants      193188  
SECTION 13.12.    Severability      193188  
SECTION 13.13.    Gaming Laws      193189  
SECTION 13.14.    USA Patriot Act      194189  
SECTION 13.15.    Waiver of Claims      194189  
SECTION 13.16.    No Advisory or Fiduciary Responsibility      194189  
SECTION 13.17.    Lender Action      195190  
SECTION 13.18.    Interest Rate Limitation      195190  
SECTION 13.19.    Payments Set Aside      196191  
SECTION 13.20.    VoteCo SPE Reorganization      196191  
SECTION 13.21.    Acknowledgement and Consent to Bail-In of EEAAffected Financial Institutions      196191  
SECTION 13.22.    Acknowledgement Regarding any Supported QFCs      192  

 

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ANNEXES:

           
ANNEX A-1    -      Revolving Commitments on FifthSixth Amendment Effective Date
ANNEX A-2    -      Term A Facility Commitments
ANNEX A-32    -      Term A-35 Facility Loans on FifthSixth Amendment Effective Date
ANNEX A-43    -      Term A-4B-1 Facility Loans on FifthCommitments on Sixth Amendment Effective Date
ANNEX A-5    -      Term B Facility Commitments
ANNEX B    -      Applicable Margin for Revolving Loans, Swingline Loans, Term A-3 Facility Loans and Term A-45 Facility Loans
ANNEX C    -      Amortization Payments - Term A-35 Facility Loans
ANNEX D    -      Amortization Payments - Term A-4 Facility Loans

SCHEDULES:

           
SCHEDULE 1.01(A)    -      Excluded Subsidiary Agreements
SCHEDULE 1.01(B)    -      Guarantors
SCHEDULE 1.01(C)    -      Initial Mortgaged Real Property
SCHEDULE 1.01(D)    -      Designated Lenders
SCHEDULE 1.01(E)    -      Native American Contracts
SCHEDULE 1.01(F)    -      Disqualified Lenders
SCHEDULE 2.03(n)    -      Existing Letters of Credit

SCHEDULE 7.01

   -      Jurisdictions of Local Counsel Opinions

SCHEDULE 8.03

   -      Litigation
SCHEDULE 8.07    -      ERISA
SCHEDULE 8.08    -      Taxes
SCHEDULE 8.10    -      Environmental Matters
SCHEDULE 8.12(a)    -      Subsidiaries
SCHEDULE 8.12(b)    -      Immaterial Subsidiaries
SCHEDULE 8.12(c)    -      Unrestricted Subsidiaries
SCHEDULE 8.12(d)    -      Native American Subsidiaries
SCHEDULE 8.13(a)    -      Ownership
SCHEDULE 8.15    -      Licenses and Permits
SCHEDULE 8.19    -      Intellectual Property
SCHEDULE 8.21    -      Regulation H
SCHEDULE 8.23(a)    -      Real Property
SCHEDULE 8.23(b)    -      Real Property Takings, Etc.
SCHEDULE 8.25(a)    -      No Certificates of Occupancy; Violations, Etc.
SCHEDULE 8.25(b)    -      Encroachment, Boundary, Location, Possession Disputes
SCHEDULE 9.12    -      Designated Unrestricted Subsidiaries
SCHEDULE 9.15    -      Post-Closing Matters
SCHEDULE 10.01    -      Existing Indebtedness
SCHEDULE 10.02    -      Certain Existing Liens
SCHEDULE 10.04    -      Investments
SCHEDULE 10.04(u)    -      Native American Investments
SCHEDULE 10.04(w)    -      Real Estate to be Invested by Native American Subsidiaries
SCHEDULE 10.07    -      Transactions with Affiliates

EXHIBITS:

           

EXHIBIT A-1

   -      Form of Revolving Note
EXHIBIT A-2    -      Form of Term AA-5 Facility Note
EXHIBIT A-3    -      Form of Term BB-1 Facility Note
EXHIBIT A-4    -      Form of Swingline Note
EXHIBIT B    -      Form of Notice of Borrowing

 

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EXHIBIT C    -      Form of Notice of Continuation/Conversion
EXHIBIT D    -      Forms of U.S. Tax Compliance Certificate
EXHIBIT E    -      Form of Foreign Lender Certificate
EXHIBIT F    -      Form of Pledge Agreement
EXHIBIT G    -      Form of Solvency Certificate
EXHIBIT H    -      Form of Security Agreement
EXHIBIT I    -      Form of Mortgage
EXHIBIT J    -      [Reserved]
EXHIBIT K    -      Form of Assignment and Assumption Agreement
EXHIBIT L    -      Form of Letter of Credit Request
EXHIBIT M    -      Form of Joinder Agreement
EXHIBIT N    -      Form of Perfection Certificate
EXHIBIT O    -      Form of Auction Procedures
EXHIBIT P    -      Form of Open Market Assignment and Assumption Agreement
EXHIBIT Q    -      Form of Term Loan Extension Amendment
EXHIBIT R    -      Form of Revolving Extension Amendment
EXHIBIT S    -      Form of Pari Passu Intercreditor Agreement
EXHIBIT T    -      Form of Second Lien Intercreditor Agreement
EXHIBIT U    -      Form of Custodian Agreement
EXHIBIT V    -      Form of Compliance Certificate

 

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CREDIT AGREEMENT, dated as of June 8, 2016 (this “Agreement”), among STATION CASINOS LLC, a Nevada limited liability company (“Borrower”); the SUBSIDIARY GUARANTORS party hereto from time to time; the LENDERS from time to time party hereto; the L/C LENDERS party hereto; DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH, as swingline lender (in such capacity, together with its successors in such capacity, “Swingline Lender”); DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH, as administrative agent (in such capacity, together with its successors in such capacity, “Administrative Agent”); and DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH, as collateral agent (in such capacity, together with its successors in such capacity, “Collateral Agent”).

WHEREAS, Borrower has requested that the Lenders provide first lien revolving credit and term loan facilities, and the Lenders have indicated their willingness to lend, and the L/C Lender has indicated its willingness to issue letters of credit, in each case, on the terms and subject to the conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, the parties agree as follows:

ARTICLE I.

DEFINITIONS, ACCOUNTING MATTERS AND RULES OF CONSTRUCTION

SECTION 1.01.      Certain Defined Terms. As used herein, the following terms shall have the following meanings:

“2020 Senior Unsecured Notes” shall mean the outstanding 4.500% senior unsecured notes due 2028 of Borrower in the original aggregate principal amount of $750.0 million.

ABR Loans” shall mean Loans that bear interest at rates based upon the Alternate Base Rate.

Acquisition” shall mean, with respect to any Person, any transaction or series of related transactions for the (a) acquisition of all or substantially all of the Property of any other Person, or of any business or division of any other Person (other than any then-existing Company), (b) acquisition of more than 50% of the Equity Interests of any other Person, or otherwise causing any other Person to become a Subsidiary of such Person or (c) merger or consolidation of such Person or any other combination of such Person with any other Person (other than any of the foregoing between or among any then-existing Companies).

Act” has the meaning set forth in Section 13.14.

Additional Credit Party” has the meaning set forth in Section 9.11.

Adjusted Maximum Amount” has the meaning set forth in Section 6.10.

Administrative Agent” has the meaning set forth in the introductory paragraph hereof.

Affected Classes” has the meaning set forth in Section 13.04(b)(A).

“Affected Financial Institution” shall mean (a) any EEA Financial Institution or (b) any UK Financial Institution.

Affiliate” shall mean:

(a) with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified; provided that as to any Credit Party or any Subsidiary thereof, the term “Affiliate” shall expressly exclude the Persons constituting Lenders as of the ClosingSixth Amendment Effective Date and their respective Affiliates (determined as provided herein without regard to this proviso); and


(b) with respect to any Credit Party or any Subsidiary thereof, (i) Frank J. Fertitta III and his spouse, their respective parents and grandparents and any lineal descendants (including adopted children and their lineal descendants) of any of the foregoing, (ii) Lorenzo J. Fertitta and his spouse, their respective parents and grandparents and any lineal descendants (including adopted children and their lineal descendants) of any of the foregoing, (iii) any Affiliate (determined in accordance with this definition without regard to this clause (iii)) of any Person described in the foregoing clauses (i) and (ii), and (iv) any personal investment vehicle, trust or entity owned by, or established for the benefit of, or the estate of, any Person described in the foregoing clauses (i) and (ii). “Control” means the possession; provided that no Person described in this clause (b) shall constitute an “Affiliate” of any Credit Party or Subsidiary thereof solely due to this clause (b) if all Persons described in this clause (b), in the aggregate, possess, directly or indirectly, of the power to (x) vote more than fifty percent (50%) (or, for purposes of Section 10.07 and the definition of Station Permitted Assignee,less than ten percent (10%)) of the outstanding voting interests of a Person or (y) direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto. For purposes of this Agreement, each of Holdco, RRR and, from and after the VoteCo SPE Reorganization Date, the VoteCo SPE shall be deemed to Control the Borrower.in RRR.

Affiliated Lender” means a Lender that is a Station Permitted Assignee.

Agent” shall mean any of Administrative Agent, Auction Manager, Collateral Agent, Lead Arrangers, Syndication Agent and/or Documentation Agent, as applicable.

Agent Party” has the meaning set forth in Section 13.02(e).

Agent Related Parties” shall mean each Agent and any sub-agent thereof and their respective Affiliates, directors, officers, employees, agents and advisors.

Agreement” has the meaning set forth in the introductory paragraph hereof.

All-In Yield” means, as to any Indebtedness, the yield thereof, whether in the form of interest rate, margin, original issue discount, upfront fees, a LIBO Rate floor (to the extent the LIBO Rate floor applicable to the applicable Incremental Term Loans is greater than the LIBO Rate floor for the Term BB-1 Facility and is in excess of the three-month LIBO Rate at the time of incurrence of such Incremental Term Loan) or Alternate Base Rate floor (to the extent the Alternate Base Rate floor applicable to the applicable Incremental Term Loans is greater than the Alternate Base Rate floor for the Term BB-1 Facility and is in excess of the Alternate Base Rate at the time of incurrence of such Incremental Term Loan) or otherwise, in each case, incurred or payable by Borrower generally to all lenders of such Indebtedness; provided that original issue discount and upfront fees shall be equated to interest rate assuming a 4-year life to maturity (or, if less, the stated life to maturity at the time of incurrence of the applicable Indebtedness); and provided, further, that “All-In Yield” shall not include arrangement, structuring, commitment, underwriting, amendment or other similar fees (regardless of whether paid in whole or in part to any or all lenders) or other fees not paid generally to all lenders of such Indebtedness.

Alternate Base Rate” shall mean, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus 12 of 1% and (c) the LIBO Rate for a one month Interest Period beginning on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1.0%; provided that, the LIBO Rate for any day shall be based on the LIBO Rate at approximately 11:00 a.m. London time on such day; provided, further, that with respect to the Term BB-1 Facility Loans only, the Alternate Base Rate shall not be less than 1.751.25%. Any change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the LIBO Rate, respectively.

Amortization Payment” shall mean each scheduled installment of payments on the Term Loans as set forth in Sections 3.01(b), 3.01(c) and 3.01(d).

ANC” means the American Nevada Company, a Nevada corporation.

 

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Anti-Corruption Laws” shall mean the United States Foreign Corrupt Practices Act of 1977, as amended, the UK Bribery Act 2010, as amended, and all other laws, rules, and regulations of any jurisdiction applicable to Borrower or any of its Subsidiaries from time to time concerning or relating to bribery or corruption.

Applicable ECF Percentage” shall mean, for any fiscal year, commencing with the fiscal year ended December 31, 20162020, (a) 50% if the Consolidated Total Leverage Ratio as of the last day of such fiscal year is greater than 4.505.00 to 1.00, (b) 25% if the Consolidated Total Leverage Ratio as of the last day of such fiscal year is equal to or less than 4.505.00 to 1.00 and greater than 3.754.50 to 1.00 and (c) 0% if the Consolidated Total Leverage Ratio as of the last day of such fiscal year is equal to or less than 3.754.50 to 1.00.

Applicable Fee Percentage” shall mean: (a) with respect to Unutilized R/C Commitments in respect of Closing Date Revolving Commitments, 0.30%, (b) with respect to Unutilized R/C Commitments in respect of FifthSixth Amendment Revolving Commitments, 0.30% and (cb) with respect to any Unutilized R/C Commitments in respect of any other Tranche of Revolving Commitments, 0.50% (or the percentage per annum set forth in the applicable Incremental Joinder Agreement, Extension Amendment or Refinancing Amendment).

Applicable Lending Office” shall mean, for each Lender and for each Type of Loan, the “Lending Office” of such Lender (or of an Affiliate of such Lender) (a) that is a lender on the ClosingSixth Amendment Effective Date, designated for such Type of Loan on Annexes A-1 through A-43 hereof, (b) set forth on such Lender’s signature page to an Incremental Joinder Agreement for any Lender making any Incremental Commitment pursuant to Section 2.12, (c) set forth on such Lender’s signature page to any Refinancing Amendment for any Lender providing Credit Agreement Refinancing Indebtedness pursuant to Section 2.15, (d) set forth in the Assignment Agreement for any Person that becomes a “Lender” hereunder pursuant to an Assignment Agreement or (e) such other office of such Lender (or of an Affiliate of such Lender) as such Lender may from time to time specify to Administrative Agent and Borrower as the office by which its Loans of such Type are to be made and maintained.

Applicable Margin shall mean:

(a) for each Type and Class of Loan, other than any Term BB-1 Facility Loan, (i) prior to the Initial Financial Statement Delivery Date, the respective percentage per annum set forth at Level II as set forth on Annex B (or the applicable Incremental Joinder Agreement, Extension Amendment or Refinancing Amendment) for such Type and Class of Loan; and (ii) on and after the Initial Financial Statement Delivery Date, the applicable percentage per annum as set forth on Annex B (or the applicable Incremental Joinder Agreement, Extension Amendment or Refinancing Amendment) for such Type and Class of Loan, set forth opposite the relevant Consolidated Total Leverage Ratio in Annex B (or as otherwise set forth in the applicable Incremental Joinder Agreement, Extension Amendment or Refinancing Amendment) determined as of the most recent Calculation Date. After the Initial Financial Statement Delivery Date, any change in the Consolidated Total Leverage Ratio shall be effective to adjust the Applicable Margin on and as of the date of receipt by Administrative Agent of the Section 9.04 Financials resulting in such change until the date immediately preceding the next date of delivery of Section 9.04 Financials resulting in another such change. If (i) Borrower fails to deliver the Section 9.04 Financials within the times specified in Section 9.04(a) or 9.04(b), as applicable, or (ii) an Event of Default is continuing and the Required Pro Rata Lenders have directed the application of Level I, such ratio shall be deemed to be at Level I as set forth in Annex B (or as otherwise set forth in the applicable Incremental Joinder Agreement, Extension Amendment or Refinancing Amendment) from the date of any such failure to deliver until Borrower delivers such Section 9.04 Financials in the case of clause (i) or the date of delivery of such direction in the case of clause (ii) until such Event of Default is no longer continuing or the Required Pro Rata Lenders have otherwise agreed that such Level I is no longer applicable, as applicable (or as otherwise set forth in the applicable Incremental Joinder Agreement, Extension Amendment or Refinancing Amendment). In the event that any financial statement or certification delivered pursuant to Section 9.04 is shown to be inaccurate (an “Inaccuracy Determination”), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin for any period (an “Inaccurate Applicable Margin Period”) than the Applicable Margin applied for such Inaccurate Applicable Margin Period, then Borrower shall promptly (i) deliver to the Administrative Agent corrected Section 9.04 Financials for such Inaccurate Applicable Margin Period, (ii) determine the Applicable Margin for such Inaccurate Applicable Margin Period based upon the corrected Section 9.04 Financials and (iii) pay to the Administrative Agent the accrued additional interest owing as a result of such increased Applicable Margin for such Inaccurate Applicable Margin Period, which payment shall be promptly

 

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applied by the Administrative Agent in accordance with Section 4.01. It is acknowledged and agreed that nothing contained herein shall limit the rights of the Administrative Agent and the Lenders under the Credit Documents, including their rights under Section 3.02 and Article XI and their other respective rights under this Agreement; and

(b) for each Term BB-1 Facility Loan, (i) 2.502.25% per annum, with respect to LIBOR Loans and (ii) 1.501.25% per annum, with respect to ABR Loans.

Approved Fund” means any Fund that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.

Asset Sale” shall mean (a) any conveyance, sale, lease, transfer or other disposition (including by way of merger or consolidation and including any sale and leaseback transaction) of any Property (including accounts receivable and Equity Interests of any Person owned by Borrower or any of its Restricted Subsidiaries but not any Equity Issuance) (whether owned on the ClosingSixth Amendment Effective Date or thereafter acquired) by Borrower or any of its Restricted Subsidiaries to any Person (other than (i) with respect to any Credit Party, to any Credit Party, and (ii) with respect to any other Company, to any Company) and (b) any issuance or sale by any Restricted Subsidiary of its Equity Interests to any Person (other than to Borrower or any other Restricted Subsidiary); provided that the following shall not constitute an “Asset Sale”: (v) any conveyance, sale, lease, transfer or other disposition of inventory, in any case in the ordinary course of business, (w) Real Property leases and other leases, licenses, subleases or sublicenses, in each case, granted to others in the ordinary course of business and which do not materially interfere with the business of the Borrower or the Restricted Subsidiaries, (x) any conveyance, sale, lease, transfer or other disposition of obsolete or worn out assets or assets no longer useful in the business of the Credit Parties, (y) licenses of Intellectual Property entered into in the ordinary course of business and (z) any conveyance, sale, transfer or other disposition of cash and/or Cash Equivalents.

Assignment Agreement” shall mean an Assignment and Assumption Agreement substantially in the form attached as Exhibit K hereto.

Auction Amount” shall have the meaning provided in Exhibit O hereto.

Auction Manager” shall mean Deutsche Bank, or another financial institution as shall be selected by Borrower in a written notice to Administrative Agent, in each case in its capacity as Auction Manager.

Auction Procedures” shall mean, collectively, the auction procedures, auction notice, return bid and Borrower Assignment Agreement in substantially the form set forth as Exhibit O hereto or such other form as is reasonably acceptable to Auction Manager and Borrower so long as the same are consistent with the provisions hereof; provided, however, Auction Manager, with the prior written consent of Borrower, may amend or modify the procedures, notices, bids and Borrower Assignment Agreement in connection with any Borrower Loan Purchase (but excluding economic terms of a particular auction after any Lender has validly tendered Term Loans requested in an offer relating to such auction, other than to increase the Auction Amount or raise the Discount Range applicable to such auction); provided, further, that no such amendments or modifications may be implemented after 24 hours prior to the date and time return bids are due in such auction.

Auto-Extension Letter of Credit” shall have the meaning provided by Section 2.03(b).

Available Amount” shall mean, on any date, an amount not less than zero, equal to:

(a) the aggregate amount of Excess Cash Flow for all fiscal years (or in the case of the fiscal year ending December 31, 2016, the aggregate amount of Excess Cash Flow attributable to the period from and including the first day of the first full fiscal quarter after the Closing Date through December 31, 2016) ending after the ClosingSixth Amendment Effective Date (not less than zero) (commencing with the fiscal year ending December 31, 20162020) and prior to such date minus the portion of such Excess Cash Flow that has been (or is, or previously was, required to be) applied to prepay the Loans after the Sixth Amendment Effective Date pursuant to Section 2.10(a)(iv) (except for the portion thereof constituting Declined Amounts) minus, without

 

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duplication, any voluntary prepayments of Loans after the Sixth Amendment Effective Date referenced in Section 2.10(a)(iv)(y) that previously reduced the amount of the required prepayment pursuant to Section 2.10(a)(iv), minus, without duplication, any voluntary prepayments of the Other First Lien Indebtedness after the Sixth Amendment Effective Date referenced in Section 2.10(a)(iv)(y) that previously reduced the amount of the required prepayment pursuant to Section 2.10(a)(iv), minus, without duplication, any reduction in the amount of Excess Cash Flow required to be prepaid after the Sixth Amendment Effective Date pursuant to Section 2.10(a)(iv) by reason of Section 2.10(a)(vii), in each case, in the aggregate for all fiscal years (or in the case of the fiscal year ending December 31, 2016, for the period from the first day of the first full fiscal quarter after the Closing Date through December 31, 2016) ending after the ClosingSixth Amendment Effective Date (commencing with the fiscal year ending December 31, 20162020) and prior to such date; plus

(b)   in the event of (i) the Revocation after the Sixth Amendment Effective Date of a Subsidiary that was designated as an Unrestricted Subsidiary, (ii) the merger, consolidation or amalgamation after the Sixth Amendment Effective Date of an Unrestricted Subsidiary with or into Borrower or a Restricted Subsidiary (where the surviving entity is Borrower or a Restricted Subsidiary) or (iii) the transfer or other conveyance of assets after the Sixth Amendment Effective Date of an Unrestricted Subsidiary to, or liquidation after the Sixth Amendment Effective Date of an Unrestricted Subsidiary into, Borrower or a Restricted Subsidiary, an amount equal to the sum of (x) the fair market value of the Investments deemed made by Borrower and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time such Subsidiary was designated as an Unrestricted Subsidiary, plus (y) the amount of the Investments of Borrower and its Restricted Subsidiaries in such Unrestricted Subsidiary made after such designation and prior to the time of such Revocation, merger, consolidation, amalgamation, conveyance or transfer (or of the assets transferred or conveyed, as applicable), other than, in the case of this clause (y), to the extent such Investments funded Investments by such Unrestricted Subsidiary into a Person that, after giving effect to the transaction described in clauses (i), (ii) or (iii) above, will be an Unrestricted Subsidiary; provided, that clauses (x) and (y) shall not be duplicative of any reductions in the amount of such Investments pursuant to the proviso to the definition of “Investments”; plus

(c)   an amount equal to the returns or refunds of Qualifying Investments (excluding (i) any interest, earnings, returns or other gains in respect of such Qualifying Investments determined in the manner set forth in Section 1.02(b) and (ii) Specified 10.04(k) Investment Returns) received by Borrower and its Restricted Subsidiaries from Persons other than Credit Parties after the ClosingSixth Amendment Effective Date to the extent not included in Consolidated Net Income; plus

(d)   the aggregate amount of Equity Issuance Proceeds (including upon conversion or exchange of a debt instrument into or for any Equity Interests (other than Disqualified Capital Stock)) received by Borrower from Permitted Equity Issuances (other than Permitted Equity Issuances pursuant to Section 11.03) after the ClosingSixth Amendment Effective Date and on or prior to such date; plus

(e)   the aggregate fair market value of assets or Property acquired in exchange for Equity Interests (other than Disqualified Capital Stock) of Borrower (other than Permitted Equity Issuances pursuant to Section 11.03) after the ClosingSixth Amendment Effective Date and on or prior to such date; minus

(f)   the aggregate amount of any (i) Investments made pursuant to Section 10.04(l), (ii) Restricted Payments made pursuant to Section 10.06(j) and (iii) Junior Prepayments pursuant to Section 10.09(a)(ii) (in each case, in reliance on the then-outstanding Available Amount) made since the ClosingSixth Amendment Effective Date and on or prior to such date; minus.

(g) the aggregate amount of any Restricted Payments made pursuant to Section 10.06(o).

Bail-In Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEAAffected Financial Institution.

Bail-In Legislation” shall mean, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule. and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act

 

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2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

Bankruptcy Code” shall mean the Title 11 of the United States Code entitled “Bankruptcy,” as now or hereinafter in effect, or any successor statute thereto.

Bankruptcy Proceedings” has the meaning set forth in Section 13.07(i).

“Benchmark Replacement” shall mean the sum of: (a) the alternate benchmark rate (which may be a SOFR-Based Rate) that has been selected by Administrative Agent and Borrower giving due consideration to (i) any selection or recommendation of a replacement rate or the mechanism for determining such a rate by the Relevant Governmental Body and/or (ii) any evolving or then-prevailing market convention for determining a rate of interest as a replacement to the LIBO Rate for U.S. dollar-denominated syndicated credit facilities and (b) the Benchmark Replacement Adjustment; provided that if the Benchmark Replacement as so determined would be less than zero, then the Benchmark Replacement will be deemed to be zero for the purposes of this Agreement; provided further that any such Benchmark Replacement shall be administratively feasible as determined by Administrative Agent in its reasonable discretion.

“Benchmark Replacement Adjustment” shall mean the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero), that has been selected by Administrative Agent and Borrower giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the LIBO Rate with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the LIBO Rate with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities at such time (for the avoidance of doubt, but without limiting the first parenthetical in this definition, such Benchmark Replacement Adjustment shall not be in the form of a reduction to the Applicable Margin).

“Benchmark Replacement Conforming Changes” shall mean, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Alternate Base Rate,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest and other administrative matters) that Administrative Agent decides in its reasonable discretion in consultation with Borrower may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if Administrative Agent reasonably decides in consultation with Borrower that adoption of any portion of such market practice is not administratively feasible or if Administrative Agent reasonably determines in consultation with Borrower that no market practice for the administration of the Benchmark Replacement exists, in such other manner of administration as Administrative Agent decides in consultation with Borrower is reasonably necessary in connection with the administration of this Agreement).

“Benchmark Replacement Date” shall mean the earlier to occur of the following events with respect to the LIBO Rate:

(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of the LIBO Screen Rate permanently or indefinitely ceases to provide the LIBO Screen Rate; or

(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.

“Benchmark Transition Event” shall mean the occurrence of one or more of the following events with respect to the LIBO Rate:

 

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(1) a public statement or publication of information by or on behalf of the administrator of the LIBO Screen Rate announcing that such administrator has ceased or will cease to provide the LIBO Screen Rate, permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the LIBO Screen Rate;

(2) a public statement or publication of information by the regulatory supervisor for the administrator of the LIBO Screen Rate, the U.S. Federal Reserve System, an insolvency official with jurisdiction over the administrator for the LIBO Screen Rate, a resolution authority with jurisdiction over the administrator for the LIBO Screen Rate or a court or an entity with similar insolvency or resolution authority over the administrator for the LIBO Screen Rate, in each case which states that the administrator of the LIBO Screen Rate has ceased or will cease to provide the LIBO Screen Rate permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the LIBO Screen Rate; and/or

(3) a public statement or publication of information by the regulatory supervisor for the administrator of the LIBO Screen Rate announcing that the LIBO Screen Rate is no longer representative.

“Benchmark Transition Start Date” shall mean (a) in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as stated in such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication) and (b) in the case of an Early Opt-in Election, the date specified by Administrative Agent or Required Lenders, as applicable, by notice to (and in consultation with) Borrower, Administrative Agent (in the case of such notice by Required Lenders) and the Lenders.

“Benchmark Unavailability Period” shall mean, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the LIBO Rate and solely to the extent that the LIBO Rate has not been replaced with a Benchmark Replacement, the period (x) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the LIBO Rate for all purposes hereunder in accordance with Section 1.08 and (y) ending at the time that a Benchmark Replacement has replaced the LIBO Rate for all purposes hereunder pursuant to Section 1.08.

Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.

Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

Borrower” has the meaning set forth in the introductory paragraph hereof.

Borrower Assignment Agreement” shall mean, with respect to any assignment to Borrower or one of its Subsidiaries pursuant to Section 13.05(d) consummated pursuant to the Auction Procedures, an Assignment and Acceptance Agreement substantially in the form of Annex C to the Auction Procedures (as may be modified from time to time as set forth in the definition of Auction Procedures).

Borrower Loan Purchase” shall mean any purchase of Term Loans by Borrower or one of its Subsidiaries pursuant to Section 13.05(d).

Borrower Materials” has the meaning set forth in Section 9.04.

 

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Borrowing” shall mean (a) Loans of the same Class and Type made, converted or continued on the same date and, in the case of LIBOR Loans, as to which a single Interest Period is in effect, or (b) a Swingline Loan.

Business Day” shall mean any day, except a Saturday or Sunday, (a) on which commercial banks are not authorized or required to close in New York and (b) if such day relates to a borrowing of, a payment or prepayment of principal of or interest on, a continuation or conversion of or into, or an Interest Period for, a LIBOR Loan or a notice by Borrower with respect to any such borrowing, payment, prepayment, continuation, conversion or Interest Period, that is also a day on which dealings in Dollar deposits are carried out in the London interbank market.

Calculation Date” means the last day of the most recent Test Period.

Capital Expenditures” shall mean, for any period any expenditures by Borrower or its Restricted Subsidiaries for the acquisition or leasing of fixed or capital assets (including Capital Lease Obligations) that should be capitalized in accordance with GAAP and any expenditures by such Person for maintenance, repairs, restoration or refurbishment of the condition or usefulness of Property of such Person that should be capitalized in accordance with GAAP; provided that the following items shall not constitute Capital Expenditures: (a) expenditures made in connection with the replacement, substitution, restoration or repair of assets to the extent financed with (x) insurance proceeds paid on account of the loss of or damage to the assets being replaced, restored or repaired or (y) awards of compensation arising from the taking by eminent domain or condemnation (or transfers in lieu thereof) of the assets being replaced; (b) the purchase price of assets purchased simultaneously with the trade-in of existing assets solely to the extent that the gross amount of such purchase price is reduced by the credit granted by the seller of such assets for the asset being traded in at such time; (c) the purchase of property or equipment to the extent financed with the proceeds of asset sales or other dispositions outside the ordinary course of business that are not required to be applied to prepay the Term Loans pursuant to Section 2.10(a)(iii); (d) expenditures that constitute Permitted Acquisitions or other Acquisitions not prohibited hereunder; (e) any capitalized interest expense reflected as additions to property in the consolidated balance sheet of Borrower and its Restricted Subsidiaries (including in connection with sale-leaseback transactions not prohibited hereunder); (f) any non-cash compensation or other non-cash costs reflected as additions to property in the consolidated balance sheet of Borrower and its Restricted Subsidiaries; and (g) capital expenditures relating to the construction or acquisition of any property or equipment which has been transferred to a Person other than Borrower or any of its Restricted Subsidiaries pursuant to a sale-leaseback transaction not prohibited hereunder and capital expenditures arising pursuant to sale-leaseback transactions.

Capital Lease” as applied to any Person, shall mean any lease of any Property by that Person as lessee that, in conformity with GAAP, is required to be classified and accounted for as a capital lease, finance lease or financial obligation on the balance sheet of that Person; provided, however, that for the avoidance of doubt, any lease that is accounted for by any Person as an operating lease as of the Closing Date and any similar lease entered into after the Closing Date by any Person may, in the sole discretion of Borrower, be accounted for as an operating lease and not as a Capital Lease.

Capital Lease Obligations” shall mean, for any Person, all obligations of such Person to pay rent or other amounts under a Capital Lease, and, for purposes of this Agreement, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP; provided, however, that for the avoidance of doubt, any lease that is accounted for by any Person as an operating lease as of the Closing Date and any similar lease entered into after the Closing Date by any Person may, in the sole discretion of Borrower, be accounted for as an operating lease and not as a Capital Lease.

Cash Collateralize” shall mean, in respect of an obligation, to provide and pledge (as a first priority perfected security interest) cash collateral in Dollars or other credit support, in each case, at a location and pursuant to documentation in form and substance reasonably satisfactory to (a) Administrative Agent, (b) in the case of obligations owing to an L/C Lender, such L/C Lender, and (c) in the case of obligations owing to the Swingline Lender, Swingline Lender (and “Cash Collateral” and “Cash Collateralization” have corresponding meanings).

Cash Equivalents” shall mean, for any Person: (a) direct obligations of the United States, or of any agency thereof, or obligations guaranteed as to principal and interest by the United States, or by any agency thereof, in either case maturing not more than one year from the date of acquisition thereof by such Person; (b) time deposits, certificates of deposit or bankers’ acceptances (including eurodollar deposits) issued by (i) any bank or trust company organized

 

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under the laws of the United States or any state thereof and having capital, surplus and undivided profits of at least $500.0 million that is assigned at least a “B” rating by Thomson Financial BankWatch or (ii) any Lender or bank holding company owning any Lender (in each case, at the time of acquisition); (c) commercial paper maturing not more than one year from the date of acquisition thereof by such Person and (i) issued by any Lender or bank holding company owning any Lender or (ii) rated at least “A-2” or the equivalent thereof by S&P or at least “P-2” or the equivalent thereof by Moody’s, respectively, (in each case, at the time of acquisition); (d) repurchase obligations with a term of not more than thirty (30) days for underlying securities of the types described in clause (a) above or (e) below entered into with a bank meeting the qualifications described in clause (b) above (in each case, at the time of acquisition); (e) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, or by any political subdivision or taxing authority thereof or by any foreign government, and rated at least “A” by S&P or “A” by Moody’s (in each case, at the time of acquisition); (f) securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any Lender or any commercial bank satisfying the requirements of clause (b) above (in each case, at the time of acquisition); (g) money market mutual funds that invest primarily in the foregoing items (determined at the time such investment in such fund is made); or (h) solely with respect to any Foreign Subsidiary, (i) marketable direct obligations issued by, or unconditionally guaranteed by, the country in which such Foreign Subsidiary maintains its chief executive office or principal place of business, or issued by any agency of such country and backed by the full faith and credit of such country, and rated at least “A” or the equivalent thereof by S&P or “A2” or the equivalent thereof by Moody’s (in each case, at the time of acquisition), (ii) time deposits, certificates of deposit or bankers’ acceptances issued by any commercial bank which is organized and existing under the laws of the country in which such Foreign Subsidiary maintains its chief executive office and principal place of business, or payable to a Company promptly following demand and maturing within one year of the date of acquisition and (iii) other customarily utilized high-quality or cash equivalent-type Investments in the country where such Foreign Subsidiary maintains its chief executive office or principal place of business.

Cash Management Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements.

Cash Management Bank” shall mean (a) any Person that is a party to a Cash Management Agreement with Borrower and/or any of its Restricted Subsidiaries if such Person was, at the date of entering into such Cash Management Agreement, an Agent, a Lender or an Affiliate of an Agent or a Lender and (b) any Person that is a party to a Cash Management Agreement with Borrower and/or any of its Restricted Subsidiaries that was in effect on the Closing Date or the Sixth Amendment Effective Date, if such Person becomes an Agent, a Lender or an Affiliate of an Agent or a Lender within thirty (30) days of the Closing Date or the Sixth Amendment Effective Date, as applicable, and in the case of each of clauses (a) and (b), such Person executes and delivers to Administrative Agent a letter agreement in form and substance reasonably acceptable to Administrative Agent pursuant to which such Person (i) appoints Collateral Agent as its agent under the applicable Credit Documents and (ii) agrees to be bound by the provisions of Section 12.03.

Casualty Event” shall mean any loss of title or any loss of or damage to or destruction of, or any condemnation or other taking (or settlement in lieu thereof) (including by any Governmental Authority) of, any Property. “Casualty Event” shall include, but not be limited to, any taking of all or any part of any Real Property of Borrower or any of its Restricted Subsidiaries or any part thereof, in or by condemnation or other eminent domain proceedings pursuant to any Law (or settlement in lieu thereof), or by reason of the temporary requisition of the use or occupancy of all or any part of any Real Property of Borrower or any of its Restricted Subsidiaries or any part thereof by any Governmental Authority, civil or military.

CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. § 9601 et seq.

Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in

 

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connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

Change of Control” shall be deemed to have occurred if:

(a)        Holdco and RRR at any time shall cease to own directly (or, with respect to RRR after the VoteCo SPE Reorganization Date, indirectly) one hundred percent (100%) of the Equity Interests in Borrower;

(b)        any “Person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act (but excluding (i) any employee benefit plan of such Person or its subsidiaries, any Person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan, or any Person formed as a holding company for Borrower (in a transaction where the Voting Stock of Borrower outstanding prior to such transaction is converted into or exchanged for the Voting Stock of the surviving or transferee Person constituting all or substantially all of the outstanding shares of such Voting Stock of such surviving or transferee Person (immediately after giving effect to such issuance)) and (ii) the Fertitta Holders)), becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person or group shall be deemed to have “beneficial ownership” of all securities that such Person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of more than 35% of the Voting Stock of Borrower on a fully-diluted basis (and taking into account all such securities that such “Person” or “group” has the right to acquire pursuant to any option right) which Voting Stock represents, at any time, voting power that is equal to or more than the voting power represented by the Voting Stock “beneficially owned,” directly or indirectly (and taking into account all such securities that the Fertitta Holders have the right to acquire pursuant to any option right), by the Fertitta Holders at such time;

(c)        RRR shall cease to hold, directly (or after the VoteCo SPE Reorganization Date, indirectly through the VoteCo SPE) 100% of the voting power in Borrower;

(d)        any “change of control” (or any comparable term) in any document pertaining to (w) the Senior Unsecured Notes, (x) the 2020 Senior Unsecured Notes, (y) any other Junior Financing or (z) any other Indebtedness of any Holding Company, Borrower or any Restricted Subsidiary constituting Material Indebtedness;

(e)        at any time after the VoteCo SPE Reorganization Date, RRR at any time shall cease to own directly one hundred percent (100%) of the Equity Interests in the VoteCo SPE; or

(f)        at any time after the VoteCo SPE Reorganization Date, the VoteCo SPE shall cease to hold, directly or indirectly, one hundred percent (100%) of the voting power in Borrower.

Charges” has the meaning set forth in Section 13.18.

Claim” has the meaning set forth in Section 13.05(i)(i).

Class” has the meaning set forth in Section 1.03.

Closing Date” shall mean the date on which the initial extension of credit is made hereunder, which date is June 8, 2016.

Closing Date Refinancing” shall mean the repayment and replacement of all loans and commitments under the Existing Credit Agreement.

 

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“Closing Date Revolving Commitment” means, collectively, (a) from the Closing Date through the Fifth Amendment Effective Date, (i) a Revolving Commitment established on the Closing Date and (ii) the Fourth Amendment Incremental Revolving Facility Commitments established on the Fourth Amendment Effective Date and (b) after the Fifth Amendment Effective Date, a Revolving Commitment referred to in clause (a) that is not a Fifth Amendment Revolving Commitment.

“Closing Date Revolving Facility” shall mean the credit facility comprising the Closing Date Revolving Commitments and any Incremental Revolving Commitments.

Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.

Collateral” shall mean all of the Pledged Collateral, the Mortgaged Real Property, the Mortgaged Vessels (if any), all Property encumbered pursuant to Sections 9.08, 9.11 and 9.15, and all other Property of a Credit Party, Holding Company or RRR whether now owned or hereafter acquired, upon which a Lien securing the Obligations is granted or purported to be granted under any Security Document. “Collateral” shall not include any assets or Property that has been released (in accordance with the Credit Documents) from the Lien granted to the Collateral Agent pursuant to the Collateral Documents, unless and until such time as such assets or Property are required by the Credit Documents to again become subject to a Lien in favor of the Collateral Agent.

Collateral Account” shall mean (a) a Deposit Account (as defined in the UCC) of Borrower with respect to which Collateral Agent has “control” (as defined in Section 9-104 of the UCC) or (b) a Securities Account (as defined in the UCC) of Borrower with respect to which Collateral Agent has “control” (as defined in Section 9-106 of the UCC).

Collateral Agent” has the meaning set forth in the introductory paragraph hereof.

Commitments” shall mean the Revolving Commitments, the Term Loan Commitments, the Swingline Commitment, any Other Commitments and any New Term Loan Commitments.

Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

Companies” shall mean Borrower and its Subsidiaries; and “Company” shall mean any one of them.

“Compliance Certificate” has the meaning set forth in Section 9.04(c).

“Compounded SOFR” shall mean the compounded average of SOFRs for the applicable Corresponding Tenor, with the rate, or methodology for this rate, and conventions for this rate (which may include compounding in arrears with a lookback and/or suspension period as a mechanism to determine the interest amount payable prior to the end of each Interest Period) being established by Administrative Agent in accordance with:

 

  (1)

the rate, or methodology for this rate, and conventions for this rate selected or recommended by the Relevant Governmental Body for determining compounded SOFR; provided that:

 

  (2)

if, and to the extent that, Administrative Agent determines that Compounded SOFR cannot be determined in accordance with clause (1) above, then the rate, or methodology for this rate, and conventions for this rate that Administrative Agent determines in its reasonable discretion are substantially consistent with any evolving or then-prevailing market convention for determining compounded SOFR for U.S. dollar-denominated syndicated credit facilities at such time;

provided, further, that if Administrative Agent reasonably decides in consultation with Borrower that any such rate, methodology or convention determined in accordance with clause (1) or clause (2) is not administratively feasible for Administrative Agent, then Compounded SOFR will be deemed unable to be determined for purposes of the definition of “Benchmark Replacement.”

 

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Consolidated Cash Interest Expense” shall mean, for any Test Period, Consolidated Interest Expense paid in cash with respect to such Test Period net of cash interest income (other than cash interest income in respect of notes receivable and similar items), of Borrower and its Restricted Subsidiaries for such Test Period as determined on a consolidated basis in accordance with GAAP, minus the sum (without duplication) of any of the following to the extent deemed to be included in Consolidated Interest Expense and paid in cash with respect to such Test Period: (a) payments received under Swap Contracts relating to interest rates with respect to such Test Period, (b) arrangement, commitment or upfront fees and similar financing fees, original issue discount, and redemption or prepayment premiums payable during or with respect to such Test Period, (c) interest payable during or with respect to such Test Period with respect to Indebtedness that has been Discharged, (d) any cash costs associated with breakage or termination in respect of hedging agreements for interest rates payable during such Test Period and costs and fees associated with obtaining Swap Contracts and fees payable thereunder and (e) fees and expenses associated with the consummation of the Transactions. Consolidated Cash Interest Expense shall exclude interest expense in respect of (a) Indebtedness that is excluded from Consolidated Indebtedness by reason of clause (ii), (iii) or (iv) of the proviso thereof, to the extent of such exclusion or (b) Indebtedness not in excess of $500.0 million at any one time outstanding, which constitutes Development Expenses, or the proceeds of which were applied to fund Development Expenses (but only for so long as such Indebtedness or such funded expenses, as the case may be, constitute Development Expenses). For purposes of determining Consolidated Cash Interest Expense for any Test Period that includes any period ending prior to the first anniversary of the Closing Date, Consolidated Cash Interest Expense shall be an amount equal to actual Consolidated Cash Interest Expense from the Closing Date through the date of determination multiplied by a fraction the numerator of which is 365 and the denominator of which is the number of days from the Closing Date through the date of determination.

Consolidated Current Assets” means, with respect to any Person at any date, the total consolidated current assets of such Person and its Subsidiaries (other than Unrestricted Subsidiaries) that would, in accordance with GAAP, be classified as current assets on a consolidated balance sheet of such Person and its Subsidiaries (other than Unrestricted Subsidiaries), other than (x) cash and Cash Equivalents and (y) the current portion of deferred income tax assets.

Consolidated Current Liabilities” means, with respect to any Person at any date, all liabilities of such Person and its Subsidiaries (other than Unrestricted Subsidiaries) at such date that would, in accordance with GAAP, be classified as current liabilities on a consolidated balance sheet of such Person and its Subsidiaries (other than Unrestricted Subsidiaries), other than (x) the current portion of any Indebtedness and (y) the current portion of deferred income taxes.

Consolidated EBITDA” shall mean, for any Test Period, the sum (without duplication) of Consolidated Net Income for such Test Period; plus

(a)     in each case to the extent deducted in calculating such Consolidated Net Income:

(i)     provisions for taxes based on income or profits or capital gains, plus franchise or similar taxes, of Borrower and its Restricted Subsidiaries for such Test Period;

(ii)     Consolidated Interest Expense (net of interest income (other than interest income in respect of notes receivable and similar items)) of Borrower and its Restricted Subsidiaries for such Test Period, whether paid or accrued and whether or not capitalized;

(iii)     any cost, charge, fee or expense (including discounts and commissions and including fees and charges incurred in respect of letters of credit or bankers acceptance financings) (or any amortization of any of the foregoing) associated with any issuance (or proposed issuance) of debt, or equity or any refinancing transaction (or proposed refinancing transaction) or any amendment or other modification of any debt instrument;

(iv)    depreciation and amortization (including amortization of goodwill and other intangibles but excluding amortization of prepaid cash expenses that were paid in a prior Test Period);

 

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(v)     any Pre-Opening Expenses;

(vi)    the amount of any restructuring charges or reserve (including those relating to severance, relocation costs and one-time compensation charges), costs incurred in connection with any non-recurring strategic initiatives, other business optimization expenses (including incentive costs and expenses relating to business optimization programs and signing, retention and completion bonuses) and any unusual or non-recurring charges or items of loss or expense (including, without limitation, losses on asset sales (other than asset sales in the ordinary course of business));

(vii)   any charges, fees and expenses (or any amortization thereof) (including, without limitation, all legal, accounting, advisory or other transaction-related fees, charges, costs and expenses and any bonuses or success fee payments related to the Transactions) related to the Transactions, any Permitted Acquisition or Investment (including any other Acquisition) or disposition (or any such proposed acquisition, Investment or disposition) (including amortization or write offs of debt issuance or deferred financing costs, premiums and prepayment penalties), in each case, whether or not successful;

(viii)  any losses resulting from mark to market accounting of Swap Contracts or other derivative instruments;

(ix)    expenses actually reimbursed in cash to Borrower or a Restricted Subsidiary by an Unrestricted Subsidiary pursuant to a Subsidiary Cost Allocation Agreement;

(x)     Restricted Payments made by Borrower and the Restricted Subsidiaries to Holdco pursuant to Section 10.06(p) (net of Subsidiary Tax Sharing Payments);

(xi)    to the extent included in calculating such Consolidated Net Income, non-cash items decreasing such Consolidated Net Income for such Test Period, other than the accrual of revenue in the ordinary course of business, and other than any items which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges for any prior Test Period subsequent to the issue date which was not added back to Consolidated EBITDA when accrued; minus

(b)  each of the following:

 

  (i)

to the extent included in calculating such Consolidated Net Income, non-cash items increasing such Consolidated Net Income for such Test Period, other than the accrual of revenue in the ordinary course of business, and other than any items which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges for any prior Test Period subsequent to the issue date which was not added back to Consolidated EBITDA when accrued;

 

  (ii)

to the extent included in calculating such Consolidated Net Income, the amount of any gains resulting from mark to market accounting of Swap Contracts or other derivative instruments;

 

  (iii)

to the extent included in calculating such Consolidated Net Income, any unusual or non-recurring items of income or gain to the extent increasing Consolidated Net Income for such Test Period; and

 

  (iv)

distributions made by Borrower to the Holding Companies during such period pursuant to Sections 10.06(m) and (n); plus

(c)   the amount of cost savings, operating expense reductions and synergies projected by Borrower in good faith to be realized as a result of specified actions taken or with respect to which steps have been initiated (in the good faith determination of Borrower) during such Test Period (or with respect to (x) the Transactions, are reasonably expected to be initiated within twelve (12) months of the Closing Date, or (y) Specified Transactions, are reasonably expected to be initiated within twelve (12) months of the closing date of the Specified Transaction), including in connection with the Transactions or any Specified Transaction (calculated on a Pro Forma Basis as though such cost savings, operating expense reductions and synergies had been realized during

 

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the entirety of such Test Period), net of the amount of actual benefits realized during such Test Period from such actions; provided that (i) a duly completed Officer’s Certificate of Borrower shall be delivered to Administrative Agent together with the applicable Section 9.04 Financials, providing reasonable detail with respect to such cost savings, operating expense reductions and synergies and certifying that such savings, operating expense reductions and synergies are reasonably expected to be realized within twelve (12) months of the taking of such specified actions and are factually supportable in the good faith judgment of Borrower, (ii) such actions are to be taken within (A) in the case of any such cost savings, operating expense reductions and synergies in connection with the Transactions, twelve (12) months after the Closing Date and (B) in all other cases, within twelve (12) months after the consummation of such Specified Transaction, restructuring or implementation of an initiative that is expected to result in such cost savings, expense reductions or synergies, (iii) no cost savings, operating expense reductions and synergies shall be added pursuant to this clause (c) to the extent duplicative of any expenses or charges otherwise added to Consolidated EBITDA, whether through a pro forma adjustment or otherwise, for such Test Period, and (iv) projected amounts (and not yet realized) may no longer be added in calculating Consolidated EBITDA pursuant to this clause (c) to the extent more than twelve (12) months have elapsed after the specified action taken in order to realize such projected cost savings, operating expense reductions and synergies; provided, that the aggregate amount of additions made to Consolidated EBITDA for any Test Period pursuant to this clause (c) and Section 1.05(c) shall not (i) exceed 15.0% of Consolidated EBITDA for such Test Period (after giving effect to this clause (c) and Section 1.05(c)) or (ii) be duplicative of one another; plus

(d) to the extent not included in Consolidated Net Income or, if otherwise excluded from Consolidated EBITDA due to the operation of clause (b)(iii) above, the amount of insurance proceeds received during such Test Period or after such Test Period and on or prior to the date the calculation is made with respect to such Test Period, attributable to any property which has been closed or had operations curtailed for such Test Period; provided that such amount of insurance proceeds shall only be included pursuant to this clause (d) to the extent of the amount of insurance proceeds plus Consolidated EBITDA attributable to such property for such Test Period (without giving effect to this clause (d)) does not exceed Consolidated EBITDA attributable to such property during the most recently completed four fiscal quarters for which financial results are available that such property was fully operational (or if such property has not been fully operational for four consecutive fiscal quarters for which financial results are available prior to such closure or curtailment, the Consolidated EBITDA attributable to such property during the Test Period prior to such closure or curtailment (for which financial results are available) annualized over four fiscal quarters); plus

(e) cash receipts (or any netting arrangements resulting in reduced cash expenditures) not representing Consolidated EBITDA or Consolidated Net Income in any Test Period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to paragraph (b) above for any previous Test Period and not added back.

Consolidated EBITDA shall be further adjusted:

(A) to include the Consolidated EBITDA of (i) any Person, property, business or asset (including a management agreement or similar agreement) (other than an Unrestricted Subsidiary) acquired by Borrower or any Restricted Subsidiary during such Test Period and (ii) any Unrestricted Subsidiary that is revoked and converted into a Restricted Subsidiary during such Test Period, in each case, based on the Consolidated EBITDA of such Person (or attributable to such property, business or asset) for such period (including the portion thereof occurring prior to such acquisition or Revocation), determined as if references to Borrower and its Restricted Subsidiaries in Consolidated Net Income and other defined terms therein were to such Person and its Subsidiaries; provided, that, without duplication of clause (D) below, for purposes of determining Consolidated EBITDA for any period ending prior to the first anniversary of any Tribal Gaming Opening Date, the Tribal Management Fees (excluding any one time development fees) received by Borrower and its Restricted Subsidiaries from the corresponding Tribe after such Tribal Gaming Opening Date and during the applicable Test Period and included in Consolidated Net Income shall be multiplied by a fraction the numerator of which is 365 and the denominator of which is the number of days from the applicable Tribal Gaming Opening Date through the end of such Test Period;

 

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(B) to exclude the Consolidated EBITDA of (i) any Person, property, business or asset (other than an Unrestricted Subsidiary) sold, transferred or otherwise disposed of, closed or classified as discontinued operations by Borrower or any Restricted Subsidiary during such Test Period and (ii) any Restricted Subsidiary that is designated as an Unrestricted Subsidiary during such Test Period, in each case based on the actual Consolidated EBITDA of such Person for such period (including the portion thereof occurring prior to such sale, transfer, disposition, closing, classification or conversion), determined as if references to Borrower and its Restricted Subsidiaries in Consolidated Net Income and other defined terms therein were to such Person and its Subsidiaries;

(C) in the event of any Expansion Capital Expenditures that were opened for business during such Test Period, by multiplying the Consolidated EBITDA attributable to such Expansion Capital Expenditures (as determined by Borrower) in respect of the first three (3) complete fiscal quarters following opening of the business representing such Expansion Capital Expenditures by: (x) 4 (with respect to the first such quarter), (y) 2 (with respect to the first two such quarters), and (z) 4/3 (with respect to the first three such quarters) and, for the avoidance of doubt, excluding Consolidated EBITDA attributable to such Expansion Capital Expenditures during the quarter in which the business representing such Expansion Capital Expenditure opened (unless such business opened on the first day of a fiscal quarter);

(D) in the event of any Development Project that was opened for business during such Test Period, by multiplying the Consolidated EBITDA attributable to such Development Project (as determined by Borrower) in respect of the first three (3) complete fiscal quarters following opening of the business representing such Development Project by: (x) 4 (with respect to the first such quarter), (y) 2 (with respect to the first two such quarters), and (z) 4/3 (with respect to the first three such quarters) and, for the avoidance of doubt, excluding Consolidated EBITDA attributable to such Development Project during the quarter in which such Development Project opened (unless such business opened on the first day of a fiscal quarter); and

(E) in any fiscal quarter during which a purchase of property that prior to such purchase was subject to any operating lease that will be terminated in connection with such purchase shall occur and during the three (3) following fiscal quarters, by increasing Consolidated EBITDA by an amount equal to the quarterly payment in respect of such lease (as if such purchase did not occur) times (a) four (4) (in the case of the quarter in which such purchase occurs), (b) three (3) (in the case of the quarter following such purchase), (c) two (2) (in the case of the second quarter following such purchase) and (d) one (1) (in the case of the third quarter following such purchase), all as determined on a consolidated basis for Borrower and its Restricted Subsidiaries.

Notwithstanding anything to the contrary contained herein, Consolidated EBITDA shall be deemed to be $111,116,277 for the fiscal quarter ended on June 30, 2015; $97,271,265 for the fiscal quarter ended on September 30, 2015; $124,148,274 for the fiscal quarter ended on December 31, 2015; and $133,825,737 for the fiscal quarter ended on March 31, 2016.

Consolidated First Lien Leverage Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated Indebtedness of Borrower and its Restricted Subsidiaries that is secured by Liens on property or assets of Borrower or its Restricted Subsidiaries as of such date that ranks pari passu or senior to the Liens securing the Obligations to (b) Consolidated EBITDA for the Test Period most recently ended prior to such date.

Consolidated Indebtedness” shall mean, as at any date of determination, the aggregate amount of all Indebtedness of Borrower and its Restricted Subsidiaries (other than any such Indebtedness that has been Discharged) on such date, in an amount that would be reflected on a balance sheet on such date prepared on a consolidated basis in accordance with GAAP, consisting of Indebtedness for borrowed money, obligations in respect of Capital Leases, purchase money Indebtedness, Indebtedness of the kind described in clause (d) of the definition of “Indebtedness”, Indebtedness evidenced by promissory notes and similar instruments and Contingent Obligations in respect of any of the foregoing (to be included only to the extent set forth in clause (iii) below); provided that (i) Consolidated Indebtedness shall not include (A) Indebtedness in respect of letters of credit (including Letters of Credit), except to the extent of unreimbursed amounts thereunder or (B) Indebtedness of the type described in clause (i) of the definition thereof, (ii) the amount of Consolidated Indebtedness, in the case of Indebtedness of a Restricted Subsidiary that is not a Wholly Owned Subsidiary, shall be reduced by an amount directly proportional to the amount (if any) by which Consolidated EBITDA was reduced (including through the calculation of Consolidated Net Income) in respect of such non-controlling interest in such Restricted Subsidiary owned by a Person other than Borrower or any of its Restricted

 

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Subsidiaries, (iii) Consolidated Indebtedness shall not include Contingent Obligations (except for Contingent Obligations incurred pursuant to Section 10.01(s) constituting guarantees permitted by Section 10.04(v)), provided, however, that if and when any such Contingent Obligation that does not constitute Consolidated Indebtedness (other than the LandCo Support Agreement) is demanded for payment from Borrower or any of its Restricted Subsidiaries, then the amounts of such Contingent Obligation shall be included in such calculations of Consolidated Indebtedness, (iv) the amount of Consolidated Indebtedness, in the case of Indebtedness of a Subsidiary of Borrower that is not a Guarantor and which Indebtedness is not guaranteed by any Credit Party, any Holding Company or RRR shall be reduced by an amount directly proportional to the amount by which Consolidated EBITDA was reduced due to the undistributed earnings of such Subsidiary being excluded from Consolidated Net Income pursuant to clause (d) thereof and (v) Consolidated Indebtedness shall exclude Indebtedness not in excess of $500.0 million at any one time outstanding, which constitutes Development Expenses, or the proceeds of which were applied to fund Development Expenses (but only for so long as such Indebtedness constitutes Development Expenses). Notwithstanding the foregoing, for purposes of determining compliance with Section 10.08 at any time a Default Quarter is included in the Test Period then most recently ended prior to a date of determination, the aggregate principal amount of the Loans repaid pursuant to Section 2.10(a)(v) with the proceeds of a Permitted Equity Issuance consummated in reliance on Section 11.03 during such Default Quarter shall be deemed to be outstanding and included as “Consolidated Indebtedness” at such time.

Consolidated Interest Expense” shall mean, for any Test Period, the sum of interest expense of Borrower and its Restricted Subsidiaries for such Test Period as determined on a consolidated basis in accordance with GAAP, plus, to the extent deducted in arriving at Consolidated Net Income and without duplication, (a) the interest portion of payments on Capital Leases, (b) amortization of financing fees, debt issuance costs and interest or deferred financing or debt issuance costs, (c) arrangement, commitment or upfront fees, original issue discount, redemption or prepayment premiums, (d) commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing, (e) interest with respect to Indebtedness that has been Discharged, (f) the accretion or accrual of discounted liabilities during such period, (g) interest expense attributable to the movement of the mark-to-market valuation of obligations under Swap Contracts or other derivative instruments, (h) net payments made under Swap Contracts relating to interest rates with respect to such Test Period and any costs associated with breakage in respect of hedging agreements for interest rates, (i) all interest expense consisting of liquidated damages for failure to timely comply with registration rights obligations and financing fees, all as calculated on a consolidated basis in accordance with GAAP, (j) fees and expenses associated with the consummation of the Transactions, (k) annual or quarterly agency fees paid to Administrative Agent and (l) costs and fees associated with obtaining Swap Contracts and fees payable thereunder.

Consolidated Net Income” shall mean, for any Test Period, the aggregate of the net income of Borrower and its Restricted Subsidiaries for such Test Period, on a consolidated basis, determined in accordance with GAAP; provided that, without duplication:

(a) any gain or loss (together with any related provision for taxes thereon) realized in connection with (i) any asset sale or (ii) any disposition of any securities by such Person or any of its Restricted Subsidiaries shall be excluded;

(b) any extraordinary gain or loss (together with any related provision for taxes thereon) shall be excluded;

(c) the net income of any Person that (i) is not a Restricted Subsidiary, (ii) is accounted for by the equity method of accounting, (iii) is an Unrestricted Subsidiary or (iv) is a Restricted Subsidiary (or former Restricted Subsidiary) with respect to which a Trigger Event has occurred following the occurrence and during the continuance of such Trigger Event shall be excluded; provided that Consolidated Net Income of Borrower and its Restricted Subsidiaries shall be increased by the amount of dividends or distributions or other payments (including management fees) that are actually paid or are payable in cash to Borrower or a Restricted Subsidiary thereof in respect of such period by such Persons (or to the extent converted into cash) (other than, for avoidance of doubt, payments made by Unrestricted Subsidiaries pursuant to the Subsidiary Tax Sharing Agreements and the Subsidiary Cost Allocation Agreements, and Project Reimbursements and other Subsidiary Tax Sharing Payments);

 

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(d) the undistributed earnings of any Subsidiary of Borrower that is not a Guarantor (including, for the avoidance of doubt, any Unrestricted Subsidiary) or any Joint Venture that is not a Subsidiary to the extent that, on the date of determination the payment of cash dividends or similar cash distributions by such Subsidiary or Joint Venture (or loans or advances by such subsidiary to any parent company) are not permitted by the terms of any Contractual Obligation (other than under any Credit Document) or Requirement of Law applicable to such Subsidiary or Joint Venture shall be excluded, unless such restrictions with respect to the payment of cash dividends and other similar cash distributions have been waived; provided that Consolidated Net Income of Borrower and its Restricted Subsidiaries shall be increased by the amount of dividends or distributions or other payments (including management fees) that are actually paid or are payable in cash to Borrower or a Restricted Subsidiary (not subject to such restriction) thereof in respect of such period by such Subsidiaries or Joint Ventures (or to the extent converted into cash) (other than, for avoidance of doubt, payments made by Unrestricted Subsidiaries pursuant to the Subsidiary Tax Sharing Agreements and the Subsidiary Cost Allocation Agreements, and Project Reimbursements and other Subsidiary Tax Sharing Payments);

(e) any goodwill or other asset impairment charges or other asset write-offs or write downs, including any resulting from the application of Accounting Standards Codification Nos. 350 and No. 360, and any expenses or charges relating to the amortization of intangibles as a result of the application of Accounting Standards Codification No. 805, shall be excluded;

(f) any non-cash charges or expenses related to the repurchase of stock options to the extent not prohibited by this Agreement, and any non-cash charges or expenses related to the grant, issuance or repricing of, or any amendment or substitution with respect to, or otherwise in respect of, stock appreciation or similar rights, stock options, restricted stock, or other Equity Interests or other equity based awards or rights or equivalent instruments, shall be excluded;

(g) the cumulative effect of a change in accounting principles shall be excluded;

(h) any expenses or reserves for liabilities shall be excluded to the extent that Borrower or any of its Restricted Subsidiaries is entitled to indemnification therefor under binding agreements; provided that any such liabilities for which Borrower or any of its Restricted Subsidiaries is not actually indemnified shall reduce Consolidated Net Income for the period in which it is determined that Borrower or such Restricted Subsidiary will not be indemnified (to the extent such liabilities would otherwise reduce Consolidated Net Income without giving effect to this clause (h));

(i) losses, to the extent covered by insurance and actually reimbursed, or, so long as Borrower has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is (i) not denied by the applicable carrier in writing within 180 days and (ii) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days), expenses with respect to liability or casualty events or business interruption shall be excluded;

(j) gains and losses resulting solely from fluctuations in currency values and the related tax effects shall be excluded, and charges relating to Accounting Standards Codification Nos. 815 and 820 shall be excluded;

(k) the net income (or loss) of a Restricted Subsidiary that is not a Wholly Owned Subsidiary shall be included in an amount proportional to Borrower’s economic ownership interest therein; and

(l) the amount of any Project Reimbursements received by Borrower or any of its Restricted Subsidiaries shall be excluded.

Consolidated Total Leverage Ratio” shall mean, as at any date of determination, the ratio of (a) Consolidated Indebtedness as of such date to (b) Consolidated EBITDA for the Test Period most recently ended prior to such date; provided, however that for purposes of (i) Section 2.09(b)(ii), (ii) determining whether Borrower is in compliance on a Pro Forma Basis under the Financial Maintenance Covenants pursuant to Sections 10.04(m), 10.06(i), 10.06(j), 10.06(k), 10.09(a)(i), 10.09(a)(ii) and 10.09(a)(iii), (iii) determining whether the maximum

 

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permitted Consolidated Total Leverage Ratio is satisfied pursuant to Sections 10.04(m), 10.06(j), 10.06(k), 10.09(a)(ii) and 10.09(a)(iii) and (iv) determining the Applicable ECF Percentage for any fiscal year, the amount described in clause (a) above shall be calculated without giving effect to clause (v) of the second proviso of the definition of Consolidated Indebtedness.

Contingent Obligation” shall mean, as to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person, whether or not contingent, (a) to purchase any such primary obligation or any property constituting direct or indirect security therefor; (b) to advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation; or (d) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided, however, that the term Contingent Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business and any lease guarantees executed by any Company in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for which such Person may be liable pursuant to the terms of the instrument evidencing such Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated potential liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.

Contractual Obligation” shall mean as to any Person, any provision of any security issued by such Person or of any mortgage, deed of trust, security agreement, pledge agreement, promissory note, indenture, credit or loan agreement, guaranty, securities purchase agreement, instrument, lease, contract, agreement or other contractual obligation to which such Person is a party or by which it or any of its Property is bound or subject.

“Control” means the possession, directly or indirectly, of the power to (x) vote more than fifty percent (50%) (or, for purposes of Section 10.07 and the definition of Station Permitted Assignee, ten percent (10%)) of the outstanding voting interests of a Person or (y) direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto. For purposes of this Agreement, each of Holdco, RRR and, from and after the VoteCo SPE Reorganization Date, the VoteCo SPE shall be deemed to Control the Borrower.

Core Property” means, collectively, (a) the hotel, resort and casino properties commonly known as Palace Station, Boulder Station, Sunset Station, Red Rock Casino, Resort and Spa, Green Valley Ranch Resort, Casino and Spa, Texas Station Gambling Hall & Hotel, Santa Fe Station Hotel & Casino and Fiesta Henderson Casino Hotel and (b) each casino or hotel property hereafter owned or operated by Borrower or a Restricted Subsidiary (but not any such property that is (i) owned by an Unrestricted Subsidiary or (ii) so long as not owned by Borrower or a Restricted Subsidiary, operated by an Unrestricted Subsidiary) whose individual Consolidated EBITDA (determined in a manner acceptable to the Administrative Agent) for the then most recently ended twelve-month period for which financial statements are then available exceeds $15,000,000, excluding any real property or improvements that have been released from the Liens of the Collateral Agent in accordance with the terms of the Credit Documents.

“Corresponding Tenor” with respect to a Benchmark Replacement means a tenor (including overnight) having approximately the same length (disregarding business day adjustment) as the applicable tenor for the applicable Interest Period with respect to the LIBO Rate.

“Covered Entity” shall mean any of the following: (a) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b), (b) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (c) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

“Covered Party” has the meaning set forth in Section 13.22.

 

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Covered Taxes” shall mean (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Credit Party, any Holding Company or RRR under this Agreement, any Note, any Guarantee or any other Credit Document and (b) to the extent not otherwise described in the foregoing clause (a), Other Taxes.

Credit Agreement Refinancing Indebtedness” means (a) Permitted First Priority Refinancing Debt, (b) Permitted Second Priority Refinancing Debt, (c) Permitted Unsecured Refinancing Debt or (d) other Indebtedness incurred pursuant to a Refinancing Amendment (including, without limitation, Other Term Loans and Other Revolving Loans), in each case, issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace or refinance, in whole or part, then-existing Term Loans, Revolving Loans (and/or unused Revolving Commitments) and/or Credit Agreement Refinancing Indebtedness (“Refinanced Debt”); provided that (i) such Indebtedness has the same or a later maturity (provided that if such Indebtedness is subordinated to the Obligations or secured by a junior lien on the Collateral or is unsecured, then its maturity shall be no earlier than the 91st day after the Final Maturity Date) and, except in the case of any Indebtedness consisting of a revolving credit facility, a Weighted Average Life to Maturity equal to or greater than, the Refinanced Debt, (ii) such Indebtedness shall not have a greater principal amount than the principal amount of the Refinanced Debt, plus, accrued interest, fees and premiums (if any) thereon, plus, other fees and expenses associated with the refinancing (including any upfront fees and original issue discount), (iii) such Refinanced Debt shall be repaid, defeased or satisfied and discharged on a dollar-for-dollar basis, and all accrued interest, fees and premiums (if any) in connection therewith shall be paid, on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or obtained, (iv) to the extent such Credit Agreement Refinancing Indebtedness consists of a revolving credit facility, the Revolving Commitments shall be reduced and/or terminated, as applicable, such that the Total Revolving Commitments (after giving effect to such Credit Agreement Refinancing Indebtedness and such reduction or termination) shall not exceed the Total Revolving Commitments immediately prior to the incurrence of such Credit Agreement Refinancing Indebtedness, plus, accrued interest, fees and premiums (if any) thereon, plus, other fees and expenses associated with the refinancing (including any upfront fees and original issue discount), (v) the terms (excluding pricing, fees, rate floors, premiums, optional prepayment or optional redemption provisions) of such Indebtedness are (as determined by Borrower in good faith), taken as a whole, no more restrictive in any material respect to Borrower and its Restricted Subsidiaries than the terms set forth in this Agreement, (vi) Borrower shall be the sole borrower thereunder and no Subsidiary of Borrower shall guaranty such Indebtedness unless such Subsidiary is also a Guarantor hereunder, and (vii) such Indebtedness shall not be secured by any Liens, except Liens on the Collateral.

Credit Documents” shall mean (a) this Agreement, (b) the Notes, (c) the L/C Documents, (d) the Security Documents, (e) any Pari Passu Intercreditor Agreement, (f) any Second Lien Intercreditor Agreement, (g) any Incremental Joinder Agreement, (h) any Extension Amendment, (i) any Refinancing Amendment, and (j) each other agreement entered into by any Credit Party, any Holding Company or RRR with Administrative Agent, Collateral Agent and/or any Lender, in connection herewith or therewith evidencing or governing the Obligations (other than the Engagement Letters), all as amended from time to time, but shall not include a Swap Contract or Cash Management Agreement.

Credit Parties” shall mean Borrower and the Guarantors.

Credit Swap Contracts” shall mean any Swap Contract between Borrower and/or any or all of its Restricted Subsidiaries and a Swap Provider (excluding any Swap Contract of the type described in the last sentence of the definition of Swap Contract).

Creditor” shall mean each of (a) each Agent, (b) each L/C Lender and (c) each Lender.

Custodian Agreement” means that certain Custodian Agreement dated as of the Closing Date among Wilmington Trust, National Association, as custodian, Collateral Agent and the Credit Parties and Holding Companies named therein, as the same may be amended in accordance with the terms thereof and hereof.

Debt Issuance” shall mean the incurrence by Borrower or any Restricted Subsidiary of any Indebtedness after the ClosingSixth Amendment Effective Date (other than as permitted by Section 10.01). The issuance or sale of any debt instrument convertible into or exchangeable or exercisable for any Equity Interests shall be deemed a Debt Issuance for purposes of Section 2.10(a).

 

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Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief Laws of the United States or other applicable jurisdiction from time to time in effect.

Declined Amounts” shall have the meaning provided in Section 2.10(b).

Default” shall mean any event or condition that constitutes an Event of Default or that would become, with notice or lapse of time or both, an Event of Default.

Default Quarter” shall have the meaning provided in Section 11.03.

Default Rate” shall mean a per annum rate equal to, (i) in the case of principal on any Loan, the rate which is 2% in excess of the rate borne by such Loan immediately prior to the respective payment default or other Event of Default, and (ii) in the case of any other Obligations, the rate which is 2% in excess of the rate otherwise applicable to ABR Loans which are Revolving Loans from time to time (determined based on a weighted average if multiple Tranches of Revolving Commitments are then outstanding).

“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

Defaulting Lender” shall mean, subject to Section 2.14(b), any Lender that (i) has failed to (A) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender has notified Administrative Agent and Borrower in writing that such failure is the result of such Lender’s good faith determination that one or more conditions precedent to funding has not been satisfied (which conditions precedent, together with the applicable default, if any, will be specifically identified in such writing), or (B) comply with its obligations under this Agreement to make a payment to the L/C Lender in respect of a L/C Liability, make a payment to Swingline Lender in respect of a Swingline Loan, and/or make a payment to a Lender of any amount required to be paid to it hereunder, in each case within two (2) Business Days of the date when due, (ii) has notified Borrower, Administrative Agent, a L/C Lender or the Swingline Lender in writing, or has stated publicly, that it will not comply with any such funding obligation hereunder, unless such writing or statement states that such position is based on such Lender’s good faith determination that one or more conditions precedent to funding cannot be satisfied (which conditions precedent, together with the applicable default, if any, will be specifically identified in such writing or public statement), or has defaulted generally (excluding bona fide disputes) on its funding obligations under other loan agreements or credit agreements or other similar agreements, (iii) a Lender Insolvency Event has occurred and is continuing with respect to such Lender or its Parent Company, (iv) any Lender that has, for three or more Business Days after written request of Administrative Agent or Borrower, failed to confirm in writing to Administrative Agent and Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender will cease to be a Defaulting Lender pursuant to this clause (iv) upon Administrative Agent’s and Borrower’s receipt of such written confirmation) or (v) becomes the subject of a Bail-in Action. Any determination of a Defaulting Lender under clauses (i) through (v) above will be conclusive and binding absent manifest error.

Designated Junior Indebtedness” means, as of any date of determination, Other Junior Indebtedness of the Credit Parties owned on such date by any Subsidiary that is a Wholly Owned Subsidiary.

Designated Junior Indebtedness Deduction” shall have the meaning provided in 10.08(a).

“Designated Junior Indebtedness Principal Proceeds shall have the meaning provided in 10.08(a).

Designated Lender” means a Station Permitted Assignee that is primarily engaged in, or advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit or securities in the ordinary course and with respect to which no Affiliate of any Credit Party, directly or indirectly, possesses the power to direct or cause the direction of the investment policies of such Station Permitted Assignee; provided that such Station Permitted Assignee has been identified by Borrower on Schedule 1.01(D) or has been notified to Administrative Agent by Borrower and approved by Administrative Agent.

 

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Designated Non-Cash Consideration” shall mean the fair market value of non-cash consideration received by Borrower or any of its Restricted Subsidiaries in connection with an Asset Sale that is so designated as Designated Non-Cash Consideration pursuant to an Officers’ Certificate setting forth the basis of such valuation, executed by a financial officer of Borrower, minus the amount of cash or Cash Equivalents received in connection with a subsequent sale of or collection on such Designated Non-Cash Consideration.

Designation” has the meaning set forth in Section 9.12(a).

Designation Amount” has the meaning set forth in Section 9.12(a)(ii).

Development Expenses” means, without duplication, the aggregate principal amount, not to exceed $500 million at any time, of outstanding Indebtedness incurred after the ClosingSixth Amendment Effective Date, the proceeds of which, at the time of determination, as certified by a Responsible Officer of Borrower, have been applied or are required or intended to be used to fund, (i) Expansion Capital Expenditures of Borrower or any Restricted Subsidiary, (ii) a Development Project or (iii) interest, fees or related charges with respect to such Indebtedness; provided that (A) Borrower or the Restricted Subsidiary or other Person that owns assets subject to the Expansion Capital Expenditure or Development Project, as applicable, is diligently pursuing the completion thereof and has not at any time ceased construction of such Expansion Capital Expenditure or Development Project, as applicable, for a period in excess of 90 consecutive days (other than as a result of a force majeure event or inability to obtain requisite Gaming Approvals or other governmental authorizations, so long as, in the case of any such Gaming Approvals or other governmental authorizations, Borrower or a Restricted Subsidiary or other applicable Person is diligently pursuing such Gaming Approvals or governmental authorizations) and (B) no such Indebtedness shall constitute Development Expenses with respect to an Expansion Capital Expenditure project or a Development Project from and after the end of the first full fiscal quarter after the earlier of (x) opening for business, and (y) completion of construction of the applicable Expansion Capital Expenditure project or Development Project.

Development Project” shall mean Investments, directly or indirectly, (a) in any Joint Ventures in which Borrower or any of its Restricted Subsidiaries, directly or indirectly, has control or with whom it has a management or similar contract and in which Borrower or any of its Restricted Subsidiaries owns (directly or indirectly) at least 25% of the Equity Interest of such Joint Venture, or (b) in, or expenditures with respect to, casinos, “racinos,” full service casino resorts or non-gaming resorts or Persons that own casinos, “racinos,” full-service casino resorts or non-gaming resorts (including casinos, “racinos,” full-service casino resorts or non-gaming resorts in development or under construction that are not presently opening or operating) with respect to which Borrower or any of its Restricted Subsidiaries will directly manage the development thereof or (directly or indirectly through Subsidiaries) Borrower or any of its Restricted Subsidiaries has entered into a management or similar contract (or an agreement to enter into such a management or similar contract) and such contract remains in full force and effect at the time of such Investment, though it may be subject to regulatory approvals, in each case, used to finance, or made for the purpose of allowing such Joint Venture, casino, “racino,” full-service casino resort or non-gaming resort, as the case may be, to finance, the purchase or other acquisition of any fixed or capital assets or the refurbishment of existing assets or properties that develops, adds to or significantly improves the property of such Joint Venture, casino, “racino,” full-service casino resort or non-gaming resort and assets ancillary or related thereto, or the construction and development of a casino, “racino,” full-service casino resort, non-gaming resort or assets ancillary or related thereto and including Pre-Opening Expenses with respect to such Joint Venture, casino, “racino,” full-service casino resort or non-gaming resort and other fees and payments to be made to such Joint Venture or the owners of such casino, “racino,” full-service casino resort or non-gaming resort.

Discharged” shall mean Indebtedness that has been defeased (pursuant to a contractual or legal defeasance) or discharged pursuant to the prepayment or deposit of amounts sufficient to satisfy such Indebtedness as it becomes due or irrevocably called for redemption (and regardless of whether such Indebtedness constitutes a liability on the balance sheet of the obligors thereof); provided, however, that the Indebtedness shall be deemed Discharged if the payment or deposit of all amounts required for defeasance or discharge or redemption thereof have been made even if certain conditions thereto have not been satisfied, so long as such conditions are reasonably expected to be satisfied within 95 days after such prepayment or deposit.

 

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Discount Range” shall have the meaning provided in Exhibit O hereto.

Disqualified Capital Stock” shall mean, with respect to any Person, any Equity Interest of such Person that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable or redeemable at the sole option of the holder thereof (other than solely (x) for Qualified Capital Stock or upon a sale of assets, casualty event or a change of control, in each case, subject to the prior payment in full of the Obligations, (y) as a result of a redemption required by Gaming Law or (z) as a result of a redemption that by the terms of such Equity Interest is contingent upon such redemption not being prohibited by this Agreement), pursuant to a sinking fund obligation or otherwise (other than solely for Qualified Capital Stock) or exchangeable or convertible into debt securities of the issuer thereof at the sole option of the holder thereof, in whole or in part, on or prior to the date that is 181 days after the Final Maturity Date then in effect at the time of issuance thereof.

Disqualified Lenders” shall mean any banks, financial institutions or other Persons separately identified by Borrower on Schedule 1.01(F).

Documentation Agents” means Goldman Sachs Bank USA, Citigroup Global Markets Inc., Macquarie Capital (USA) Inc., Citizens Bank, N.A., UBS Securities LLC and Credit Suisse Securities (USA) LLC, in their capacities as documentation agents hereunder.

Dollars” and “$” shall mean the lawful money of the United States.

Domestic Subsidiary” of any Person shall mean any Subsidiary of such Person incorporated, organized or formed in the United States or any state or territory thereof or the District of Columbia.

DQ List” shall have the meaning provided in Section 13.05(k)(iv).

“Early Opt-in Election” shall mean the occurrence of:

(1) (i) a determination by Administrative Agent in consultation with Borrower or (ii) a notification by Required Lenders in consultation with Borrower to Administrative Agent (with a copy to Borrower) that Required Lenders have determined that U.S. dollar-denominated syndicated credit facilities being executed at such time, or that include language similar to that contained in Section 1.08 are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace the LIBO Rate, and

(2) (i) the election by Administrative Agent in consultation with Borrower or (ii) the election by Required Lenders in consultation with Borrower to declare that an Early Opt-in Election has occurred due to the occurrence of an event in clause (1) above and the provision, as applicable, by Administrative Agent of written notice of such election to (and in consultation with) Borrower and Lenders or by Required Lenders of written notice of such election to Administrative Agent.

EEA Financial Institution” shall mean (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

EEA Member Country” shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

 

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EEA Resolution Authority” shall mean any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

Eligible Assignee” shall mean and include (i) a commercial bank, an insurance company, a finance company, a financial institution, any fund that invests in loans or any other “accredited investor” (as defined in Regulation D), (ii) solely for purposes of Borrower Loan Purchases, Borrower and its Restricted Subsidiaries and (iii) solely for purposes of Section 13.05(e), Station Permitted Assignees; provided, however, that (x) other than as set forth in clauses (ii) and (iii) of this definition, neither Borrower nor any of Borrower’s Affiliates or Subsidiaries shall be an Eligible Assignee, (y) Eligible Assignee shall not include any Person that is a Disqualified Lender as of the applicable Trade Date unless consented to in writing by Borrower and (z) Eligible Assignee shall not include any Person who is a Defaulting Lender.

Employee Benefit Plan” shall mean an employee benefit plan (as defined in Section 3(3) of ERISA) that is maintained or contributed to by any ERISA Entity.

Engagement Letters” shall mean, collectively, each of the engagement letters and fee letters entered into between Borrower and the Agents prior to the Closing Date relating to the Transactions.

Environment” shall mean ambient air, surface water and groundwater (including potable water, navigable water and wetlands), the land surface or subsurface strata, natural resources, the workplace or as otherwise defined in any Environmental Law.

Environmental Action” shall mean (a) any notice, claim, demand or other written or, to the knowledge of any Responsible Officer of Borrower, oral communication alleging liability of Borrower or any of its Restricted Subsidiaries for investigation, remediation, removal, cleanup, response, corrective action or other costs, damages to natural resources, personal injury, property damage, fines or penalties resulting from, related to or arising out of (i) the presence, Release or threatened Release in or into the Environment of Hazardous Material at any location or (ii) any violation of Environmental Law, and shall include, without limitation, any claim seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from, related to or arising out of the presence, Release or threatened Release of Hazardous Material or alleged injury or threat of injury to human health, safety or the Environment arising under Environmental Law and (b) any investigation, monitoring, removal or remedial activities undertaken by or on behalf of Borrower or any of its Restricted Subsidiaries, arising under Environmental Law whether or not such activities are carried out voluntarily.

Environmental Law” shall mean any and all applicable treaties, laws, statutes, ordinances, regulations, rules, decrees, judgments, orders, consent orders, consent decrees and other binding legal requirements, and the common law, relating to protection of public health or the Environment, the Release or threatened Release of Hazardous Material, natural resources or natural resource damages, or occupational safety or health.

Equity Interests” shall mean, with respect to any Person, any and all shares, interests, participations or other equivalents, including membership interests (however designated, whether voting or non-voting), of equity of such Person, including, if such Person is a partnership, partnership interests (whether general or limited) and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, such partnership, whether outstanding on the ClosingSixth Amendment Effective Date or issued after the ClosingSixth Amendment Effective Date; provided, however, that a debt instrument convertible into or exchangeable or exercisable for any Equity Interests or Swap Contracts entered into as a part of, or in connection with, an issuance of such debt instrument shall not be deemed an Equity Interest.

Equity Issuance” shall mean (a) any issuance or sale after the ClosingSixth Amendment Effective Date by Borrower of any Equity Interests (including any Equity Interests issued upon exercise of any Equity Rights) or any Equity Rights, or (b) the receipt by Borrower after the ClosingSixth Amendment Effective Date of any capital contribution (whether or not evidenced by any Equity Interest issued by the recipient of such contribution). The issuance or sale of any debt instrument convertible into or exchangeable or exercisable for any Equity Interests shall be deemed a Debt Issuance and not an Equity Issuance for purposes of the definition of Equity Issuance Proceeds; provided, however, that such issuance or sale shall be deemed an Equity Issuance upon the conversion or exchange of such debt instrument into Equity Interests.

 

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Equity Issuance Proceeds” shall mean, with respect to any Equity Issuance, the aggregate amount of all cash received in respect thereof by the Person consummating such Equity Issuance net of all investment banking fees, discounts and commissions, legal fees, consulting fees, accountants’ fees, underwriting discounts and commissions and other fees and expenses actually incurred in connection therewith; provided that, with respect to any Equity Interests issued upon exercise of any Equity Rights, the Equity Issuance Proceeds with respect thereto shall be determined without duplication of any Equity Issuance Proceeds received in respect of such Equity Rights.

Equity Rights” shall mean, with respect to any Person, any then-outstanding subscriptions, options, warrants, commitments, preemptive rights or agreements of any kind (including any stockholders’ or voting trust agreements) for the issuance, sale, registration or voting of any additional Equity Interests of any class, or partnership or other ownership interests of any type in, such Person; provided, however, that a debt instrument convertible into or exchangeable or exercisable for any Equity Interests shall not be deemed an Equity Right.

ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time.

ERISA Entity” shall mean any member of an ERISA Group.

ERISA Event” shall mean (a) any “reportable event,” as defined in Section 4043 of ERISA or the regulations issued thereunder, with respect to a Pension Plan (other than an event for which the 30-day notice requirement is waived); (b) with respect to any Pension Plan, the failure to satisfy the minimum funding standard under Section 412 of the Code and Section 302 of ERISA, whether or not waived, the failure by any ERISA Entity to make by its due date a required installment under Section 430(j) of the Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Pension Plan; (d) the incurrence by any ERISA Entity of any liability under Title IV of ERISA with respect to the termination of any Pension Plan; (e) the receipt by any ERISA Entity from the PBGC or a plan administrator of any notice indicating an intent to terminate any Pension Plan or to appoint a trustee to administer any Pension Plan; (f) the occurrence of any event or condition which would reasonably constitute grounds under ERISA for the termination of or the appointment of a trustee to administer, any Pension Plan; (g) the incurrence by any ERISA Entity of any liability with respect to the withdrawal or partial withdrawal from any Pension Plan or Multiemployer Plan; (h) the receipt by an ERISA Entity of any notice, or the receipt by any Multiemployer Plan from any ERISA Entity of any notice, concerning the imposition of Withdrawal Liability on any ERISA Entity or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA; (i) the making of any amendment to any Pension Plan which would be reasonably likely to result in the imposition of a lien or the posting of a bond or other security; (j) the withdrawal of any ERISA Entity from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such ERISA Entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; or (k) the occurrence of a nonexempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which would reasonably be expected to result in liability to Borrower or any of its Restricted Subsidiaries.

ERISA Group” shall mean Borrower or any of its Restricted Subsidiaries and all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with Borrower and its Restricted Subsidiaries, are treated as a single employer under Section 414(b) or (c) of the Code.

EU Bail-In Legislation Schedule” shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.

Events of Default” has the meaning set forth in Section 11.01.

 

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“Excess Cash Flow” shall mean, for any fiscal year of Borrower (or in the case of the fiscal year ending December 31, 2016, the period from and including the first day of the first full quarter after the Closing Date through December 31, 2106), an amount, if positive, equal to (without duplication):

(a) Consolidated Net Income; plus

(b) an amount equal to the amount of all non-cash charges or losses (including write-offs or write-downs, depreciation expense and amortization expense including amortization of goodwill and other intangibles) to the extent deducted in arriving at such Consolidated Net Income (excluding any such non-cash expense to the extent that it represents an accrual or reserve for potential cash charge in any future period or amortization of a prepaid cash charge that was paid in a prior period and that did not reduce Excess Cash Flow at the time paid); plus

(c) the decrease, if any, in Working Capital from the beginning of such period to the end of such period (for the avoidance of doubt, an increase in negative Working Capital is a decrease in Working Capital); minus

(d) all payments with respect to restricted stock units upon the Person to whom such restricted stock units were originally issued ceasing to be a director, officer, employee, consultant or advisor and net income or loss allocated to unvested participating restricted stock of Borrower; plus

(e) any amounts received from the early extinguishment of Swap Contracts that are not included in Consolidated Net Income; minus

(f) the increase, if any, of Working Capital from the beginning of such period to the end of such period; minus

(g) any amounts paid in connection with the early extinguishment of Swap Contracts that are not included in Consolidated Net Income; minus

(h) the amount of Capital Expenditures made in cash during such period, except to the extent financed with the proceeds of an Equity Issuance, Indebtedness, Asset Sales or Casualty Events (to the extent such proceeds did not increase Consolidated Net Income) of Borrower or its Restricted Subsidiaries; minus

(i) the amount of principal payments of the Loans, Other Applicable Indebtedness and Other First Lien Indebtedness of Borrower and its Restricted Subsidiaries (excluding (i) repayments of Revolving Loans or Swingline Loans or other revolving indebtedness, except to the extent the Revolving Commitments or commitments in respect of such other revolving debt, as applicable, are permanently reduced in connection with such repayments, (ii) prepayments of Loans or other Indebtedness, in each case, that reduce the amount of Excess Cash Flow prepayment required to be made with respect to such fiscal year under Section 2.10(a)(iv)(y) (including as a result of Section 2.10(a)(vii)) and (iii) mandatory prepayments of Loans pursuant to Section 2.10(a)(i), 2.10(a)(ii), 2.10(a)(iii) or 2.10(a)(v), except to the extent the Net Available Proceeds from such Casualty Event or Asset Sale, as applicable, used to make such mandatory prepayments were included in the calculation of Consolidated Net Income), in each case, except to the extent financed with the proceeds of an Equity Issuance, Indebtedness, Asset Sales or Casualty Events (to the extent such proceeds did not increase Consolidated Net Income) of Borrower or its Restricted Subsidiaries; minus

(j) without duplication of amounts deducted pursuant to clause (l) below in prior periods, the amount of Investments made during such period pursuant to Section 10.04 (other than Sections 10.04(a), (b), (c), (d), (e), (f) (except to the extent such amount increased Consolidated Net Income), (g) (except to the extent that the receipt of consideration described therein increased Consolidated Net Income), (h) (to the extent taken into account in arriving at Consolidated Net Income), (j), (k)(ii), (k)(iv), (l), (o), (q), and (r) and (w)), except to the extent financed with the proceeds of an Equity Issuance, Indebtedness (other than Revolving Loans), Asset Sales or Casualty Events (to the extent such proceeds did not increase Consolidated Net Income) of Borrower or its Restricted Subsidiaries; minus

(k) the amount of all non-cash gains to the extent included in arriving at such Consolidated Net Income (excluding any such non-cash gain to the extent it represents the reversal of an accrual or reserve for a potential cash loss in any prior period); minus

 

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(l) the amount of all Restricted Payments made during such period pursuant to Section 10.06(i)(i); minus

(m) the amount of all Junior Prepayments made during such period pursuant to Section 10.09(a)(i)(i); minus

(n) any expenses or reserves for liabilities to the extent that Borrower or any Restricted Subsidiary is entitled to indemnification or reimbursement therefor under binding agreements or insurance claims therefor to the extent Borrower has not received such indemnity or reimbursement payment, in each case, to the extent not taken into account in arriving at Consolidated Net Income; plus

(o) the excess, if any, of (A) the aggregate amount of Subsidiary Tax Sharing Payments received by Borrower during such period over (B) the sum of (1) the amount of cash income taxes (if any) paid by Borrower and its Restricted Subsidiaries to Governmental Authorities in such period plus (2) the aggregate amount of Restricted Payments by Borrower to Holdco pursuant to Section 10.06(p) during such period; plus

(p) the amount of cash payments received by Borrower from Unrestricted Subsidiaries pursuant to the Subsidiary Cost Allocation Agreements during such period with respect to expenses deducted in the determination of Consolidated Net Income; minus

(q) the excess, if any, of (A) the sum of (1) the amount of cash taxes (if any) actually paid by Borrower and its Restricted Subsidiaries to Governmental Authorities during such period plus (2) the aggregate amount of Restricted Payments by Borrower to Holdco pursuant to Section 10.06(p) during such period over (B) the aggregate amount of Subsidiary Tax Sharing Payments received by Borrower during such period; minus

(r) the amount of distributions made by Borrower to the Holding Companies pursuant to Sections 10.06(m) and (n); plus

(s) the amount of income tax expense deducted in determining Consolidated Net Income for such fiscal year (if any); minus

(t) to the extent included in Consolidated Net Income, Specified 10.04(k) Investment Returns received during such fiscal year.

Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.

Excluded Foreign Subsidiary” shall mean (a) any Subsidiary that is a “controlled foreign corporation” within the meaning of Section 957 of the Code, (b) any Subsidiary substantially all the assets of which consist of Equity Interests (or Equity Interests and Indebtedness) in one or more Subsidiaries described in clause (a) of this definition or (c) any Subsidiary the Equity Interests of which are directly or indirectly owned by any Subsidiary described in clause (a) of this definition.

Excluded Information” shall have the meaning provided in Section 12.07(b).

Excluded Subsidiary” shall mean (a) any Unrestricted Subsidiary, (b) any Immaterial Subsidiary, (c) any Foreign Subsidiary, (d) any Subsidiary that is prohibited by applicable law, rule or regulation (including, without limitation, any Gaming Laws) or by any agreement, instrument or other undertaking to which such Subsidiary is a party or by which it or any of its property or assets is bound from guaranteeing the Obligations; provided that any such agreement, instrument or other undertaking (i) is in existence on the ClosingSixth Amendment Effective Date and listed on Schedule 1.01(A) (or, with respect to a Subsidiary acquired after the ClosingSixth Amendment Effective Date, as of the date such acquisition) and (ii) in the case of a Subsidiary acquired after the ClosingSixth Amendment Effective Date, was not entered into in connection with or anticipation of such acquisition, (e) any Subsidiary with respect to which guaranteeing the Obligations would require consent, approval, license or authorization from any Governmental Authority (including, without limitation, any Gaming Authority), unless such consent, approval, license

 

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or authorization has been received and is in effect and (f) any other Subsidiary with respect to which, in the reasonable judgment of Administrative Agent (which shall be confirmed in writing by notice to Borrower), the cost or other consequences (including any adverse tax consequences) of providing a guarantee shall be excessive in view of the benefits to be obtained by the Lenders therefrom.

Excluded Swap Obligation” means, with respect to any Guarantor, (x) as it relates to all or a portion of the Guarantee of such Guarantor, any Swap Obligation if, and to the extent that, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Guarantor becomes effective with respect to such Swap Obligation or (y) as it relates to all or a portion of the grant by such Guarantor of a security interest, any Swap Obligation if, and to the extent that, such Swap Obligation (or such security interest in respect thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the security interest of such Guarantor becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.

Excluded Taxes” shall mean, with respect to any Agent, any Lender, or any other recipient of any payment to be made by or on account of any obligation of any Credit Party, Holding Company or RRR hereunder and under the other Credit Documents, (a) income or franchise Taxes imposed on (or measured by) net income or net profits (however denominated), in each case, imposed by the jurisdiction under the laws of which such recipient is organized, in which its principal office is located or in which it is otherwise doing business (other than a business deemed to arise solely by virtue of the transactions contemplated by this Agreement) or, in the case of any Lender, in which its Applicable Lending Office is located, (b) any branch profits Taxes imposed by the United States under Section 884(a) of the Code or any similar Tax imposed by any other jurisdiction described in clause (a) above, (c) in the case of any Lender, other than an assignee pursuant to a request by Borrower under Section 2.11(a), any U.S. federal withholding tax that is imposed on amounts payable to such Person under the laws in effect at the time such Person becomes a party to this Agreement (or designates a new Applicable Lending Office), except to the extent that such Person (or its assignor, if any) was entitled, at the time of designation of a new Applicable Lending Office (or assignment), to receive additional amounts from Borrower with respect to such withholding Tax pursuant to Section 5.06(a), (d) Taxes attributable to such Person’s failure to comply with Section 5.06(b) or 5.06(c) and (e) any United States federal withholding tax imposed under FATCA.

Existing Credit Agreement” shall mean the Credit Agreement, dated as of March 1, 2013 (as amended and otherwise modified prior to the date hereofClosing Date), among Borrower, Deutsche Bank AG Cayman Islands Branch, as administrative agent, the lenders party thereto and the other agents party thereto.

Existing Letter of Credit” has the meaning set forth in Section 2.03(n).

Existing Revolving Loans” shall have the meaning provided in Section 2.13(b).

Existing Revolving Tranche” shall have the meaning provided in Section 2.13(b).

Existing Term Loan Tranche” shall have the meaning provided in Section 2.13(a).

Existing Tranche” shall mean any Existing Term Loan Tranche or Existing Revolving Tranche.

Expansion Capital Expenditures” means any capital expenditure by Borrower or any of its Restricted Subsidiaries in respect of the purchase or other acquisition of any fixed or capital assets or the refurbishment of existing assets or properties that, in Borrower’s reasonable determination, adds to or significantly improves (or is reasonably expected to add to or significantly improve) the property of Borrower and its Restricted Subsidiaries, excluding any

 

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such capital expenditures financed with Net Available Proceeds of an Asset Sale or Casualty Event and excluding capital expenditures made in the ordinary course made to maintain, repair, restore or refurbish the property of Borrower and its Restricted Subsidiaries in its then existing state or to support the continuation of such Person’s day to day operations as then conducted.

Extended Revolving Commitments” shall have the meaning provided in Section 2.13(b).

Extended Revolving Loans” shall have the meaning provided in Section 2.13(b).

Extended Term Loans” shall have the meaning provided in Section 2.13(a).

Extending Lender” shall have the meaning provided in Section 2.13(c).

Extension Amendment” shall have the meaning provided in Section 2.13(d).

Extension Date” shall mean any date on which any Existing Term Loan Tranche or Existing Revolving Tranche is modified to extend the related scheduled maturity date(s) in accordance with Section 2.13 (with respect to the Lenders under such Existing Term Loan Tranche or Existing Revolving Tranche which agree to such modification).

Extension Election” shall have the meaning provided in Section 2.13(c).

Extension Request” shall mean any Term Loan Extension Request or Revolving Extension Request.

Extension Tranche” shall mean all Extended Term Loans of the same tranche or Extended Revolving Commitments of the same tranche that are established pursuant to the same Extension Amendment (or any subsequent Extension Amendment to the extent such Extension Amendment expressly provides that the Extended Term Loans or Extended Revolving Commitments, as applicable, provided for therein are intended to be a part of any previously established Extension Tranche).

fair market value” shall mean, with respect to any Property, a price (after taking into account any liabilities relating to such Property), as determined in good faith by Borrower, that could be negotiated in an arm’s-length free market transaction, for cash, between a willing seller and a willing and able buyer, neither of which is under any compulsion to complete the transaction.

Fair Share” has the meaning set forth in Section 6.10.

FATCA” means Sections 1471 through 1474 of the Code as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any regulations thereunder or official interpretations thereof, any intergovernmental agreements entered into pursuant thereto, any non-U.S. legislation implementing any such intergovernmental agreement, and any agreements entered into pursuant to Section 1471(b) of the Code.

Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as the NYFRB shall set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as the federal funds effective rate; provided, further, that if the aforesaid rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

“Federal Reserve Bank of New York’s Website” means the website of the NYFRB at http://www.newyorkfed.org, or any successor source.

Fertitta Entertainment” means Fertitta Entertainment LLC, a Delaware limited liability company, and its successors.

 

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Fertitta Family Entity” means any trust or entity one hundred percent (100%) owned and Controlled by or established for the sole benefit of, or the estate of, any of Frank J. Fertitta III or Lorenzo J. Fertitta or their spouses or lineal descendants (including, without limitation, adopted children and their lineal descendants).

Fertitta Holder” means (a) Frank J. Fertitta III or Lorenzo J. Fertitta or any of their spouses or lineal descendants (including without limitation, adopted children and their lineal descendants) or (b) a Fertitta Family Entity.

Fertitta Interactive Tax Sharing Agreement” means the tax sharing agreement dated November 16, 2012 by and between Opco and Fertitta Interactive LLC.

“Fifth Amendment” shall mean that certain Incremental Joinder Agreement No. 5 and Fifth Amendment to Credit Agreement, dated as of February 8, 2019, by and among the Borrower, the Guarantors party thereto, Holdco, RRR, the Fifth Amendment Incremental Revolving Facility Lenders party thereto, the L/C Lenders party thereto, the Fifth Amendment Extending Revolving Lenders party thereto, the Swingline Lender party thereto, Fifth Amendment Extending Term A-3 Facility Lenders party thereto and the Administrative Agent.

“Fifth Amendment Effective Date” has the meaning given to the term “Effective Date” in the Fifth Amendment.

“Fifth Amendment Extending Revolving Lender” has the meaning given to the term “Extending Revolving Lender” in the Fifth Amendment.

“Fifth Amendment Extending Term A-3 Facility Lender” has the meaning given to the term “Extending Term A-3 Facility Lender” in the Fifth Amendment.

“Fifth Amendment Incremental Revolving Facility Commitments” has the meaning given to the term “Incremental Revolving Facility Commitments” in the Fifth Amendment.

“Fifth Amendment Incremental Revolving Facility Lender” has the meaning given to the term “Incremental Revolving Facility Lender” in the Fifth Amendment.

“Fifth Amendment Incremental Revolving Facility Loans” has the meaning given to the term “Incremental Revolving Facility Loans” in the Fifth Amendment.

“Fifth Amendment Revolving Commitments” shall mean (a) the “Extending Revolving Commitments” under (and as defined in) the Fifth Amendment that are modified into a new Tranche of Revolving Commitments pursuant to the Fifth Amendment and (b) from and after the date of such modification, any Revolving Commitment modified by the Borrower and the applicable Revolving Lender to be a Fifth Amendment Revolving Commitment (including, for the avoidance of doubt, pursuant to Section 2.01(a)(iii). For the avoidance of doubt, the Fifth Amendment Revolving Commitments shall include the Fifth Amendment Incremental Revolving Facility Commitments.

“Fifth Amendment Revolving Facility” shall mean the credit facility comprising the Fifth Amendment Revolving Commitments.

Final Maturity Date” shall mean the latest of the latest R/C Maturity Date, the Term AA-5 Facility Maturity Date, the Term A-4B-1 Facility Maturity Date, the Term B Facility Maturity Date, the latest New Term Loan Maturity Date, the latest final maturity date applicable to any Extended Term Loans, the latest final maturity date applicable to any Extended Revolving Commitments, the latest final maturity date applicable to any Other Term Loans and the latest final maturity date applicable to any Other Revolving Loans.

Financial Maintenance Covenants” shall mean the covenants set forth in Section 10.08.

 

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FIRREA” shall mean the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended.

“First Amendment Effective Date” shall mean the “Effective Date” as defined in that certain First Amendment to Credit Agreement, dated as of January 30, 2017, among the Borrower, the other Credit Parties, Holdco, RRR, the Administrative Agent and the Lenders party thereto.

Flood Insurance Laws” means, collectively, (a) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (b) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statue thereto, (c) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto and (d) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto.

Foreign Lender Certificate” has the meaning set forth in Section 5.06(b).

Foreign Plan” shall mean any employee benefit plan, program, policy, arrangement or agreement (excluding employment agreements) maintained or contributed to by, or entered into with, Borrower or any Restricted Subsidiary with respect to employees employed outside the United States.

Foreign Subsidiary” shall mean (x) each Subsidiary that is organized under the laws of a jurisdiction other than the United States or any state thereof, or the District of Columbia and (y) each Excluded Foreign Subsidiary.

“Fourth Amendment” shall mean that certain Incremental Joinder Agreement No. 4 and Fourth Amendment to Credit Agreement, dated as of September 21, 2017, by and among the Borrower, the Guarantors party thereto, Holdco, RRR, the Incremental Revolving Facility Lenders (as defined therein) party thereto, the Incremental Term A-3 Facility Lenders (as defined therein) party thereto, the L/C Lenders party thereto, the Revolving Lenders party thereto, Term A-3 Facility Lenders party thereto, the Term A Facility Lenders party thereto and the Administrative Agent.

“Fourth Amendment Effective Date” has the meaning given to the term “Effective Date” in the Fourth Amendment.

“Fourth Amendment Incremental Revolving Facility Commitments” has the meaning given to the term “Incremental Revolving Facility Commitments” in the Fourth Amendment.

“Fourth Amendment Incremental Term A-3 Facility Commitment” has the meaning given to the term “Incremental Term A-3 Facility Loan Commitment” in the Fourth Amendment.

“Fourth Amendment Incremental Term A-3 Facility Lender” has the meaning given to the term “Incremental Term A-3 Facility Lender” in the Fourth Amendment.

“Fourth Amendment Incremental Term A-3 Facility Loans” has the meaning given to the term “Incremental Term A-3 Facility Loans” in the Fourth Amendment.

Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course.

Funding Credit Party” has the meaning set forth in Section 6.10.

Funding Date” shall mean the date of the making of any extension of credit (whether the making of a Loan or the issuance of a Letter of Credit) hereunder (including the Closing Date).

GAAP” shall mean generally accepted accounting principles set forth as of the relevant date in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the U.S. accounting profession), including, without limitation, any Accounting Standards Codifications, which are applicable to the circumstances as of the date of determination.

 

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Gaming Approval” shall mean any and all approvals, authorizations, permits, consents, rulings, orders or directives of any Governmental Authority (including, without limitation, any Gaming Authority) (a) necessary to enable Borrower or any of its Restricted Subsidiaries to engage in, operate or manage the casino, gambling, horse racing or gaming business or otherwise continue to conduct, operate or manage such business substantially as is presently conducted, operated or managed or contemplated to be conducted, operated or managed following the Closing Date (after giving effect to the Transactions), (b) required by any Gaming Law or (c) necessary as is contemplated on the Closing Date (after giving effect to the Transactions), to accomplish the financing and other transactions contemplated hereby after giving effect to the Transactions.

Gaming Authority” shall mean any Governmental Authority with regulatory, licensing or permitting authority or jurisdiction over any gaming business or enterprise or horse racing business or enterprise or any Gaming Facility (including, without limitation, the following as of the Closing Date: the Nevada Gaming Commission and the Nevada State Gaming Control Board), or with regulatory, licensing or permitting authority or jurisdiction over any gaming or racing operation (or proposed gaming or racing operation) owned, managed, leased or operated by Borrower or any of its Restricted Subsidiaries.

Gaming Facility” shall mean any gaming establishment and other property or assets ancillary thereto or used in connection therewith, including, without limitation, any casinos, hotels, resorts, race tracks, off-track wagering sites, theaters, parking facilities, recreational vehicle parks, timeshare operations, retail shops, restaurants, other buildings, land, golf courses and other recreation and entertainment facilities, marinas, vessels, barges, ships and related equipment.

Gaming Laws” shall mean all applicable provisions of all: (a) constitutions, treaties, statutes or laws governing Gaming Facilities (including, without limitation, card club casinos and pari mutuel race tracks) and rules, regulations, codes and ordinances of, and all administrative or judicial orders or decrees or other laws pursuant to which, any Gaming Authority possesses regulatory, licensing or permit authority over gambling, gaming, racing or Gaming Facility activities conducted, operated or managed by Borrower or any of its Restricted Subsidiaries within its jurisdiction; (b) Gaming Approvals; and (c) orders, decisions, determinations, judgments, awards and decrees of any Gaming Authority.

Gaming License” shall mean any Gaming Approval or other casino, gambling, horse racing or gaming license issued by any Gaming Authority covering any Gaming Facility.

Governmental Authority” shall mean any government or political subdivision of the United States or any other country, whether federal, state, provincial or local, or any agency, authority, board, bureau, central bank, commission, office, division, department or instrumentality thereof or therein, including, without limitation, any court, tribunal, grand jury or arbitrator, in each case whether foreign or domestic, or any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to such government or political subdivision including, without limitation, any Gaming Authority.

Governmental Real Property Disclosure Requirements” shall mean any Requirement of Law requiring notification of the buyer, mortgagee or assignee of real property, or notification, registration or filing to or with any Governmental Authority, in connection with the sale, lease, mortgage, assignment or other transfer (including, without limitation, any transfer of control) of any real property, establishment or business, of the actual or threatened presence or release in or into the Environment, or the use, disposal or handling of Hazardous Material on, at, under or near the real property, facility or business to be sold, mortgaged, assigned or transferred.

Guarantee” shall mean the guarantee of each Guarantor pursuant to Article VI.

Guaranteed Obligations” has the meaning set forth in Section 6.01.

 

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Guarantors” shall mean each of the Persons listed on Schedule 1.01(B) attached hereto and each Restricted Subsidiary that may hereafter execute a Joinder Agreement pursuant to Section 9.11, together with their successors and permitted assigns, and “Guarantor” shall mean any one of them; provided, however, that notwithstanding the foregoing, Guarantors shall not include any Person that has been released as a Guarantor in accordance with the terms of the Credit Documents.

GVR” means Station GVR Acquisition, LLC, a Nevada limited liability company.

GVR/ANC License Agreement” means that certain License Agreement, dated as of March 2, 2011, by and between ANC and GVR, together with that certain Memorandum of License Agreement, dated as of June 16, 2011, by and between ANC and GVR.

Hazardous Material” shall mean any material, substance, waste, constituent, compound, pollutant or contaminant including, without limitation, petroleum (including, without limitation, crude oil or any fraction thereof or any petroleum product or waste) subject to regulation or which could reasonably be expected to give rise to liability under Environmental Law.

Holdco” shall mean Station Holdco LLC, a Delaware limited liability company.

Holdco LLC Agreement” shall mean that certain Third Amended and Restated Limited Liability Company Agreement of Holdco, dated as of April 28, 2016.

Holding Companies” shall mean (i) prior to the VoteCo SPE Reorganization Date, Holdco and (ii) from and after the VoteCo SPE Reorganization Date, Holdco and the VoteCo SPE.

“Holding Company Tax Sharing Agreement” means that certain Amended and Restated Tax Distribution Agreement, dated as of March 1, 2013, between the Borrower and Holdco.

Immaterial Subsidiary” shall mean (a) as of the ClosingSixth Amendment Effective Date, those Subsidiaries of Borrower which are designated as such on Schedule 8.12(b), and (b) each additional Subsidiary of Borrower which is hereafter designated as such from time to time after the Sixth Amendment Effective Date by written notice to Administrative Agent in a manner consistent with the provisions of Section 9.13; provided that no Person shall be so designated (or in the case of clauses (a) and (b), remain) (i) if, as of the date of its designation, its Consolidated EBITDA for the then most recent period of twelve months is in excess of $5,000,000, (ii) if it owns any interest in any Core Property or any Equity Interests in Borrower or any Guarantor, (iii) if it owns any material assets which are used in connection with any gaming, lodging or hospitality business (other than a Tavern Business and other than gaming, lodging or hospitality businesses with 250 gaming machines or less), (iv) if it owns any Real Property required to be a Mortgaged Real Property hereunder, (v) if it is IP Holdco, or (vi) when any Default or Event of Default has occurred and remains continuing.

Impacted Loans” has the meaning set forth in Section 5.02.

Inaccuracy Determination” has the meaning set forth in the definition of “Applicable Margin.”

Inaccurate Applicable Margin Period” has the meaning set forth in the definition of “Applicable Margin.”

Incremental Commitments” shall mean the Incremental Revolving Commitments and the Incremental Term Loan Commitments.

Incremental Effective Date” has the meaning set forth in Section 2.12(b).

Incremental Equivalent Debt” has the meaning set forth in Section 10.01(t).

“Incremental Existing Tranche Revolving Commitments” shall have the meaning set forth in Section 2.12(a).

 

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Incremental Joinder Agreement” has the meaning set forth in Section 2.12(b).

Incremental Loan Amount” shall mean (a) $450.0 million, plus, (b) any additional or other amount, so long as, solely in this case of this clause (b), the Consolidated First Lien Leverage Ratio does not exceed 4.50 to 1.00, determined on a Pro Forma Basis as of the most recent Calculation Date; provided that, for such purpose, (w) at the option of Borrower, in the case of Incremental Revolving Commitments that constitute Acquisition Incremental Revolving Commitments or any Incremental Term Loans (and related Incremental Term Loan Commitments) or Incremental Equivalent Debt the proceeds of which are or are to be used primarily to fund a Permitted Acquisition or other Acquisition not prohibited hereunder (including repayment of Indebtedness of the Person acquired, or that is secured by the assets acquired, in such Permitted Acquisition or other Acquisition), such compliance may instead be determined on a Pro Forma Basis as of the Calculation Date immediately preceding the date on which a binding contract with respect to such Permitted Acquisition or other Acquisition is entered into between Borrower or a Restricted Subsidiary and the seller with respect thereto, giving effect to such Acquisition Incremental Revolving Commitments (in accordance with clause (z) below), Incremental Term Loans (and related Incremental Term Loan Commitments) and Incremental Equivalent Debt and such Permitted Acquisition or other Acquisition as if incurred and consummated on the first day of the applicable period, (x) Consolidated First Lien Leverage Ratio for such purpose shall treat any Incremental Equivalent Debt as first lien indebtedness, even if such Incremental Equivalent Debt was issued or incurred on an unsecured basis or on a junior basis to the Obligations, (y) in calculating the Consolidated First Lien Leverage Ratio, Consolidated Indebtedness shall not take into account any Loans under Incremental Commitments made under clause (a) concurrently with Loans made in reliance on clause (b) and (z) in the case of any Incremental Revolving Commitments and Incremental Equivalent Debt consisting of revolving credit facilities, pro forma effect shall be given to any Incremental Revolving Loans and any loans under any Incremental Equivalent Debt consisting of a revolving credit facility, in each case, to the extent actually made on such date, but any proposed Incremental Revolving Commitments or Incremental Equivalent Debt consisting of a revolving credit facility shall not otherwise be treated as drawn. In connection with any incurrence of Incremental Commitments or Incremental Equivalent Debt, Borrower may elect which of clauses (a) and/or (b) of the definition of “Incremental Loan Amount” it has opted to rely upon to incur such Indebtedness and Borrower shall notify Administrative Agent of such election.

Incremental Revolving Commitments” shall have the meaning provided in Section 2.12(a)mean Incremental Existing Tranche Revolving Commitments and New Revolving Commitments.

Incremental Revolving Loans” means any Revolving Loans made pursuant to Incremental Revolving Commitments.

Incremental Term AA-5 Loan Commitments” shall have the meaning provided in Section 2.12(a).

Incremental Term AA-5 Loans” shall have the meaning provided in Section 2.12(a).

Incremental Term BB-1 Loan Commitments” shall have the meaning provided in Section 2.12(a).

Incremental Term BB-1 Loans” shall have the meaning provided in Section 2.12(a).

Incremental Term Loan Commitments” shall mean the Incremental Term AA-5 Loan Commitments, the Incremental Term BB-1 Loan Commitments and the New Term Loan Commitments.

Incremental Term Loans” shall mean the Incremental Term AA-5 Loans, the Incremental Term BB-1 Loans and any New Term Loans.

incur” shall mean, with respect to any Indebtedness or other obligation of any Person, to create, issue, incur (including by conversion, exchange or otherwise), permit to exist, assume, guarantee or otherwise become liable in respect of such Indebtedness or other obligation (and “incurrence,” “incurred” and “incurring” shall have meanings correlative to the foregoing).

 

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Indebtedness” of any Person shall mean, without duplication, (a) all obligations of such Person for borrowed money; (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments; (c) all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person; (d) all obligations of such Person issued or assumed as the deferred purchase price of property or services (excluding (i) trade accounts payable and accrued obligations incurred in the ordinary course of business, (ii) the financing of insurance premiums, (iii) any such obligations payable solely through the issuance of Equity Interests and (iv) any earn-out obligation until such obligation appears in the liabilities section of the balance sheet of such Person in accordance with GAAP (excluding disclosure on the notes and footnotes thereto); provided that any earn-out obligation that appears in the liabilities section of the balance sheet of such Person shall be excluded, to the extent (x) such Person is indemnified for the payment thereof or (y) amounts to be applied to the payment therefor are in escrow); (e) all Indebtedness (excluding prepaid interest thereon) of others secured by any Lien on property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed; provided, however, that if such obligations have not been assumed, the amount of such Indebtedness included for the purposes of this definition will be the amount equal to the lesser of the fair market value of such property and the amount of the Indebtedness secured; (f) with respect to any Capital Lease Obligations of such Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP; (g) all net obligations of such Person in respect of Swap Contracts; (h) all obligations of such Person as an account party in respect of letters of credit and bankers’ acceptances, except obligations in respect of letters of credit issued in support of obligations not otherwise constituting Indebtedness shall not constitute Indebtedness except to the extent such letter of credit is drawn and not reimbursed within three (3) Business Days of such drawing; (i) all obligations of such Person in respect of Disqualified Capital Stock; (j) obligations under Support Agreements; and (k) all Contingent Obligations of such Person in respect of Indebtedness of others of the kinds referred to in clauses (a) through (j) above. The Indebtedness of any Person shall (A) include the Indebtedness of any partnership in which such Person is a general partner unless recourse is limited, in which case the amount of such Indebtedness shall be the amount such Person is liable therefor (except to the extent the terms of such Indebtedness expressly provide that such Person is not liable therefor) and (B) exclude the obligations of Borrower under the LandCo Support Agreement. The amount of Indebtedness of the type described in clause (d) shall be calculated based on the net present value thereof. The amount of Indebtedness of the type referred to in clause (g) above of any Person shall be zero unless and until such Indebtedness shall be terminated, in which case the amount of such Indebtedness shall be the then termination payment due thereunder by such Person. For the avoidance of doubt, it is understood and agreed that (x) casino “chips” and gaming winnings of customers, (y) any obligations of such Person in respect of Cash Management Agreements and (z) any obligations of such Person in respect of employee deferred compensation and benefit plans (including Pension Plans acquired in the Palms Acquisition) shall not constitute Indebtedness. Operating leases shall not constitute Indebtedness hereunder regardless of whether required to be recharacterized as Capitalized Leases pursuant to GAAP.

Indemnitee” has the meaning set forth in Section 13.03(b).

Initial Financial Statement Delivery Date” shall mean the date on which Section 9.04 Financials are delivered to Administrative Agent under Section 9.04(a) or (b), as applicable, for the first full fiscal quarter ending after the Closing Date.

Initial Perfection Certificate” has the meaning set forth in the definition of “Perfection Certificate.”

Initial Restricted Payment Base Amount” shall mean, as of any date of determination, $250.0275.0 million minus (x) the amount of Investments made under Section 10.04(k)(iii) from and after the Sixth Amendment Effective Date and on or prior to such date, (y) the amount of Restricted Payments made under Section 10.06(i)(i) from and after the Sixth Amendment Effective Date and on or prior to such date and (z) the amount of Junior Prepayments made under Section 10.09(a)(i)(i) from and after the Sixth Amendment Effective Date and on or prior to such date.

Intellectual Property” has the meaning set forth in Section 8.19.

Interest Coverage Ratio” shall mean, with respect to any Test Period, the ratio of (x) Consolidated EBITDA for such Test Period to (y) Consolidated Cash Interest Expense for such Test Period.

Interest Period” shall mean, as to each LIBOR Loan, the period commencing on the date such LIBOR Loan is disbursed or converted to or continued as a LIBOR Loan and ending on the date one, two, three or six months thereafter, as selected by Borrower in its Notice of Borrowing or Notice of Continuation/Conversion, as applicable, or such other period that is twelve months or less requested by Borrower and consented to by all the applicable Lenders (and if less than one month, the consent of the Administrative Agent shall also be required); provided that:

(i) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless, in the case of a LIBOR Loan, such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

 

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(ii) any Interest Period pertaining to a LIBOR Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

(iii) no Interest Period for a Class shall extend beyond the maturity date for such Class.

Interest Rate Protection Agreement” shall mean, for any Person, an interest rate swap, cap or collar agreement or similar arrangement between such Person and one or more financial institutions providing for the transfer or mitigation of interest risks either generally or under specific contingencies.

“Interpolated Rate” shall mean, at any time, for any Interest Period, in relation to the LIBO Base Rate, the rate per annum (rounded to the same number of decimal places as the LIBO Screen Rate) determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between (a) the LIBO Screen Rate for the longest period for which the LIBO Screen Rate is available that is shorter than the Impacted Interest Period and (b) the LIBO Screen Rate for the shortest period for which the LIBO Screen Rate is available that exceeds the Impacted Interest Period, in each case, at such time.

Investments” of any Person shall mean (a) any loan or advance of funds or credit by such Person to any other Person, (b) any Contingent Obligation by such Person in respect of the Indebtedness or other obligation of any other Person (including, without limitation, any Support Agreement) (provided that upon termination of any such Contingent Obligation, no Investment in respect thereof shall be deemed outstanding, except as contemplated in clause (e) below), (c) any purchase or other acquisition of any Equity Interests or indebtedness or other securities of any other Person, (d) any capital contribution by such Person to any other Person, (e) without duplication of any amounts included under clause (b) above, any payment under any Contingent Obligation by such Person in respect of the Indebtedness or other obligation of any other Person (including, without limitation, any payment pursuant to any Support Agreement) or (f) the purchase or other acquisition (in one transaction or a series of transaction) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person. For purposes of the definition of “Unrestricted Subsidiary” and Section 10.04, “Investment” shall include the portion (proportionate to Borrower’s Equity Interest in such Subsidiary) of the fair market value of the net assets of any Subsidiary of Borrower at the time of Designation of such Subsidiary as an Unrestricted Subsidiary pursuant to Section 9.12 (excluding any Subsidiaries designated as Unrestricted Subsidiaries on the ClosingSixth Amendment Effective Date and set forth on Schedule 9.128.12(c)); provided, however, that upon the Revocation of a Subsidiary that was Designated as an Unrestricted Subsidiary after the ClosingSixth Amendment Effective Date, the amount of outstanding Investments in Unrestricted Subsidiaries shall be deemed to be reduced by the lesser of (x) the fair market value of such Subsidiary at the time of such Revocation and (y) the amount of Investments in such Subsidiary deemed to have been made (directly or indirectly) at the time of, and made (directly or indirectly) since, the Designation of such Subsidiary as an Unrestricted Subsidiary, to the extent that such amount constitutes an outstanding Investment under clauses (d), (i), (k), (l), (m), (q) or (s) of Section 10.04 at the time of such Revocation. For purpose hereof, the mere existence of the LandCo Support Agreement as in effect on the Closing Date shall not constitute an Investment but any payments made by Borrower pursuant to the LandCo Support Agreement shall constitute an Investment.

IP Holdco” means NP IP Holdings LLC, a Nevada limited liability company.

ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).

 

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Joinder Agreements” shall mean each Joinder Agreement substantially in the form of Exhibit M attached hereto or such other form as is reasonably acceptable to Administrative Agent and each Joinder Agreement to be entered into pursuant to the Security Agreement.

Joint Venture” shall mean any Person, other than an individual or a Wholly Owned Subsidiary of Borrower, in which Borrower or a Restricted Subsidiary of Borrower (directly or indirectly) holds or acquires an ownership interest (whether by way of capital stock, partnership or limited liability company interest, or other evidence of ownership).

Junior Financing” shall mean unsecured Indebtedness (including unsecured Indebtedness convertible into or exchangeable or exercisable for any Equity Interests) of Borrower or all or any Restricted Subsidiaries (a) (i) that is subordinated in right of payment to the Loans and contains subordination provisions that are customary in the good faith determination of Borrower for senior subordinated notes or subordinated notes issued under Rule 144A of the Securities Act (or other corporate issuers in private placements or public offerings of securities) or (ii) that contains subordination provisions reasonably satisfactory to Administrative Agent, (b) that shall not have a scheduled maturity date or any scheduled principal payments or be subject to any mandatory redemption, prepayment, or sinking fund (except for customary change of control provisions and, in the case of bridge facilities, customary mandatory redemptions or prepayments with proceeds of Permitted Refinancings thereof (which Permitted Refinancings would constitute Junior Financing) or Equity Issuances, and customary asset sale provisions that permit application of the applicable proceeds to the payment of the Obligations prior to application to such Junior Financing) due prior to the date that is 91 days after the Final Maturity Date then in effect at the time of issuance (excluding bridge facilities allowing extensions on customary terms to at least 91 days after such Final Maturity Date) and (c) the terms (excluding pricing, fees, rate floors, premiums, optional prepayment or optional redemption provisions) of which are (as determined by Borrower in good faith), taken as a whole, no more restrictive in any material respect to Borrower and its Restricted Subsidiaries than the terms set forth in this Agreement (other than, in the case of any bridge facility, covenants, defaults and remedy provisions customary for bridge financings).

Junior Prepayments” shall have the meaning provided in Section 10.09.

L/C Commitments” shall mean, with respect to each L/C Lender, the commitment of such L/C Lender to issue Letters of Credit pursuant to Section 2.03. The amount of each L/C Lender’s L/C Commitment as of the ClosingSixth Amendment Effective Date is set forth on Annex A-1 under the caption “L/C Commitment.” The L/C Commitments are part of, and not in addition to, the Revolving Commitments.

L/C Disbursements” shall mean a payment or disbursement made by any L/C Lender pursuant to a Letter of Credit.

L/C Documents” shall mean, with respect to any Letter of Credit, collectively, any other agreements, instruments, guarantees or other documents (whether general in application or applicable only to such Letter of Credit) governing or providing for (a) the rights and obligations of the parties concerned or at risk with respect to such Letter of Credit or (b) any collateral security for any of such obligations, each as the same may be amended or modified and in effect from time to time.

L/C Interest” shall mean, for each Revolving Lender, such Lender’s participation interest (or, in the case of each L/C Lender, such L/C Lender’s retained interest) in each L/C Lender’s liability under Letters of Credit and such Lender’s rights and interests in Reimbursement Obligations and fees, interest and other amounts payable in connection with Letters of Credit and Reimbursement Obligations.

L/C Lender” shall mean, as the context may require: (a) with respect to each Existing Letter of Credit, Deutsche Bank AG New York Branch, in its capacity as issuer of the Existing Letters of Credit, together with its successors and assigns in such capacity and (b) with respect to all other Letters of Credit, (i) Deutsche Bank AG New York Branch or any of its Affiliates, in its capacity as issuer of Letters of Credit issued by it hereunder, together with its successors and assigns in such capacity; (ii) Bank of America, N.A. or any of its Affiliates, in its capacity as issuer of Letters of Credit issued by it hereunder, together with its successors and assigns in such capacity; (iii) JPMorgan Chase Bank, N.A. or any of its Affiliates, in its capacity as issuer of Letters of Credit issued by it hereunder, together with its successors and assigns in such capacity; and/or (iv) any other Revolving Lender or Revolving Lenders selected

 

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by Borrower and reasonably acceptable to Administrative Agent (such approval not to be unreasonably withheld or delayed) that agrees to become an L/C Lender, in each case under this clause (ii) in its capacity as issuer of Letters of Credit issued by such Lender hereunder, together with its successors and assigns in such capacity.

L/C Liability” shall mean, at any time, without duplication, the sum of (a) the Stated Amount of all outstanding Letters of Credit at such time plus (b) the aggregate amount of all L/C Disbursements that have not yet been reimbursed at such time in respect of all Letters of Credit. The L/C Liability of any Revolving Lender at any time shall mean such Revolving Lender’s participations and obligations in respect of outstanding Letters of Credit at such time.

L/C Payment Notice” has the meaning provided in Section 2.03(d).

L/C Sublimit” shall mean an amount equal to the lesser of (a) $50.0 million and (b) the Total Revolving Commitments then in effect. The L/C Sublimit is part of, and not in addition to, the Total Revolving Commitments.

LandCo” means CV PropCo, LLC, a Nevada limited liability company.

LandCo Cost Allocation Agreement” means that certain Cost Sharing Agreement, dated as of June 16, 2011, by and among Borrower, LandCo, LandCo Holdings, NP Tropicana LLC and any other parties signatory thereto.

LandCo Credit Agreement” means (a) that certain Amended and Restated Credit Agreement, dated as of June 16, 2011, among LandCo, the lenders party thereto and Deutsche Bank, as administrative agent and (b) any other credit agreement, loan agreement, note agreement, promissory note, indenture or other agreement or instrument evidencing or governing the terms of any Indebtedness or other financial accommodation that has been incurred to extend, renew, refinance or replace (whether by the same or different banks) in whole or in part (under one or more agreements) the Indebtedness and other obligations outstanding under the LandCo Credit Agreement referred to in clause (a) above or any other agreement or instrument referred to in this clause (b).

LandCo Holdings” means NP Landco Holdco LLC, a Nevada limited liability company.

LandCo Holdings LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of NP Landco Holdco LLC dated June 16, 2011.

LandCo Loan Documents” means the Loan Documents (as defined in the LandCo Credit Agreement).

LandCo Support Agreement” means that certain Limited Support Agreement and Recourse Guaranty, dated as of June 16, 2011, executed by Borrower.

Laws” shall mean, collectively, all common law and all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents, including without limitation the interpretation thereof by any Governmental Authority charged with the enforcement thereof.

Lead Arrangers” shall mean, collectively, the Pro Rata Lead Arrangers and, the Term B Lead Arrangers, the Third Amendment Refinancing Arranger and the Sixth Amendment Lead Arrangers, in their capacities as joint lead arrangers and joint bookrunners hereunder.

Lease” shall mean any lease, sublease, franchise agreement, license, occupancy or concession agreement.

Lender Insolvency Event” shall mean that (i) a Lender or its Parent Company is insolvent, or is generally unable to pay its debts as they become due, or admits in writing its inability to pay its debts as they become due, or makes a general assignment for the benefit of its creditors, or (ii) such Lender or its Parent Company is the subject of a proceeding under any Debtor Relief Law, or a receiver, trustee, conservator, intervenor, administrator, sequestrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets (including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority) has been appointed for such Lender or its Parent Company, or such Lender or its Parent Company has taken any action

 

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authorizing or indicating its consent to or acquiescence in any such proceeding or appointment; provided, however, that a Lender Insolvency Event shall not be deemed to exist solely as the result of the acquisition or maintenance of an ownership interest in such Lender or its Parent Company by a Governmental Authority or an instrumentality thereof so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.

Lenders” shall mean (a) as of the Sixth Amendment Effective Date, each Person listed on Annexes A-1, A-2, and A-3, A-4 and A-5, (b) any Lender providing an Incremental Commitment pursuant to Section 2.12 and any Person that becomes a Lender from time to time party hereto pursuant to Section 2.15 and (c) any Person that becomes a “Lender” hereunder pursuant to an Assignment Agreement, in each case, other than any such Person that ceases to be a Lender pursuant to an Assignment Agreement or a Borrower Assignment Agreement. Unless the context requires otherwise, the term “Lenders” shall include the Swingline Lender and the L/C Lender.

Letter of Credit Request” has the meaning provided in Section 2.03(b).

Letters of Credit” shall have the meaning provided in Section 2.03(a) and shall include each Existing Letter of Credit.

“LIBO Base Rate” means, with respect to any LIBOR Loan for any Interest Period, the LIBO Screen Rate at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period; provided that if the LIBO Screen Rate shall not be available at such time for such Interest Period (an “Impacted Interest Period”) then the LIBO Base Rate shall be the Interpolated Rate.

LIBO BaseScreen Rate shall mean means, for any day and time, with respect to any LIBOR Loan for any Interest Period therefor, the rate per annum equal to the London Interbank Offered Rate (“LIBOR”) or a comparable or successor rate, which rate is, the London interbank offered rate as administered by ICE Benchmark Administration Limited (or any other Person that takes over the administration of such rate) for U.S. Dollars for a period equal in length to such Interest Period as displayed on pagesuch day and time on pages LIBOR01 or LIBOR02 of the Reuters Screen at or about 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period (for delivery on the first day of such Interest Period); provided that to the extent a comparable or successor rate is approved by the Administrative Agent in connection herewith, the approved rate shall be consistent with market practice for LIBOR-based loans (and the application of such rate shall also be in accordance with market practice); provided, further that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent. Notwithstanding the foregoing, the LIBO Base Rate shall not be less than 0.00%.screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by Administrative Agent in its reasonable discretion); provided that if the LIBO Screen Rate as so determined would be less than zero, such rate shall be deemed to zero for the purposes of this Agreement.

LIBO Rate” shall mean, for any LIBOR Loan for any Interest Period therefor, a rate per annum (rounded upwards, if necessary, to the nearest 1/100th of 1%) determined by Administrative Agent to be equal to the LIBO Base Rate for such Loan for such Interest Period divided by 1 minus the Reserve Requirement (if any) for such Loan for such Interest Period. Notwithstanding the foregoing, (a) for purposes of clause (c) of the definition of Alternate Base Rate, the rates referred to above shall be the rates as of 11:00 a.m., London, England time, on the date of determination (rather than the second Business Day preceding the date of determination) and (b) the LIBO Rate for Term BB-1 Facility Loans shall not be less than 0.750.25%.

LIBOR Loans” shall mean Loans that bear interest at rates based on rates referred to in the definition of “LIBO Rate.”

 

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License Revocation” shall mean the revocation, failure to renew or suspension of, or the appointment of a receiver, supervisor or similar official with respect to, any Gaming License covering any Gaming Facility owned, leased, operated or used by Borrower or any of its Restricted Subsidiaries, but excluding any such revocation, failure to renew, suspension or appointment to the extent such Gaming License relates to a Gaming Facility that (a) is located on a Native American Indian reservation and/or (b) is located in a jurisdiction (i) in which none of Borrower or its Subsidiaries owned, leased, operated or managed a Gaming Facility on the ClosingSixth Amendment Effective Date and (ii) the Gaming Laws of which have permitted gambling in the form of slot machines and table games to be conducted by any person or persons who are not Native American Indians or are acting or managing gaming operations for or on behalf of Native American Indians for less than two (2) years at the time of any such revocation, failure to renew, suspension or appointment.

Lien” shall mean, with respect to any Property, any mortgage, deed of trust, lien, pledge, security interest, or assignment, hypothecation or encumbrance for security of any kind, or any filing of any financing statement under the UCC or any other similar notice of lien under any similar notice or recording statute of any Governmental Authority (other than such financing statement or similar notices filed for informational or precautionary purposes only), or any conditional sale or other title retention agreement or any lease in the nature thereof.

Liquor Authority” has the meaning set forth in Section 13.13(a).

Liquor Laws” has the meaning set forth in Section 13.13(a).

Loans” shall mean the Revolving Loans, the Swingline Loans and the Term Loans.

Losses” of any Person shall mean the losses, liabilities, claims (including those based upon negligence, strict or absolute liability and liability in tort), damages, reasonable expenses, obligations, penalties, actions, judgments, penalties, fines, suits, reasonable and documented costs or disbursements (including reasonable fees and expenses of one primary counsel for the Secured Parties collectively, and any local counsel reasonably required in any applicable jurisdiction (and solely in the case of an actual or perceived conflict of interest, where the Persons affected by such conflict inform Borrower in writing of the existence of an actual or perceived conflict of interest prior to retaining additional counsel, one additional of each such counsel for each group of similarly situated Secured Parties), in connection with any Proceeding commenced or threatened in writing, whether or not such Person shall be designated a party thereto) at any time (including following the payment of the Obligations) incurred by, imposed on or asserted against such Person.

Manager Allocation Agreement” shall mean that certain Manager Allocation Agreement, dated June 16, 2011, by and among Fertitta Entertainment, Borrower, FE Landco Management LLC, and certain other Subsidiaries of Fertitta Entertainment (it being acknowledged that such agreement has been terminated as to FE Opco Management LLC, FE GVR Management LLC and FE PropCo Management LLC).

Margin Stock” shall mean margin stock within the meaning of Regulation T, Regulation U and Regulation X.

Material Adverse Effect” shall mean (a) a material adverse effect on the business, assets, financial condition or results of operations of Borrower and its Restricted Subsidiaries, taken as a whole and after giving effect to the Transactions, (b) a material adverse effect on the ability of the Credit Parties, the Holding Companies and RRR (taken as a whole) to satisfy their material payment Obligations under the Credit Documents or (c) a material adverse effect on the legality, binding effect or enforceability against any material Credit Party, Holding Company or RRR of the Credit Documents to which it is a party or any of the material rights and remedies of any Secured Party thereunder or the legality, priority or enforceability of the Liens on a material portion of the Collateral.

Material Indebtedness” shall mean any Indebtedness the outstanding principal amount of which is in excess of $50.0 million.

Maximum Rate” has the meaning set forth in Section 13.18.

 

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Minimum Collateral Amount” means, at any time, (i) with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or eliminate un-reallocated portions of L/C Liabilities during the existence of a Defaulting Lender, an amount equal to 103% of the un-reallocated L/C Liabilities at such time, (ii) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Sections 2.01(e), 2.03, 2.10(b)(ii), 2.10(c), 2.10(e), 2.16(a)(i), 2.16(a)(ii) or 11.01 or 11.02, an amount equal to 103% of the aggregate L/C Liability, and (iii) otherwise, an amount determined by the Administrative Agent and the L/C Lenders in their reasonable discretion.

Moody’s” shall mean Moody’s Investors Service, Inc., or any successor entity thereto.

Mortgage” shall mean an agreement, including, but not limited to, a mortgage, deed of trust or any other document, creating and evidencing a first Lien (subject only to the Liens permitted thereunder) in favor of Collateral Agent on behalf of the Secured Parties on each Mortgaged Real Property, which shall be in substantially the form of Exhibit I or such other form as is reasonably acceptable to Administrative Agent, with such schedules and including such provisions as shall be necessary to conform such document to applicable or local law or as shall be customary under local law, as the same may at any time be amended in accordance with the terms thereof and hereof and such changes thereto as shall be reasonably acceptable to Administrative Agent.

Mortgaged Real Property” shall mean (a) each Real Property listed on Schedule 1.01(C) and (b) each Real Property, if any, which shall be subject to a Mortgage delivered on or after the Closing Date pursuant to Section 9.08, 9.11 or 9.15 (in each case, unless and until such Real Property is no longer subject to a Mortgage).

Mortgaged Vessel” shall mean each Vessel or Replacement Vessel, if any, which shall be subject to a Ship Mortgage after the Closing Date pursuant to Section 9.08 or 9.11 (in each case, unless and until such Vessel or Replacement Vessel is no longer subject to a Ship Mortgage).

Multiemployer Plan” shall mean a multiemployer plan within the meaning of Section 4001(a)(3) of ERISA (a) to which any ERISA Entity is then making or accruing an obligation to make contributions, (b) to which any ERISA Entity has within the preceding five plan years made contributions, including any Person which ceased to be an ERISA Entity during such five year period or (c) with respect to which any Company is reasonably likely to incur liability under Title IV of ERISA.

NAIC” shall mean the National Association of Insurance Commissioners.

Native American Contracts” means (a) each contract listed under the heading “Native American Contracts” on Schedule 1.01(E), and (b) any other agreements (including, without limitation, management agreements, development agreements and loan documents) with Tribes related to the development, construction, management or operation of gaming, lodging and other related businesses.

Native American Investment Rollover Amount” shall have the meaning provided in Section 10.04(u).

Native American Investments” means Investments in the form of (i) loans or advances or (ii) specified required payments, in any case by Native American Subsidiaries pursuant to a Native American Contract.

Native American Subsidiary” means (a) as of the ClosingSixth Amendment Effective Date, those Subsidiaries of the Borrower which are designated as such on Schedule 8.12(d) and (b) each additional Subsidiary of the Borrower which is hereafter designated as such from time to time after the Sixth Amendment Effective Date by written notice to the Administrative Agent in a manner consistent with the provisions of Section 9.13(d); provided that no such Subsidiary shall be (or, in the case of clauses (i) and (ii), remain) so designated (i) unless at all times such Subsidiary is engaging exclusively in the business of managing, constructing, developing, servicing, and otherwise supporting gaming, lodging and other related businesses under the auspices of a Tribe in connection with a Native American Contract, (ii) unless at all times neither it nor any of its Subsidiaries owns (x) any interest in any Core Property or any Equity Interests in any Person that is not itself a Native American Subsidiary or (y) any other material asset other than Real Property (and improvements thereon), contracts and related contract rights and other general intangibles, promissory notes and cash and Cash Equivalents or (iii) when any Default has occurred and is continuing. Solely for the purposes of the definition of “Excluded AssetsProperty” set forth in the Security Agreement and the Pledge Agreement, “Native American Subsidiary” shall include any Person (other than a Subsidiary) in which the

 

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Borrower or a Restricted Subsidiary holds an Equity Interest that is designated as such by the Borrower; provided that (A) no such Person shall be (or remain) so designated unless (x) at all times such Person is engaging exclusively in the business of managing, constructing, developing, servicing, and otherwise supporting gaming, lodging and other related businesses under the auspices of a Native American tribe, band or other forms of government, and (y) at all times neither it nor any of its Subsidiaries owns any Equity Interests in any Person that is not itself designated as a “Native American Subsidiary” pursuant to this sentence and (B) Borrower shall not make such designation if a Default has occurred and is continuing.

“Net Available Proceeds” shall mean:

(i) in the case of any Asset Sale pursuant to Section 10.05(c), the aggregate amount of all cash payments (including any cash payments received by way of deferred payment of principal pursuant to a note or otherwise, but only as and when received) received by Borrower or any Restricted Subsidiary directly or indirectly in connection with such Asset Sale, net (without duplication) of (A) the amount of all reasonable fees and expenses and transaction costs paid by or on behalf of Borrower or any Restricted Subsidiary in connection with such Asset Sale (including, without limitation, any underwriting, brokerage or other customary selling commissions and legal, advisory and other fees and expenses, including survey, title and recording expenses, transfer taxes and expenses incurred for preparing such assets for sale, associated therewith); (B) any Taxes paid or estimated in good faith to be payable by or on behalf of any Company as a result of such Asset Sale (including, without duplication, distributions pursuant to Section 10.06(p) as a result of such Asset Sale) (after application of all credits and other offsets that arise from such Asset Sale); (C) any repayments by or on behalf of any Company of Indebtedness (other than Indebtedness hereunder) to the extent such Indebtedness is secured by a Lien on such Property that is permitted by the Credit Documents and that is not junior to the Lien thereon securing the Obligations and such Indebtedness is required to be repaid as a condition to the purchase or sale of such Property; (D) amounts required to be paid to any Person (other than any Company) owning a beneficial interest in the subject Property; and (E) amounts reserved, in accordance with GAAP, against any liabilities associated with such Asset Sale and retained by Borrower or any of its Subsidiaries after such Asset Sale and related thereto, including pension and other post-employment benefit liabilities, purchase price adjustments, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale, all as reflected in an Officer’s Certificate delivered to Administrative Agent; provided, that no such amounts shall constitute Net Available Proceeds under this clause (i) unless (x) the aggregate value of the Property sold in any single Asset Sale or related series of Asset Sales is greater than or equal to $15.0 million (and only net cash proceeds in excess of such amount shall constitute Net Available Proceeds under this clause (i)) or (y) the aggregate value of all Property sold in Asset Sales in any fiscal year exceeds $25.0 million (and thereafter only net cash proceeds in excess of such amount shall constitute Net Available Proceeds under this clause (i)); provided, further, that Net Available Proceeds shall include any cash payments received upon the reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of any reserve described in clause (E) of this clause (i) or, if such liabilities have not been satisfied in cash and such reserve is not reversed within eighteen (18) months after such Asset Sale, the amount of such reserve;

(ii) in the case of any Casualty Event, the aggregate amount of cash proceeds of insurance, condemnation awards and other compensation (excluding proceeds constituting business interruption insurance or other similar compensation for loss of revenue, but including the proceeds of any disposition of Property pursuant to Section 10.05(l)) received by the Person whose Property was subject to such Casualty Event in respect of such Casualty Event net of (A) fees and expenses incurred by or on behalf of Borrower or any Restricted Subsidiary in connection with recovery thereof, (B) any repayments by or on behalf of any Company of Indebtedness (other than Indebtedness hereunder) to the extent such Indebtedness is secured by a Lien on such Property that is permitted by the Credit Documents and that is not junior to the Lien thereon securing the Obligations and such Indebtedness is required to be repaid as a result of such Casualty Event, and (C) any Taxes paid or payable by or on behalf of Borrower or any Restricted Subsidiary in respect of the amount so recovered (including, without duplication, distributions pursuant to Section 10.06(p) as a result of such amount) (after application of all credits and other offsets arising from such Casualty Event) and amounts required to be paid to any Person (other than any Company) owning a beneficial interest in the subject Property; provided, that no such amounts shall constitute Net Available Proceeds under this clause (ii) unless (x) the aggregate proceeds or other compensation in respect of any single Casualty Event is greater than or

 

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equal to $15.0 million (and only net cash proceeds in excess of such amount shall constitute Net Available Proceeds under this clause (ii)) or (y) the aggregate proceeds or other compensation in respect of all Casualty Events in any fiscal year exceeds $25.0 million (and thereafter only net cash proceeds in excess of such amount shall constitute Net Available Proceeds under this clause (ii)); provided that, in the case of a Casualty Event with respect to property that is subject to a lease entered into for the purpose of, or with respect to, operating or managing gaming facilities and related assets, such cash proceeds shall not constitute Net Available Proceeds to the extent, and for so long as, such cash proceeds are required, by the terms of such lease, (x) to be paid to the holder of any mortgage, deed of trust or other security agreement securing indebtedness of the lessor or (y) to be paid to, or for the account of, the lessor or deposited in an escrow account to fund rent and other amounts due with respect to such property and costs to preserve, stabilize, repair, replace or restore such property (in accordance with the provisions of the applicable lease); and

(iii) in the case of any Debt Issuance or Equity Issuance, the aggregate amount of all cash received in respect thereof by the Person consummating such Debt Issuance or Equity Issuance in respect thereof net of all investment banking fees, discounts and commissions, legal fees, consulting fees, accountants’ fees, underwriting discounts and commissions and other fees and expenses, actually incurred in connection therewith.

“New Revolving Commitments” shall have the meaning set forth in Section 2.12(a).

“New Revolving Loans” shall have the meaning set forth in Section 2.12(a).

New Term Loan Commitments” has the meaning set forth in Section 2.12(a).

New Term Loan Facility” shall mean each credit facility comprising New Term Loan Commitments and New Term Loans of a particular Tranche, if any.

New Term Loan Maturity Date” shall mean, with respect to any New Term Loans to be made pursuant to the related Incremental Joinder Agreement, the maturity date thereof as determined in accordance with Section 2.12(b).

New Term Loan Notes” shall mean the promissory notes executed and delivered in connection with any New Term Loan Commitments and the related New Term Loans.

New Term Loans” has the meaning set forth in Section 2.12(a).

Non-Defaulting Lender” shall mean each Lender other than a Defaulting Lender.

Non-Extension Notice Date” shall have the meaning provided by Section 2.03(b).

Non-U.S. Lender” has the meaning set forth in Section 5.06(b).

North Fork Project” shall mean the development by SC Madera Development, LLC of Native American gaming opportunities pursuant to the Second Amended and Restated Development Agreement dated August 11, 2014 (as amended from time to time) between The North Fork Rancheria of Mono Indians of California and SC Madera Development, LLC and the management by SC Madera Management, LLC of any Native American gaming enterprise so developed pursuant to the Second Amended and Restated Management Agreement dated August 11, 2014 (as amended from time to time) between The North Fork Rancheria of Mono Indians of California and SC Madera Management, LLC.

Notes” shall mean the Revolving Notes, the Swingline Note and the Term Loan Notes.

Notice of Borrowing” shall mean a notice of borrowing substantially in the form of Exhibit B or such other form as is reasonably acceptable to Administrative Agent.

 

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Notice of Continuation/Conversion” shall mean a notice of continuation/conversion substantially in the form of Exhibit C or such other form as is reasonably acceptable to Administrative Agent.

Notice of Intent to Cure” has the meaning set forth in Section 9.04(c).

NYFRB” shall mean the Federal Reserve Bank of New York.

NYFRB Rate” shall mean, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a Federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

Obligations” shall mean all amounts, liabilities and obligations, direct or indirect, contingent or absolute, of every type or description, and at any time existing, owing by any Credit Party, Holding Company or RRR to any Secured Party or any of its Agent Related Parties or their respective successors, transferees or assignees pursuant to the terms of any Credit Document, any Credit Swap Contract or any Secured Cash Management Agreement (including in each case interest accruing or obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), whether or not the right of such Person to payment in respect of such obligations and liabilities is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured and whether or not such claim is discharged, stayed or otherwise affected by any bankruptcy case or insolvency or liquidation proceeding.

Officer’s Certificate” shall mean, as applied to any entity, a certificate executed on behalf of such entity (or such entity’s manager or member or general partner, as applicable) by its chairman of the board of directors (or functional equivalent) (if an officer), its chief executive officer, its president, any of its vice presidents, its chief financial officer, its chief accounting officer or its treasurer or controller (in each case, or an equivalent officer) in their official (and not individual) capacities.

Opco” means NP Opco LLC, a Nevada limited liability company.

Open Market Assignment and Assumption Agreement” shall mean an Open Market Assignment and Assumption Agreement substantially in the form attached as Exhibit P hereto or such other form as is reasonably acceptable to Administrative Agent.

Organizational Document” shall mean, relative to any Person, its certificate of incorporation, its certificate of formation, its certificate of partnership, its by-laws, its partnership agreement, its limited liability company agreement, its memorandum or articles of association, share designations or similar organization documents and all shareholder agreements, voting trusts and similar arrangements applicable to any of its authorized Equity Interests.

Other Applicable Indebtedness” shall mean Indebtedness incurred pursuant to Section 10.01(c), (h), (k), (n), (q), (u) and (v).

Other Commitments” means the Other Term Loan Commitments and Other Revolving Commitments.

Other Debt” has the meaning set forth in the definition of “Repricing Transaction.”

Other First Lien Indebtedness” shall mean outstanding Indebtedness that is not incurred under this Agreement and that (a) is secured by the Collateral on a pari passu basis with the Obligations and (b) is Permitted First Priority Refinancing Debt, Permitted First Lien Indebtedness or Incremental Equivalent Debt.

 

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Other Junior Indebtedness” shall mean the Senior Unsecured Notes (and any Permitted Refinancing thereof), 2020 Senior Unsecured Notes (and any Permitted Refinancing thereof), Permitted Unsecured Indebtedness, Permitted Second Lien Indebtedness, Permitted Unsecured Refinancing Debt, Permitted Second Priority Refinancing Debt, Indebtedness incurred pursuant to Section 10.01(p), Indebtedness incurred pursuant to Section 10.01(q) or Incremental Equivalent Debt that is secured by a Lien on Collateral junior to the Liens securing the Obligations or that is unsecured.

Other Junior Indebtedness Documentation” shall mean the documentation governing any Other Junior Indebtedness.

Other Revolving Commitments” means one or more Tranches of revolving credit commitments hereunder that result from a Refinancing Amendment.

Other Revolving Loans” means one or more Tranches of Revolving Loans that result from a Refinancing Amendment.

Other Taxes” has the meaning set forth in Section 5.06(e).

Other Term Loan Commitments” means one or more Tranches of term loan commitments hereunder that result from a Refinancing Amendment.

Other Term Loans” means one or more Tranches of Term Loans that result from a Refinancing Amendment.

Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight Eurodollar borrowings by U.S.-managed banking offices of depository institutions (as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time), and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate (from and after such date as the NYFRB shall commence to publish such composite rate).

Paid in Full” or “Payment in Full” and any other similar terms, expressions or phrases shall mean, at any time, (a) with respect to obligations other than the Obligations or the Secured Obligations (as defined in the Security Agreement), the payment in full of all of such obligations and (b) with respect to the Obligations or the Secured Obligations (as defined in the Security Agreement), the irrevocable termination of all Commitments, the payment in full in cash of all Obligations (except undrawn Letters of Credit and Unasserted Obligations), including principal, interest, fees, costs (including post-petition interest, fees and costs even if such interest, fees and costs are not an allowed claim enforceable against any Credit Party, any Holding Company or RRR in a bankruptcy case under applicable law) and premium (if any), and the discharge or Cash Collateralization of all Letters of Credit outstanding in an amount equal to 103% of the greatest amount for which such Letters of Credit may be drawn (or receipt of backstop letters of credit reasonably satisfactory to the applicable L/C Lender and the Administrative Agent). For purposes of this definition, “Unasserted Obligations” means, at any time, contingent indemnity obligations in respect of which no claim or demand for payment has been made at such time.

“Palms Acquisition” shall mean the anticipated or consummated acquisition of the Palms Casino Resort by a Restricted Subsidiary of Borrower pursuant to that certain Interest Purchase Agreement, dated May 10, 2016 (as the same may be amended or modified from time to time), entered into by and among Borrower, FP Holdings, L.P., a Nevada limited partnership, FP VoteCo, L.L.C., a Delaware limited liability company and FP ParentCo, L.P., a Delaware limited partnership, pursuant to which a Restricted Subsidiary will acquire the outstanding limited liability company interests and partnership interests issued by Fiesta ParentCo, L.L.C, FP HoldCo, L.L.C., and FP Holdings, L.P.

Parent Company” shall mean, with respect to a Lender, the bank holding company (as defined in Federal Reserve Board Regulation Y), if any, of such Lender, and/or any Person owning, beneficially or of record, directly or indirectly, a majority of the shares of such Lender.

Pari Passu Intercreditor Agreement” means an intercreditor agreement substantially in the form of Exhibit S hereto or such other form as is reasonably acceptable to Administrative Agent.

 

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PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA, or any successor thereto.

Pension Plan” shall mean an employee pension benefit plan (other than a Multiemployer Plan) that is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code or Section 302 of ERISA and is maintained or contributed to by any ERISA Entity or with respect to which any Company is reasonably likely to incur liability under Title IV of ERISA.

Perfection Certificate” shall mean that certain Perfection Certificate, dated as of the Closing Date (the “Initial Perfection Certificate”), executed and delivered by Borrower on behalf of Borrower and each of the Guarantors existing on the initial Funding Date, and each other Perfection Certificate (which shall be substantially in the form of Exhibit N or such other form as is reasonably acceptable to Administrative Agent) executed and delivered by the applicable Credit Party from time to time, in each case, as the same may be amended, amended and restated, supplemented or otherwise modified from time to time in accordance with Section 9.04(h)(ii).

Permits” has the meaning set forth in Section 8.15.

Permitted Acquisition” shall mean any acquisition, whether by purchase, merger, consolidation or otherwise, by Borrower or any of its Restricted Subsidiaries of all or substantially all of the business, property or assets of, or Equity Interests in, a Person or any division or line of business of a Person so long as (a) immediately after a binding contract with respect thereto is entered into between Borrower or one of its Restricted Subsidiaries and the seller with respect thereto and after giving pro forma effect to such acquisition and related transactions, no Event of Default has occurred and is continuing or would result therefrom and Borrower and its Restricted Subsidiaries shall be in compliance on a Pro Forma Basis (regardless of whether any Revolving Facility, the Term A Facility, the Term A-3 Facility or the Term A-45 Facility are then in effect) with the Financial Maintenance Covenants as of the most recent Calculation Date (giving effect to such acquisition and any related anticipated incurrences and repayments of Indebtedness as if consummated on the first day of relevant Test Period), (b) immediately after giving effect thereto, Borrower shall be in compliance with Section 10.11, (c) in the case of a Permitted Acquisition consisting of a purchase or acquisition of the Equity Interests in any Person that does not become a Guarantor hereunder (except to the extent becoming a Guarantor is prohibited by applicable Gaming Laws) or of an acquisition by a Person that is not a Guarantor (and does not become a Guarantor) hereunder, the consideration paid in all such Permitted Acquisitions shall not exceed an aggregate amount equal to the sum of (i) $35.0 million during the term of this Agreement plus (ii) the amounts available for Investments set forth in Section 10.04(k) and (d) with respect to a Permitted Acquisition in excess of $50.0 million, Borrower has delivered to Administrative Agent an Officer’s Certificate to the effect set forth in clauses (a), (b) and (c) above, together with all relevant financial information for the Person or assets to be acquired.

Permitted Business” means any business of the type in which Borrower and its Restricted Subsidiaries are engaged or proposed to be engaged on the date of this Agreement, or any business reasonably related, incidental or ancillary thereto (including assets or businesses complementary thereto).

Permitted Business Assets” means (a) one or more Permitted Businesses, (b) a controlling equity interest in any Person whose assets consist primarily of one or more Permitted Businesses, (c) assets that are used or useful in a Permitted Business or (d) any combination of the preceding clauses (a), (b) and (c), in each case, as determined by Borrower’s Board of Directors or a Responsible Officer or other management of Borrower or the Restricted Subsidiary acquiring such assets, in each case, in its good faith judgment.

Permitted Equity Issuance” means any issuance of Equity Interests (other than Disqualified Capital Stock) by any one or more of Borrower, the Holding Companies or RRR

Permitted First Lien Indebtedness” means any Indebtedness of Borrower (and Contingent Obligations of the Guarantors in respect thereof) that (a) is secured by the Collateral on a pari passu basis (but without regard to the control of remedies) to the Liens securing the Obligations and the obligations in respect of any Permitted First Priority Refinancing Debt and is not secured by any property or assets of Borrower or any Restricted Subsidiary other than the Collateral, (b) the holders of such Indebtedness (or their representative) and Administrative Agent shall be party to the Pari Passu Intercreditor Agreement, (c) is not scheduled to mature prior to the Final Maturity Date then in effect at the time of issuance (excluding bridge facilities allowing extensions on customary terms to at least such Final

 

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Maturity Date), (d) is not at any time guaranteed by any Subsidiaries other than Subsidiaries that are Guarantors, (e) the terms (excluding pricing, fees, rate floors, premiums, optional prepayment or optional redemption provisions) of which are (as determined by Borrower in good faith), taken as a whole, no more restrictive in any material respect to Borrower and its Restricted Subsidiaries than the terms set forth in this Agreement (other than, in the case of any bridge facility, covenants, defaults and remedy provisions customary for bridge financings) and (f) other than in the case of a revolving credit facility, does not have a Weighted Average Life to Maturity (excluding the effects of any prepayments of Term Loans reducing amortization) that is shorter than that of any outstanding Term Loans (excluding bridge facilities allowing extensions on customary terms at least to such Final Maturity Date).

Permitted First Priority Refinancing Debt” means any secured Indebtedness incurred by Borrower (and Contingent Obligations of the Guarantors in respect thereof) in the form of one or more series of senior secured notes or loans; provided that (a) such Indebtedness is secured by the Collateral on a pari passu basis (but without regard to the control of remedies) with the Obligations and is not secured by any property or assets of Borrower or any Restricted Subsidiary other than the Collateral, (b) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness, (c) such Indebtedness is not at any time guaranteed by any Subsidiaries other than Subsidiaries that are Guarantors, and (d) the holders of such Indebtedness (or their representative) and Administrative Agent shall be party to the Pari Passu Intercreditor Agreement.

Permitted Junior Debt Conditions” means that such applicable debt (i) does not have a scheduled maturity date prior to the date that is 91 days after the Final Maturity Date then in effect at the time of issuance (excluding bridge facilities allowing extensions on customary terms to at least 91 days after such Final Maturity Date), (ii) does not have a Weighted Average Life to Maturity (excluding the effects of any prepayments of Term Loans reducing amortization) that is shorter than that of any outstanding Term Loans (excluding bridge facilities allowing extensions on customary terms to at least ninety-one (91) days after the Final Maturity Date), (iii) shall not have any scheduled principal payments or be subject to any mandatory redemption, prepayment, or sinking fund (except for customary change of control (and, in the case of convertible or exchangeable debt instruments, delisting) provisions and, in the case of bridge facilities, customary mandatory redemptions or prepayments with proceeds of Permitted Refinancings thereof (which Permitted Refinancings would constitute Junior Financing) or Equity Issuances, and customary asset sale provisions that permit application of the applicable proceeds to the payment of the Obligations prior to application to such Junior Financing) due prior to the date that is ninety-one (91) days after the Final Maturity Date then in effect at the time of issuance (excluding bridge facilities allowing extensions on customary terms to at least ninety-one (91) days after such Final Maturity Date), (iv) is not at any time guaranteed by any Subsidiaries other than Subsidiaries that are Guarantors and (v) has terms (excluding pricing, fees, rate floors, premiums, optional prepayment or optional redemption provisions) that are (as determined by Borrower in good faith), taken as a whole, no more restrictive in any material respect to Borrower and its Restricted Subsidiaries than the terms set forth in this Agreement (other than, in the case of any bridge facility, covenants, defaults and remedy provisions customary for bridge financings). For the avoidance of doubt, (i) the terms of the Senior Unsecured Notes and the 2020 Senior Unsecured Notes, and (ii) the usual and customary terms of convertible or exchangeable debt instruments issued in a registered offering or under Rule 144A of the Securities Act, in each case, shall be deemed to be no more restrictive in any material respect to Borrower and its Restricted Subsidiaries than the terms set forth in this Agreement.

Permitted Liens” has the meaning set forth in Section 10.02.

Permitted Refinancing” shall mean, with respect to any Indebtedness, any refinancing thereof; provided that: (a) no Default or Event of Default shall have occurred and be continuing or would arise therefrom; (b) any such refinancing Indebtedness shall (i) not have a stated maturity or, other than in the case of a revolving credit facility, a Weighted Average Life to Maturity that is shorter than that of the Indebtedness being refinanced, (ii) if the Indebtedness being refinanced is subordinated to the Obligations by its terms or by the terms of any agreement or instrument relating to such Indebtedness, be at least as subordinate to the Obligations as the Indebtedness being refinanced (and unsecured if the refinanced Indebtedness is unsecured) and (iii) be in a principal amount that does not exceed the principal amount so refinanced, plus, accrued interest, plus, any premium or other payment required to be paid in connection with such refinancing, plus, the amount of fees and expenses of Borrower or any of its Restricted Subsidiaries incurred in connection with such refinancing, plus, any unutilized commitments thereunder; and (c) the obligors on such refinancing Indebtedness shall be the obligors on such Indebtedness being refinanced; provided, however, that (i) the borrower of the refinancing indebtedness shall be Borrower or the borrower of the indebtedness being refinanced and (ii) any Credit Party shall be permitted to guarantee any such refinancing Indebtedness of any other Credit Party.

 

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Permitted Second Lien Indebtedness” means any Indebtedness of Borrower (and Contingent Obligations of the Guarantors in respect thereof) that (a) is secured by the Collateral on a second priority (or other junior priority) basis to the Liens securing the Obligations and the obligations in respect of any Permitted First Priority Refinancing Debt and any Permitted First Lien Indebtedness and is not secured by any property or assets of Borrower or any Restricted Subsidiary other than the Collateral, (b) meets the Permitted Junior Debt Conditions and (c) the holders of such Indebtedness (or their representative) shall be party to the Second Lien Intercreditor Agreement (as “Second Priority Debt Parties”) with the Administrative Agent.

Permitted Second Priority Refinancing Debt” means secured Indebtedness incurred by Borrower (and Contingent Obligations of the Guarantors in respect thereof) in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans; provided that (a) such Indebtedness is secured by the Collateral on a second priority (or other junior priority) basis to the liens securing the Obligations and the obligations in respect of any Permitted First Priority Refinancing Debt and any Permitted First Lien Indebtedness and is not secured by any property or assets of Borrower or any Restricted Subsidiary other than the Collateral, (b) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness (provided, that such Indebtedness may be secured by a Lien on the Collateral that is junior to the Liens securing the Obligations and the obligations in respect of any Permitted First Priority Refinancing Debt and Permitted First Lien Indebtedness, notwithstanding any provision to the contrary contained in the definition of “Credit Agreement Refinancing Indebtedness”), (c) the holders of such Indebtedness (or their representative) shall be party to the Second Lien Intercreditor Agreement (as “Second Priority Debt Parties”) with the Administrative Agent and (d) such Indebtedness meets the Permitted Junior Debt Conditions.

Permitted Unsecured Indebtedness” means any unsecured Indebtedness of Borrower (and Contingent Obligations of the Guarantors in respect thereof) that meets the Permitted Junior Debt Conditions or is Junior Financing. For the avoidance of doubt, Disqualified Capital Stock shall not constitute Permitted Unsecured Indebtedness.

Permitted Unsecured Refinancing Debt” means unsecured Indebtedness incurred by Borrower or its Restricted Subsidiaries in the form of one or more series of senior unsecured notes or loans; provided that such Indebtedness (a) constitutes Credit Agreement Refinancing Indebtedness and (b) meets the Permitted Junior Debt Conditions.

Permitted Vessel Liens” shall mean maritime Liens on ships, barges or other vessels for damages arising out of a maritime tort, wages of a stevedore, when employed directly by a Person listed in 46 U.S.C. § 31341, crew’s wages, salvage and general average, whether now existing or hereafter arising and other maritime Liens which arise by operation of law during normal operations of such ships, barges or other vessels.

Person” shall mean any individual, corporation, company, association, partnership, limited liability company, joint venture, trust, unincorporated organization or Governmental Authority or any other entity. Any division of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).

Pledge Agreement” means the Pledge Agreement executed by the Holding Companies and RRR, substantially in the form of Exhibit F, as may be amended or supplemented by the VoteCo SPE Pledge Joinder, as the same may be amended in accordance with the terms thereof and hereof.

Pledged Collateral” shall mean, collectively, the “Pledged Collateral” as defined in the Security Agreement and the “Pledged Collateral” as defined in the Pledge Agreement.

Post-Increase Revolving Lenders” has the meaning set forth in Section 2.12(d).

“Post-Refinancing Revolving Lenders” has the meaning set forth in Section 2.15(f).

 

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Pre-Increase Revolving Lenders” has the meaning set forth in Section 2.12(d).

Pre-Opening Expenses” shall mean, with respect to any fiscal period, the amount of expenses (including Consolidated Interest Expense) incurred with respect to capital projects which are appropriately classified as “pre-opening expenses” on the applicable financial statements of Borrower and its Subsidiaries for such period.

“Pre-Refinancing Revolving Lenders” has the meaning set forth in Section 2.15(f).

Prime Rate” shall mean the rate of interest per annum publicly announced from time to time by Deutsche Bank as its prime rate in effect at its office located at 60 Wall Street New York, NY 10005; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.

Principal BlockerCos” means PB Investor I LLC, a Delaware limited liability company, PB Investor II LLC, a Delaware limited liability company, Serengeti SC Blockerco LLC, a Delaware limited liability company, ADVSTRA SC Holdings, LLC, a Delaware limited liability company, CAPINC SC Holdings, LLC, a Delaware limited liability company, PAIN SC Holdings, LLC, a Delaware limited liability company, PRTN SC Holdings, LLC, a Delaware limited liability company, and STRAINC SC Holdings, LLC, a Delaware limited liability company.

Principal Office” shall mean the principal office of Administrative Agent, located on the ClosingSixth Amendment Effective Date at 60 Wall Street New York, NY 10005, or such other office as may be designated in writing by Administrative Agent.

Principal Subsidiaries” shall mean GVR, NP Lake Mead LLC, NP Santa Fe LLC, NP Texas LLC, Boulder LLC, Red Rock LLC, Palace LLC, Sunset LLC or IP Holdco or any other Restricted Subsidiary into which any portion of the assets (other than de minimis assets) of any of the foregoing entities are transferred on or after the ClosingSixth Amendment Effective Date (by Investment, disposition, merger, consolidation or otherwise).

Prior Mortgage Liens” shall mean, with respect to each Mortgaged Real Property, the Liens identified in Schedule B annexed to the applicable Mortgage as such Schedule B may be amended from time to time to the reasonable satisfaction of Administrative Agent.

Pro Forma Basis” shall mean, with respect to compliance with any test or covenant or calculation of any ratio hereunder, the determination or calculation of such test, covenant or ratio (including in connection with Specified Transactions) in accordance with Section 1.05.

Pro Rata Lead Arrangers” shall mean Merrill Lynch, Pierce, Fenner & Smith Incorporated (or any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement), JPMorgan Chase Bank, N.A., Deutsche Bank Securities Inc., Fifth Third Bank, Goldman Sachs Bank USA, Citigroup Global Markets Inc., Macquarie Capital (USA) Inc., Citizens Bank, N.A. and UBS Securities LLC, in their capacities as joint bookrunners and joint lead arrangers for the Term BClosing Date Revolving Facility and the Term A Facility (each as defined in this Agreement prior to giving effect to the Sixth Amendment).

Proceeding” shall mean any claim, counterclaim, action, judgment, suit, hearing, governmental investigation, arbitration or proceeding, including by or before any Governmental Authority and whether judicial or administrative.

Project Reimbursement Amount” shall mean, as of any date of determination, an amount equal to the Project Reimbursements received by the Borrower and its Restricted Subsidiaries from Persons other than Credit Parties from and after the ClosingSixth Amendment Effective Date minus (x) the amount of Investments made under Section 10.04(k)(ii) from and after the Sixth Amendment Effective Date and on or prior to such date, (y) the amount of Restricted Payments made under Section 10.06(i)(ii) from and after the Sixth Amendment Effective Date and on or prior to such date and (z) the amount of Junior Prepayments made under Section 10.09(a)(i)(ii) from and after the Sixth Amendment Effective Date and on or prior to such date.

 

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Project Reimbursements” means any amounts received by Borrower or any of Borrower’s Restricted Subsidiaries after the ClosingSixth Amendment Effective Date in repayment of any loan or advance made by it to the Federated Indians of Graton Rancheria, the North Fork Rancheria of Mono Indians or any other Tribe (or any instrumentality of any such Tribe) pursuant to any Native American Contract relating to a project and, for the avoidance of doubt, including any interest, earnings or other returns on such loan or advance paid by the applicable Tribe or instrumentality thereof.

Property” shall mean any right, title or interest in or to property or assets of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible and including all contract rights, income or revenue rights, real property interests, trademarks, trade names, equipment and proceeds of the foregoing and, with respect to any Person, Equity Interests or other ownership interests of any other Person.

“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

Public Lender” has the meaning set forth in Section 9.04.

Purchase Money Obligation” shall mean, for any Person, the obligations of such Person in respect of Indebtedness incurred for the purpose of financing all or any part of the purchase price of any Property (including Equity Interests of any Person) or the cost of installation, construction or improvement of any property or assets and any refinancing thereof; provided, however, that such Indebtedness is incurred (except in the case of a refinancing) within 270 days after such acquisition of such Property or the incurrence of such costs by such Person.

“QFC” shall have the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).

“QFC Credit Support” has the meaning set forth in Section 13.22.

Qualified Capital Stock” shall mean, with respect to any Person, any Equity Interests of such Person which is not Disqualified Capital Stock.

Qualified Contingent Obligation” shall mean Contingent Obligations permitted by Section 10.04 in respect of (a) Indebtedness of any Joint Venture in which Borrower or any of its Restricted Subsidiaries owns (directly or indirectly) at least 25% of the Equity Interest of such Joint Venture or (b) Indebtedness of casinos and “racinos” (and properties ancillary or related thereto (or owners of casino and “racinos”)) with respect to which Borrower or any of its Restricted Subsidiaries has (directly or indirectly through Subsidiaries) entered into a management or similar contract and such contract remains in full force and effect at the time such Contingent Obligations are incurred.

Qualified ECP Guarantor” means, in respect of any Swap Obligations, each Guarantor that has total assets exceeding $10,000,000 at the time the relevant Guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

Qualifying Investments” shall mean Investments made by Borrower and its Restricted Subsidiaries and either outstanding on the ClosingSixth Amendment Effective Date or made after the ClosingSixth Amendment Effective Date in accordance with Section 10.04 hereof, provided however, that Qualifying Investments shall exclude Investments in Cash and Cash Equivalents and any Investments made in or to the Federated Indians of the Graton Rancheria, the North Fork Rancheria of Mono Indians or any other Tribe or any instrumentality of any such Tribe.

Quarter” shall mean each three month period ending on March 31, June 30, September 30 and December 31.

 

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Quarterly Dates” shall mean the last Business Day of each Quarter in each year, commencing with the last Business Day of the first full Quarter after the Closing Date.

R/C Maturity Date” shall mean, (a) with respect to the Closing DateSixth Amendment Revolving Commitments and any Incremental Existing Tranche Revolving Commitments (other than, for the avoidance of doubt, Incremental Revolving Commitments that have been modified into Fifth Amendment Revolving Commitments)of the same Tranche and any Revolving Loans thereunder, the date that is the sixthfifth anniversary of the Closing Date,Sixth Amendment Effective Date and (b) with respect to the Fifth Amendment Revolving Commitments and any Revolving Loans thereunder, the earlier of (i) the date that is the seventh anniversary of the Closing Date and (ii) the date that is ninety-one (91) days prior to the earlier of (w) the maturity date of the Term B Facility Loans, (x) the maturity date of any New Term Loans that are “term B loans”, (y) the maturity date of any Permitted First Lien Indebtedness, Permitted Second Lien Indebtedness or Permitted Unsecured Indebtedness and (z) the maturity date of any Indebtedness incurred to refinance or extend any Indebtedness referred to in clauses (w), (x) and (y) and (c) with respect to any other Tranche of Revolving Commitments and Revolving Loans, the maturity date set forth therefor in the applicable Extension Amendment or Refinancing Amendment.

R/C Percentage” of any Revolving Lender at any time shall mean (a) with respect to the Total Revolving Commitments, a fraction (expressed as a percentage) the numerator of which is the Revolving Commitment of such Revolving Lender at such time and the denominator of which is the Total Revolving Commitments at such time or (b) as the context requires, with respect to a specified Revolving Commitment of a particular Tranche, a fraction (expressed as a percentage) the numerator of which is the Revolving Commitment of such Tranche of such Revolving Lender at such time and the denominator of which is the aggregate Revolving Commitments of such Tranche at such time; provided, however, that if the R/C Percentage of any Revolving Lender is to be determined after the Total Revolving Commitments or the Revolving Commitments of the applicable Tranche, as the case may be, have been terminated, then the R/C Percentage of such Revolving Lender shall be determined immediately prior (and without giving effect) to such termination but after giving effect to any assignments after termination of the Revolving Commitments.

Real Property” shall mean, as to any Person, all the right, title and interest of such Person in and to land, improvements and appurtenant fixtures, including leaseholds (it being understood that for purposes of Schedule 8.23(a), Borrower shall not be required to describe such improvements and appurtenant fixtures in such Schedule).

redeem” shall mean redeem, repurchase, repay, defease (covenant or legal), Discharge or otherwise acquire or retire for value; and “redemption” and “redeemed” have correlative meanings.

refinance” shall mean refinance, renew, extend, exchange, replace, defease (covenant or legal) (with proceeds of Indebtedness), Discharge (with proceeds of Indebtedness) or refund (with proceeds of Indebtedness), in whole or in part, including successively; and “refinancing” and “refinanced” have correlative meanings.

Refinancing Amendment” means an amendment to this Agreement in form and substance reasonably satisfactory to Administrative Agent and Borrower executed by each of (a) Borrower, (b) Administrative Agent, (c) each additional Lender and each existing Lender that agrees to provide any portion of the Credit Agreement Refinancing Indebtedness being incurred pursuant thereto, in accordance with Section 2.15.

Register” has the meaning set forth in Section 2.08(c).

Regulation D” shall mean Regulation D (12 C.F.R. Part 204) of the Board of Governors of the Federal Reserve System of the United States (or any successor), as the same may be amended, modified or supplemented and in effect from time to time and all official rulings and interpretations thereunder or thereof.

Regulation T” shall mean Regulation T (12 C.F.R. Part 220) of the Board of Governors of the Federal Reserve System of the United States (or any successor), as the same may be amended, modified or supplemented and in effect from time to time and all official rulings and interpretations thereunder or thereof.

 

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Regulation U” shall mean Regulation U (12 C.F.R. Part 221) of the Board of Governors of the Federal Reserve System of the United States (or any successor), as the same may be amended, modified or supplemented and in effect from time to time and all official rulings and interpretations thereunder or thereof.

Regulation X” shall mean Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal Reserve System of the United States (or any successor), as the same may be amended, modified or supplemented and in effect from time to time and all official rulings and interpretations thereunder or thereof.

Reimbursement Obligations” shall mean the obligations of Borrower to reimburse L/C Disbursements in respect of any Letter of Credit.

Related Indemnified Person” has the meaning set forth in Section 13.03(b).

Related Parties” shall mean, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.

Release” shall mean any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, emanating or migrating of any Hazardous Material in, into, onto or through the Environment.

“Relevant Governmental Body” means the Federal Reserve Board and/or the NYFRB, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto.

Removal Effective Date” has the meaning set forth in Section 12.06(b).

Replaced Lender” has the meaning set forth in Section 2.11(a).

Replacement Lender” has the meaning set forth in Section 2.11(a).

Replacement Vessel” shall mean the replacement of any existing Mortgaged Vessel with a vessel, ship, riverboat, barge or improvement on real property, whether such vessel, riverboat, barge or improvement is acquired or constructed and whether or not such vessel, ship, riverboat, barge or improvement is temporarily or permanently moored or affixed to any real property.

Repricing Transaction” shall mean (i) the incurrence by Borrower of a new tranche of replacement term loans under this Agreement (including by way of conversion of Term BB-1 Facility Loans into any such new tranche of replacement term loans) (x) having an effective interest rate margin for the respective Type of such replacement term loan that is less than the Applicable Margin for Term BB-1 Facility Loans of the respective Type (with the comparative determinations of such margins to be reasonably determined by Administrative Agent in consultation with Borrower (consistent with generally acceptable financial practices) and to be made after taking into account all interest rate floors and all upfront or similar fees or original issue discount (amortized assuming a 4-year life to maturity (or, if less, the stated life to maturity at the time of incurrence of the applicable Indebtedness) of such tranche of replacement term loans or Term BB-1 Facility Loans, as the case may be) payable to all Lenders holding such replacement term loans or Term BB-1 Facility Loans, as the case may be, but exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders (in their capacity as such) holding such tranche of replacement term loans or Term BB-1 Facility Loans, as the case may be, after giving effect to the syndication thereof) (excluding any such loans incurred in connection with a Change of Control or an Acquisition and any such loan that is not made for the primary purposes of reducing overall yield) and (y) the proceeds of which are used to repay, in whole or in part, principal of outstanding Term BB-1 Facility Loans (it being understood that a conversion of Term BB-1 Facility Loans into any such new tranche of replacement term loans shall constitute a repayment of principal of outstanding Term BB-1 Facility Loans), (ii) any amendment, waiver or other modification to this Agreement which would have the effect of reducing the Applicable Margin for Term BB-1 Facility Loans (with the determination of such effective reduction to be made in accordance with the applicable provisions set forth in the

 

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parenthetical appearing in preceding clause (i)(x)), excluding any such amendment, waiver or modification entered into in connection with a Change of Control or an Acquisition and/or (iii) the incurrence by Borrower or any of its Subsidiaries of (x) any Incremental Term Loans, (y) any other term loans (which, for the avoidance of doubt, does not include bonds) other than under this Agreement or (z) any other bank debt other than under this Agreement (such other term loans referred to in clause (y) above in this clause (iii) and such other bank debt referred to in clause (z) above in this clause (iii) are individually referred to as “Other Debt”), the proceeds of which are used in whole or in part to prepay outstanding Term BB-1 Facility Loans (except to the extent any such Incremental Term Loans or Other Debt is incurred in connection with a Change of Control or an Acquisition) if such Incremental Term Loans or Other Debt has an effective interest rate margin for the respective Type of such replacement term loan that is less than the Applicable Margin for Term BB-1 Facility Loans at the time of the prepayment thereof (with the comparative determination of such margins to be reasonably determined by Administrative Agent in consultation with Borrower (consistent with generally acceptable financial practices) taking into account all interest rate floors and all upfront or similar fees or original issue discount (amortized assuming a 4-year life to maturity (or, if less, the stated life to maturity at the time of incurrence of the applicable Indebtedness) of such Incremental Term Loans or Other Debt) payable to all lenders holding such Incremental Term Loans or Other Debt, as the case may be, but exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders (in their capacity as such) holding such Incremental Term Loans or Other Debt, as the case may be, after giving effect to the syndication thereof). Any such determination by Administrative Agent as contemplated by preceding clauses (i)(x), (ii) and (iii) shall be conclusive and binding on all Lenders holding or Term BB-1 Facility Loans.

Required Lenders” shall mean, as of any date of determination: (a) prior to the Closing Date, Lenders holding more than 50% of the aggregate amount of the Commitments; and (b) thereafter, Non-Defaulting Lenders the sum of whose outstanding Term Loans, unutilized Term Loan Commitments, Revolving Loans, Unutilized R/C Commitments, Swingline Exposure and L/C Liabilities then outstanding represents more than 50% of the aggregate sum (without duplication) of (i) all outstanding Term Loans of all Non-Defaulting Lenders and all unutilized Term Loan Commitments of all Non-Defaulting Lenders, (ii) all outstanding Revolving Loans of all Non-Defaulting Lenders, (iii) the aggregate Unutilized R/C Commitments of all Non-Defaulting Lenders, (iv) the Swingline Exposure of all Non-Defaulting Lenders and (v) the L/C Liabilities of all Non-Defaulting Lenders.

Required Pro Rata Lenders” shall mean, as of any date of determination: (a) prior to the Closing Date, Lenders holding more than 50% of the aggregate amount of the Revolving Commitments and the Term A Facility Commitments and (b) thereafter, Non-Defaulting Lenders holding more than 50% of the aggregate sum (without duplication) of the (a) (i) the aggregate Unutilized R/C Commitments of all Non-Defaulting Lenders, (ii) the aggregate outstanding Revolving Loans of all Non-Defaulting Lenders, (iii) the Swingline Exposure of all Non-Defaulting Lenders, (iv) the L/C Liabilities of all Non-Defaulting Lenders and (v) aggregate outstanding Term A Facility Loans, Term A-3 Facility Loans and Term A-45 Facility Loans held by Non-Defaulting Lenders.

Required Revolving Lenders” shall mean, as of any date of determination: (a) at any time prior to the Closing Date, Lenders holding more than 50% of the aggregate amount of the Revolving Commitments and (b) thereafter, Non-Defaulting Lenders holding more than 50% of the aggregate sum of (without duplication) (i) the aggregate principal amount of outstanding Revolving Loans of all Non-Defaulting Lenders, (ii) the aggregate Unutilized R/C Commitments of all Non-Defaulting Lenders, (iii) the Swingline Exposure of all Non-Defaulting Lenders, and (iv) the L/C Liabilities of all Non-Defaulting Lenders.

Required Tranche Lenders” shall mean: (a) with respect to Lenders having Revolving Commitments or Revolving Loans of any particular Tranche, Non-Defaulting Lenders having more than 50% of the aggregate sum of the Unutilized R/C Commitments, Revolving Loans, Swingline Exposure and L/C Liabilities, in each case, of Non-Defaulting Lenders in respect of such Tranche and then outstanding; (b) with respect to Lenders having Term AA-5 Facility Loans, Term AA-5 Facility Commitments or Incremental Term AA-5 Loan Commitments, Non-Defaulting Lenders having more than 50% of the aggregate sum of the Term AA-5 Facility Loans, unutilized Term AA-5 Facility Commitments and unutilized Incremental Term AA-5 Loan Commitments of the Non-Defaulting Lenders then outstanding; (c) with respect to Lenders having Term A-3 Facility Loans or Term A-3 Facility Commitments, Non-Defaulting Lenders having more than 50% of the aggregate sum of the Term A-3 Facility Loans and unutilized Term A-3 Facility Commitments of the Non-Defaulting Lenders then outstanding; (d) with respect to Lenders having Term A-4 Facility Loans or Term A-4 Facility Commitments, Non-Defaulting Lenders having more than 50% of the aggregate sum of the Term A-4 Facility Loans and unutilized Term A-4 Facility Commitments

 

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of the Non-Defaulting Lenders then outstanding; (e) with respect to Lenders having Term BB-1 Facility Loans, Term BB-1 Facility Commitments or Incremental Term BB-1 Loan Commitments, Non-Defaulting Lenders having more than 50% of the aggregate sum of the Term BB-1 Facility Loans, unutilized Term BB-1 Facility Commitments and unutilized Incremental Term BB-1 Loan Commitments of Non-Defaulting Lenders then outstanding; (fd) for each New Term Loan Facility, if applicable, with respect to Lenders having New Term Loans or New Term Loan Commitments, in each case, in respect of such New Term Loan Facility, Non-Defaulting Lenders having more than 50% of the aggregate sum of such New Term Loans and unutilized New Term Loan Commitments of Non-Defaulting Lenders then outstanding; (ge) for each Extension Tranche, if applicable, with respect to Lenders having Extended Revolving Loans or Extended Revolving Commitments or Extended Term Loans or commitments in respect of Extended Term Loans, in each case, in respect of such Extension Tranche, Non-Defaulting Lenders having more than 50% of the aggregate sum of such Extended Revolving Loans and Extended Revolving Commitments or Extended Term Loans and commitments in respect thereof, as applicable, then outstanding; and (hf) for each Tranche of Other Term Loans, Non-Defaulting Lenders having more than 50% of the aggregate sum of such Other Term Loans and unutilized Other Term Loan Commitments of Non-Defaulting Lenders then outstanding.

Requirement of Law” shall mean, as to any Person, any Law or determination of an arbitrator or any Governmental Authority, in each case applicable to or binding upon such Person or any of its Property or to which such Person or any of its Property is subject.

Reserve Requirement” shall mean, for any day during any Interest Period, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the Board of Governors of the Federal Reserve System of the United States for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to LIBOR funding by member banks (currently referred to as “Eurocurrency liabilities”). The LIBO Rate for each outstanding LIBOR Loan shall be adjusted automatically as of the effective date of any change in the Reserve Requirement.

Resignation Effective Date” has the meaning set forth in Section 12.06(a).

“Resolution Authority” shall mean an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

Response Action” shall mean (a) “response” as such term is defined in CERCLA, 42 U.S.C. § 9601(24), and (b) all other actions required by any Governmental Authority or voluntarily undertaken to: (i) clean up, remove, treat, abate or in any other way address any Hazardous Material in the Environment, (ii) prevent the Release or threatened Release, or minimize the further Release, of any Hazardous Material or (iii) perform studies and investigations in connection with, or as a precondition to, clause (i) or (ii) above.

Responsible Officer” shall mean (i) the chief executive officer of Borrower, the president of Borrower (if not the chief executive officer), any senior or executive vice president of Borrower, the chief financial officer, the chief accounting officer or treasurer of Borrower or, with respect to financial matters, the chief financial officer, the chief accounting officer, senior financial officer or treasurer of Borrower and (ii) as to any document delivered by a Subsidiary, any Person authorized by all necessary corporate, limited liability company and/or other action of such Subsidiary to act on behalf of such Subsidiary.

Restricted Payment” shall mean dividends (in cash, Property or obligations) on, or other payments or distributions (including return of capital) on account of, or the setting apart of money for a sinking or other analogous fund for, or the purchase, redemption, retirement, defeasance, termination, repurchase or other acquisition of, any Equity Interests or Equity Rights (other than any payment made relating to any Transfer Agreement) in any Holding Company, Borrower or any of its Restricted Subsidiaries or in an direct or indirect parent or other direct or indirect holder of Equity Interests or Equity Rights in Borrower, but excluding dividends, payments or distributions paid through the issuance of additional shares of Qualified Capital Stock and any redemption, retirement or exchange of any Qualified Capital Stock in Borrower or such Restricted Subsidiary through, or with the proceeds of, the issuance of Qualified Capital Stock in Borrower or any of its Restricted Subsidiaries; provided that any Qualified Capital Stock so issued is pledged to the Collateral Agent to secure the Obligations in accordance with the Collateral Documents.

 

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Restricted Subsidiaries” shall mean all existing and future Subsidiaries of Borrower other than the Unrestricted Subsidiaries.

Reverse Trigger Event” shall mean the transfer of Equity Interests of any Restricted Subsidiary or any Gaming Facility from trust or other similar arrangement to Borrower or any of its Restricted Subsidiaries from time to time.

Revocation” has the meaning set forth in Section 9.12(b).

“Revolving Availability Period” shall mean, (i) with respect to the Revolving Commitments under the Closing Date Revolving Facility, the period from and including the Closing Date to but excluding the earlier of the applicable R/C Maturity Date and the date of termination of such Revolving Commitments, (ii) with respect to the Revolving Commitments under the FifthSixth Amendment Revolving Facility, the period from and including the FifthSixth Amendment Effective Date to but excluding the earlier of the applicable R/C Maturity Date and the date of termination of such Revolving Commitments and (iiiiiwith respect to any other Tranche of Revolving Commitments, the period from and including the date such Tranche of Revolving Commitments is established to but excluding the earlier of the applicable R/C Maturity Date and the date of termination of such Tranche of Revolving Commitments. Unless the context otherwise requires, references in this Agreement to the Revolving Availability Period shall mean with respect to each Tranche of Revolving Commitments, the Revolving Availability Period applicable to such Tranche.

Revolving Borrowing” shall mean a Borrowing comprised of Revolving Loans.

“Revolving Commitment” shall mean, for each Revolving Lender, the obligation of such Lender to make Revolving Loans in an aggregate principal amount at any one time outstanding up to but not exceeding the amount set forth opposite the name of such Lender on Annex A-1 under the captionClosing Date Revolving Commitment” or “FifthSixth Amendment Revolving Commitment,” or in the Assignment Agreement pursuant to which such Lender assumed its Revolving Commitment or in any Incremental Joinder Agreement or Refinancing Amendment, as applicable, as the same may be (a) changed pursuant to Section 13.05(b), (b) reduced or terminated from time to time pursuant to Sections 2.04 and/or 11.01, as applicable, or (c) increased or otherwise adjusted from time to time in accordance with this Agreement, including pursuant to Section 2.12 and Section 2.15; it being understood that a Revolving Lender’s Revolving Commitment shall include any Incremental Revolving Commitments, Extended Revolving Commitments and Other Revolving Commitments of such Revolving Lender.

Revolving Exposure” shall mean, with respect to any Lender at any time, the aggregate principal amount at such time of all outstanding Revolving Loans of such Lender, plus the aggregate amount at such time of such Lender’s L/C Liability, plus the aggregate amount at such time of such Lender’s Swingline Exposure.

Revolving Extension Request” shall have the meaning provided in Section 2.13(b).

Revolving Facility” shall mean each credit facility comprising Revolving Commitments of a particular Tranche. For the avoidance of doubt, each of the Closing Date Revolving Facility and the Fifth Amendment Revolving Facility shall each constitute a separate Revolving Facility.

“Revolving Lenders” shall mean (a) on the FifthSixth Amendment Effective Date, the Lenders having a Revolving Commitment on Annex A-1 hereof and (b) thereafter, the Lenders from time to time holding Revolving Loans and/or a Revolving Commitment as in effect from time to time.

Revolving Loans” has the meaning set forth in Section 2.01(a).

Revolving Notes” shall mean the promissory notes substantially in the form of Exhibit A-1.

Revolving Tranche Exposure” shall mean with respect to any Lender and Tranche of Revolving Commitments at any time, the aggregate principal amount at such time of all outstanding Revolving Loans of such Tranche of such Lender, plus the aggregate amount at such time of such Lender’s L/C Liability under its Revolving Commitment of such Tranche, plus the aggregate amount at such time of such Lender’s Swingline Exposure under its Revolving Commitment of such Tranche.

 

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RRR” means Red Rock Resorts, Inc., a Delaware corporation.

S&P” shall mean Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, or any successor theretoS&P Global Ratings.

Sanction(s)” means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, (b) the United Nations Security Council, the European Union, or Her Majesty’s Treasury of the United Kingdom or (c) or other relevant sanctions authority.

“Sanctioned Country” means, at any time, a country, region or territory which is itself the subject or target of any comprehensive Sanctions (at the time of this AgreementSixth Amendment Effective Date, Crimea, Cuba, Iran, North Korea, Sudan and Syria).

Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the United Nations Security Council, the European Union, or Her Majesty’s Treasury of the United Kingdom, (b) any Person located, organized or resident in a Sanctioned Country or (c) any Person owned 50% or more or controlled by any such Person or Persons described in the foregoing clauses (a) or (b).

SEC” shall mean the Securities and Exchange Commission of the United States or any successor thereto.

“Second Amendment” shall mean that certain Second Amendment to Credit Agreement, dated as of April 5, 2017, by and among the Borrower, the other Station Parties party thereto, the Lenders party thereto and Deutsche Bank AG Cayman Islands Branch, as Swingline Lender and Administrative Agent.

“Second Amendment Effective Date” shall mean the “Effective Date” as defined in the Second Amendment.

Second Lien Intercreditor Agreement” shall mean an intercreditor agreement substantially in the form of Exhibit T hereto or such other form as is reasonably acceptable to Administrative Agent.

Section 9.04 Financials” shall mean the financial statements delivered, or required to be delivered, pursuant to Section 9.04(a) or (b), together with the accompanying certificate of a Responsible Officer of Borrower delivered, or required to be delivered, pursuant to Section 9.04(c).

Secured Cash Management Agreement” means any Cash Management Agreement that is entered into by and between Borrower and/or any or all of its Restricted Subsidiaries and any Cash Management Bank.

Secured Parties” shall mean the Agents, the Lenders, any Swap Provider that is party to a Credit Swap Contract and any Cash Management Bank that is a party to a Secured Cash Management Agreement.

Securities Act” shall mean the Securities Act of 1933, as amended, and all rules and regulations of the SEC promulgated thereunder.

Security Agreement” shall mean a security agreement substantially in the form of Exhibit H among the Credit Parties and Collateral Agent, as the same may be amended in accordance with the terms thereof and hereof.

Security Documents” shall mean the Security Agreement, the Pledge Agreement, the Custodian Agreement, the Mortgages, the Ship Mortgages and each other security document or pledge agreement, instrument or other document required by applicable local law or otherwise executed and delivered by a Credit Party, a Holding

 

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Company or RRR to grant or perfect a security interest in any Property acquired or developed that is of the kind and nature that would constitute Collateral on the Closing Date, and any other document, agreement or instrument utilized to pledge or grant as collateral (or perfect any Lien thereon) for the Obligations any Property of whatever kind or nature.

“Senior Unsecured Notes” shall mean the outstanding 7.505.00% senior unsecured notes due 20212025 of Borrower in the original aggregate principal amount of $500.0550.0 million.

“Senior Unsecured Notes Tax Transition” shall mean the effective date of the first to occur of: (i) the modification of Section 4.07(b)(14) of the Indenture dated as of March 1, 2013 entered into by Borrower, as issuer, in respect of the Senior Unsecured Notes (the “Senior Unsecured Notes Indenture”) to remove references to the “Holding Company Tax Distribution Agreement” and replace the same with an exception permitting Restricted Payments to Holdco in amounts sufficient to enable Holdco to make Tax Distributions (as defined in the Holdco LLC Agreement as in effect on the Closing Date) to its members pursuant to Section 5.4 of the Holdco LLC Agreement (as in effect on the Closing Date); and (ii) the termination, defeasance or discharge of (x) the Senior Unsecured Notes Indenture in its entirety or Section 4.07(b)(14) thereof in particular and (y) any Indebtedness refinancing such Senior Unsecured Notes (or such refinancing Indebtedness) that references the Holding Company Tax Sharing Agreement.

Ship Mortgage” shall mean a Ship Mortgage in form reasonably acceptable to Administrative Agent and Borrower made by the applicable Credit Parties in favor of Collateral Agent for the benefit of the Secured Parties, as the same may be amended in accordance with the terms thereof and hereof, or such other agreements reasonably acceptable to Collateral Agent as shall be necessary to comply with applicable Requirements of Law and effective to grant in favor of Collateral Agent for the benefit of the Secured Parties a first preferred mortgage on the Mortgaged Vessel covered thereby, subject only to Permitted Liens.

“Sixth Amendment” shall mean that certain Incremental Joinder Agreement No. 6 and Sixth Amendment to Credit Agreement, dated as of February 7, 2020, by and among the Borrower, the Guarantors party thereto, Holdco, RRR, the Sixth Amendment Incremental Revolving Facility Lenders party thereto, the L/C Lenders party thereto, the Sixth Amendment Extending Revolving Lenders party thereto, the Swingline Lender party thereto, the Sixth Amendment Extending Term A-4 Facility Lenders party thereto, the Sixth Amendment Extending Term B Facility Lenders party thereto and the Administrative Agent.

“Sixth Amendment Effective Date” has the meaning given to the term “Effective Date” in the Sixth Amendment.

“Sixth Amendment Extending Revolving Lender” has the meaning given to the term “Extending Revolving Lender” in the Sixth Amendment.

“Sixth Amendment Extending Term A-4 Facility Lender” has the meaning given to the term “Extending Term A-4 Facility Lender” in the Sixth Amendment.

“Sixth Amendment Extending Term B Facility Commitments” has the meaning given to the term “Term B-1 Facility Loan Commitments” in the Sixth Amendment.

“Sixth Amendment Extending Term B Facility Lender” has the meaning given to the term “Extending Term B Facility Lender” in the Sixth Amendment.

“Sixth Amendment Incremental Revolving Facility Commitments” has the meaning given to the term “Incremental Revolving Facility Commitments” in the Sixth Amendment.

“Sixth Amendment Incremental Revolving Facility Lender” has the meaning given to the term “Incremental Revolving Facility Lender” in the Sixth Amendment.

 

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“Sixth Amendment Incremental Revolving Facility Loans” has the meaning given to the term “Incremental Revolving Facility Loans” in the Sixth Amendment.

“Sixth Amendment Lead Arrangers” shall mean (a) Deutsche Bank Securities Inc., BNP Paribas Securities Corp., BofA Securities, Inc., Citigroup Global Markets Inc., Citizens Bank, N.A., Fifth Third Bank, Goldman Sachs Bank USA, JPMorgan Chase Bank, N.A., KeyBanc Capital Markets Inc., SunTrust Robinson Humphrey, Inc. and Wells Fargo Securities, LLC, in their capacities as joint bookrunners and joint lead arrangers for the Sixth Amendment Revolving Facility and the Term A-5 Facility and (b) JPMorgan Chase Bank, N.A., BNP Paribas Securities Corp., BofA Securities, Inc., Citigroup Global Markets Inc., Citizens Bank, N.A., Deutsche Bank Securities Inc., Fifth Third Bank, Goldman Sachs Bank USA, KeyBanc Capital Markets Inc., SunTrust Robinson Humphrey, Inc. and Wells Fargo Securities, LLC, in their capacities as joint bookrunners and joint lead arrangers for the Term B-1 Facility.

“Sixth Amendment Revolving Commitments” shall mean (a) the “Extending Revolving Commitments” under (and as defined in) the Sixth Amendment that are modified into Revolving Commitments having the terms set forth herein for the “Sixth Amendment Revolving Commitments” pursuant to the Sixth Amendment and (b) any Incremental Existing Tranche Revolving Commitments of the same Tranche. For the avoidance of doubt, the Sixth Amendment Revolving Commitments shall include the Sixth Amendment Incremental Revolving Facility Commitments.

“Sixth Amendment Revolving Facility” shall mean the credit facility comprising the Sixth Amendment Revolving Commitments and any Incremental Existing Tranche Revolving Commitments of the same Tranche.

SNDAs” shall have meaning provided in Section 8.24(e).

“SOFR” shall mean, with respect to any day, the secured overnight financing rate published for such day by the NYFRB, as the administrator of the benchmark (or a successor administrator), on the Federal Reserve Bank of New York’s Website.

“SOFR-Based Rate” shall mean SOFR, Compounded SOFR or Term SOFR.

Solvent” and “Solvency” shall mean, for any Person on a particular date, that on such date (a) the fair value of the Property of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person, (b) the present fair salable value of the Property of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts and liabilities beyond such Person’s ability to pay as such debts and liabilities mature, (d) such Person is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which such Person’s Property would constitute an unreasonably small capital and (e) such Person is able to pay its debts as they become due and payable. For purposes of this definition, the amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability, without duplication.

Specified 10.04(k) Investment Returns” shall mean the amounts other than Project Reimbursements received by Borrower and its Restricted Subsidiaries from and after the Sixth Amendment Effective Date with respect to Investments made pursuant to Section 10.04(k) (including with respect to contracts related to such Investments and including principal, dividends, interest, distributions, sale proceeds, payments under contracts relating to such Investments, repayments or other amounts) that are designated by Borrower as Specified 10.04(k) Investment Returns in the Compliance Certificate delivered to Administrative Agent in respect of the fiscal quarter (or fiscal year) in which such amounts were received.

Specified Transaction” means (a) any incurrence or repayment of Indebtedness (other than for working capital purposes or under a Revolving Facility), (b) any Investment that results in a Person becoming a Restricted Subsidiary or an Unrestricted Subsidiary, (c) any Permitted Acquisition or other Acquisition, (d) any Asset Sale or designation of a Restricted Subsidiary that results in a Restricted Subsidiary ceasing to be a Restricted Subsidiary of Borrower or redesignation of an Unrestricted Subsidiary that results in an Unrestricted Subsidiary becoming a Restricted Subsidiary and (e) any Acquisition or Investment constituting an acquisition of assets constituting a business unit, line of business or division of another Person.

 

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Stated Amount” of each Letter of Credit shall mean, at any time, the maximum amount available to be drawn thereunder (in each case determined without regard to whether any conditions to drawing could then be met).

Station Permitted Assignees” shall mean any Affiliate of any Credit Party (other than the Holding Companies, the Borrower and their respective Subsidiaries).

Subsidiary” shall mean, as to any Person, (i) any corporation more than 50% of whose stock of any class or classes having by the terms thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time owned by such Person and/or one or more Subsidiaries of such Person and (ii) any partnership, limited liability company, association, joint venture or other entity in which such Person and/or one or more Subsidiaries of such Person has more than a 50% equity interest at the time. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of Borrower.

Subsidiary Cost Allocation Agreement” shall mean each of (i) the LandCo Cost Allocation Agreement and (ii) each other cost allocation agreement entered into after the Closing Date between Borrower and an Unrestricted Subsidiary in the form of the Manager Allocation Agreement (with such changes as are reasonably requested by or are acceptable to Administrative Agent).

Subsidiary Tax Sharing Agreement” shall mean (1) the LandCo Holdings LLC Agreement, (2) the Fertitta Interactive Tax Sharing Agreement and (3) each tax sharing agreement between Borrower and an Unrestricted Subsidiary entered into after the Closing Date in accordance with this Agreement.

Subsidiary Tax Sharing Payments” shall mean (i) all payments received by Borrower from Unrestricted Subsidiaries pursuant to Subsidiary Tax Sharing Agreements and (ii) all payments received by Borrower from LandCo Holdings pursuant to Section 5.1(b) of the LandCo Holdings LLC Agreement.

Support Agreement” shall mean (a) the guaranty by Borrower or a Restricted Subsidiary of the completion of the development, construction and opening of a new gaming facility by any Native American Subsidiary pursuant to a Native American Contract or of any gaming facility owned by others which is to be managed exclusively by any such Native American Subsidiary pursuant to a Native American Contract and/or (b) the agreement by Borrower or a Restricted Subsidiary to advance funds, property or services to or on behalf of a Native American Subsidiary in order to maintain the financial condition or level of any balance sheet item of such Native American Subsidiary pursuant to a Native American Contract (including “keep well” or “make well” agreements) in connection with the development, construction and operations of a new gaming facility by such Native American Subsidiary pursuant to a Native American Contract (or of any gaming facility owned by others which is to be managed exclusively by such Native American Subsidiary pursuant to a Native American Contract); provided that such guaranty or agreement is entered into in connection with obtaining financing for such gaming facility or is required by a Governmental Authority. The amount of any Support Agreement shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Support Agreement is made (or, if less, the maximum amount of such primary obligation for which such Person may be liable pursuant to the terms of the instrument evidencing such Support Agreement) or, if not stated or determinable, the maximum reasonably anticipated potential liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.

“Supported QFC” has the meaning set forth in Section 13.22.

Swap Contract” shall mean any agreement entered into in the ordinary course of business (as a bona fide hedge and not for speculative purposes) (including any master agreement and any schedule or agreement, whether or not in writing, relating to any single transaction) that is an interest rate swap agreement, basis swap, forward rate agreement, commodity swap, commodity option, equity or equity index swap or option, bond option, interest rate

 

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option, foreign exchange agreement, rate cap, collar or floor agreement, currency swap agreement, cross-currency rate swap agreement, swap option, currency option or any other similar agreement (including any option to enter into any of the foregoing) and is designed to protect any Company against fluctuations in interest rates, currency exchange rates, commodity prices, or similar risks (including any Interest Rate Protection Agreement). For the avoidance of doubt, the term “Swap Contract” includes, without limitation, any call options, warrants and capped calls entered into as part of, or in connection with, an issuance of convertible or exchangeable debt by Borrower or its Restricted Subsidiaries.

Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.

Swap Provider” shall mean any Person that is a party to a Swap Contract with Borrower and/or any of its Restricted Subsidiaries if such Person was, at the date of entering into such Swap Contract, a Lender or Agent or Affiliate of a Lender or Agent, and such Person executes and delivers to Administrative Agent a letter agreement in form and substance reasonably acceptable to Administrative Agent pursuant to which such Person (a) appoints Collateral Agent as its agent under the applicable Credit Documents and (b) agrees to be bound by the provisions of Section 12.03.

Swingline Commitment” shall mean the commitment of the Swingline Lender to make loans pursuant to Section 2.01(e). The Swingline Commitment is part of, and not in addition to, the Revolving Commitments.

Swingline Exposure” shall mean at any time the aggregate principal amount at such time of all outstanding Swingline Loans. The Swingline Exposure of any Revolving Lender at any time shall equal its R/C Percentage of the aggregate Swingline Exposure at such time.

Swingline Lender” shall have the meaning assigned to such term in the preamble hereto.

Swingline Loan” shall mean any loan made by the Swingline Lender pursuant to Section 2.01(e).

Swingline Note” shall mean the promissory note substantially in the form of Exhibit A-4.

Swingline Sublimit” shall mean the lesser of (a) 25.0 million and (b) the Total Revolving Commitments then in effect. The Swingline Sublimit is part of, not in addition to, the Total Revolving Commitments.

Syndication Agents” shall mean JPMorgan Chase Bank, N.A., Bank of America, N.A., Deutsche Bank AG Cayman Islands Branch and Fifth Third Bank, in their capacities as syndication agents hereunder.

Taking” shall mean a taking or voluntary conveyance during the term of this Agreement of all or part of any Mortgaged Real Property or Mortgaged Vessel, or any interest therein or right accruing thereto or use thereof, as the result of, or in settlement of, any condemnation or other eminent domain proceeding by any Governmental Authority affecting any Mortgaged Real Property or Mortgaged Vessel or any portion thereof, whether or not the same shall have actually been commenced.

Tavern Business” shall mean a “restricted gaming location” as defined pursuant to Nevada Revised Statutes 463.0189.

Tax Benefit” has the meaning set forth in Section 5.06(g).

Tax Returns” has the meaning set forth in Section 8.08.

Taxes” shall mean any and all taxes, imposts, duties, charges, fees, levies or other charges or assessments of whatever nature, including income, gross receipts, excise, real or personal property, sales, withholding, social security, retirement, unemployment, occupation, use, service, license, net worth, payroll, franchise, and transfer and recording, imposed by the Internal Revenue Service or any taxing authority (whether domestic or foreign, including any federal, state, U.S. possession, county, local or foreign government or any subdivision or taxing agency thereof) including interest, fines, penalties or additions to tax attributable to or imposed on or with respect to any such taxes, charges, fees, levies or other assessments.

 

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Technology Systems” shall mean the computers, software, databases, systems (including reservations systems), servers, workstations, routers, hubs, switches, circuits, networks, Internet sites and all other information technology equipment (owned by Borrower or any Restricted Subsidiary).

“Term A Facility” shall mean the credit facility comprising the Term A Facility Commitments, any Incremental Term A Loan Commitments and the Term A Facility Loans.

“Term A Facility Commitment” shall mean, for each Term A Facility Lender, the obligation of such Lender to make a Term A Facility Loan in a principal amount not to exceed the amount set forth opposite the name of such Lender on Annex A-2 under the caption “Term A Facility Commitment,” or in the Assignment Agreement pursuant to which such Lender assumed its Term A Facility Commitment, as applicable, as the same may be (a) changed pursuant to Section 13.05(b) or (b) reduced or terminated from time to time pursuant to Section 2.04 or Section 11.01. The aggregate principal amount of the Term A Facility Commitments of all Term A Facility Lenders on the Closing Date is $225.0 million.

“Term A Facility Lenders” shall mean (a) on the Closing Date, the Lenders having Term A Facility Commitments on Annex A-2 hereof and (b) thereafter, the Lenders from time to time holding any Incremental Term A Loan Commitments and/or Term A Facility Loans, as the case may be, after giving effect to any assignments thereof permitted by Section 13.05(b).

“Term A Facility Loans” shall mean (a) collectively, term loans made pursuant to Section 2.01(b) and (b) term loans made pursuant to any Incremental Term A Loan Commitments.

“Term A Facility Maturity Date” shall mean the date that is the sixth anniversary of the Closing Date.

“Term A Facility Notes” shall mean the promissory notes substantially in the form of Exhibit A-2.

Term A-35 Facility” shall mean the credit facility comprising the Term A-35 Facility Commitments, any Incremental Term Loan Commitments having the same terms as the Term A-35 Facility Loans and the Term A-35 Facility Loans.

Term A-35 Facility Commitment” shall mean with respect to a Term A-3 Facility Lender, (a) the commitment of sucha Sixth Amendment Extending Term A-34 Facility Lender to makeunder the Sixth Amendment to modify all or a portion of its Term A-34 Facility Loans to the Borrower on the Third Amendment Effective Date and (b) the commitment of such Term A-3 Facility Lender to make Fourth Amendment Incremental Term A-3(as defined in this Agreement prior to giving effect to the Sixth Amendment) into Term A-5 Facility Loans to the Borrower on the FourthSixth Amendment Effective Date. The initial amount of each Sixth Amendment Extending Term A-34 Facility Lender’s Term A-35 Facility Commitment is the amount as set forth on such Term A-3 Facility Lender’s signature page to the ThirdSchedule B annexed to the Sixth Amendment or the Fourth Amendment, as applicable.

Term A-35 Facility Lenders” shall mean (a) on the FourthSixth Amendment Effective Date, after giving effect to the FourthSixth Amendment and the repayment of certainmodification of the “Extending Term A-34 Facility Loans and funding of Fourth” (as defined in the Sixth Amendment Incremental) of the Sixth Amendment Extending Term A-34 Facility Lenders into Term A-5 Facility Loans contemplated thereunder, the Lenders having Term A-35 Facility Loans as set forth on Annex A-32 hereof and (b) after the FourthSixth Amendment Effective Date, each Lender that holds a Term A-35 Facility Loan, after giving effect to any assignments thereof permitted by Section 13.05(b).

 

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“Term A-35 Facility Loans” shall mean (a) the “Extending Term A-4 Facility Loans” under (and as defined in) the Sixth Amendment that are modified into “Term A-5 Facility Loans” pursuant to the Sixth Amendment and (b) the term loans made by the Term A-3 Facility Lenders to the Borrower pursuant to Section 2.01(f) hereof or pursuant to any Incremental Term Loan Commitments having the same terms as the Term A-35 Facility Loans. The aggregate outstanding amount of the Term A-5 Facility Loans on the Sixth Amendment Effective Date after giving effect to the Sixth Amendment is $188,945,328.73.

“Term A-5 Facility Maturity Date” shall mean the date that is the fifth anniversary of the Sixth Amendment Effective Date.

“Term A-5 Facility Notes” shall mean the promissory notes substantially in the form of Exhibit A-2.

“Term B Lead Arrangers” shall mean JPMorgan Chase Bank, N.A., Merrill Lynch, Pierce, Fenner & Smith Incorporated (or any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement), Deutsche Bank Securities Inc., Fifth Third Bank, Goldman Sachs Bank USA, Citigroup Global Markets Inc., Macquarie Capital (USA) Inc., Citizens Bank, N.A. and UBS Securities LLC, in their capacities as joint bookrunners and joint lead arrangers for the Term B Facility (as defined in this Agreement prior to giving effect to the Sixth Amendment).

Term A-4B-1 Facility” shall mean the credit facility comprising the Term A-4B-1 Facility Commitments, any Incremental Term Loan Commitments having the same terms as the Term A-4B-1 Facility Loans and the Term A-4B-1 Facility Loans.

Term A-4B-1 Facility Commitment” shall mean with respect to a Lender, the commitment of a FifthSixth Amendment Extending Term A-3B Facility Lender under the FifthSixth Amendment to modify all or a portion of itsprovide its Sixth Amendment Extending Term A-3B Facility Loans into Term A-4 Facility Loans on the FifthCommitments on the Sixth Amendment Effective Date. The initial amount of each FifthSixth Amendment Extending Term A-3B Facility Lender’s Term A-4B-1 Facility Commitment is the amount as set forth on Schedule BD annexed to the FifthSixth Amendment.

Term A-4B-1 Facility Lenders” shall mean (a) on the FifthSixth Amendment Effective Date, after giving effect to the FifthSixth Amendment and the modificationfunding of the “Extending Term A-3B-1 Facility Loans” (as defined in the Fifth Amendment) of the Fifth Amendment Extending Term A-3 Facility Lenders into Term A-4 Facility Loans contemplated thereunder, the Lenders having Term A-4B-1 Facility Loans as set forth on Annex A-43 hereof and (b) after the FifthSixth Amendment Effective Date, each Lender that holds a Term A-4B-1 Facility Loan, after giving effect to any assignments thereof permitted by Section 13.05(b).

Term A-4B-1 Facility Loans” shall mean (a) the “Extending Term A-3 Facility Loans” under (and as defined in) the Fifth Amendment that are modified into Extended Term Loans pursuant to the Fifthterm loans made by the Term B-1 Facility Lenders pursuant to Section 2.01(i) on the Sixth Amendment Effective Date and (b) the term loans made pursuant to any Incremental Term Loan Commitments having the same terms as the Term A-4B-1 Facility Loans. The aggregate outstanding amount of the Term B-1 Facility Loans on the Sixth Amendment Effective Date after giving effect to the Sixth Amendment is $1,533,174,118.

“Term A-4 Facility Maturity Date” shall mean the earlier of (i) the date that is the seventh anniversary of the Closing Date and (ii) the date that is ninety-one (91) days prior to the earlier of (w) the maturity date of the Term B Facility Loans, (x) the maturity date of any New Term Loans that are “term B loans”, (y) the maturity date of any Permitted First Lien Indebtedness, Permitted Second Lien Indebtedness or Permitted Unsecured Indebtedness and (z) the maturity date of any Indebtedness incurred to refinance or extend any Indebtedness referred to in clauses (w), (x) and (y).

“Term B Facility” shall mean the credit facility comprising the Term B Facility Commitments, any Incremental Term B Loan Commitments and the Term B Facility Loans.

 

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“Term B Facility Commitment” shall mean, for each Term B Facility Lender, the obligation of such Lender, if any, to make a Term B Facility Loan to Borrower on the Closing Date in a principal amount not to exceed the amount set forth opposite such Lender’s name under the heading “Term B Facility Commitment” on Annex A-5, or in the Assignment Agreement pursuant to which such Lender assumed its Term B Facility Commitment, as applicable, as the same may be (i) changed pursuant to Section 13.05(b) or (ii) reduced or terminated from time to time pursuant to Section 2.04 or Section 11.01. The aggregate principal amount of the Term B Facility Commitments of all Term B Facility Lenders on the Closing Date is $1,500.0 million.

“Term B Facility Lenders” shall mean (a) on the Closing Date, the Lenders having Term B Facility Commitments on Annex A-5 hereof and (b) thereafter, the Lenders from time to time holding any Incremental Term B Loan Commitments and/or Term B Facility Loans, as the case may be, after giving effect to any assignments thereof permitted by Section 13.05(b).

“Term B Facility Loans” shall mean (a) the term loans made pursuant to Section 2.01(c) and (b) term loans made pursuant to any Incremental Term B Loan Commitments.

Term BB-1 Facility Maturity Date” shall mean the date that is the seventh anniversary of the ClosingSixth Amendment Effective Date.

Term BB-1 Facility Notes” shall mean the promissory notes substantially in the form of Exhibit A-3.

“Term B Lead Arrangers” shall mean JPMorgan Chase Bank, N.A., Merrill Lynch, Pierce, Fenner & Smith Incorporated (or any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement), Deutsche Bank Securities Inc., Fifth Third Bank, Goldman Sachs Bank USA, Citigroup Global Markets Inc., Macquarie Capital (USA) Inc., Citizens Bank, N.A. and UBS Securities LLC, in their capacities as joint bookrunners and joint lead arrangers for the Term B Facility.

Term Facilities” shall mean, collectively, the credit facilities comprising the Term AA-5 Facility, the Term A-3B-1 Facility, the Term A-4 Facility, the Term B Facility, any New Term Loan Facilities, the credit facilities comprising the Extended Term Loans, if any, and the credit facilities comprising Other Term Loans, if any.

Term Loan Commitments” shall mean, collectively, (a) the Term AA-5 Facility Commitments, (b) the Term A-3B-1 Facility Commitments, (c) the Term A-4 Facility Commitments, (d) the Term B Facility Commitments, (e) any Incremental Term Loan Commitments and (fd) any Other Term Loan Commitments.

Term Loan Extension Request” shall have the meaning provided in Section 2.13(a).

Term Loan Notes” shall mean, collectively, the Term AA-5 Facility Notes, the Term BB-1 Facility Notes and any New Term Loan Notes.

Term Loans” shall mean, collectively, the Term AA-5 Facility Loans, the Term A-3B-1 Facility Loans, the Term A-4 Facility Loans, the Term B Facility Loans, any Extended Term Loans, any Other Term Loans and any New Term Loans.

“Term SOFR” means the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.

“Terminated Lender” has the meaning set forth in Section 2.11(a).

Test Period” shall mean, for any date of determination, the period of the four most recently ended consecutive fiscal quarters of Borrower and its Restricted Subsidiaries for which quarterly or annual financial statements have been delivered or are required to have been delivered to Administrative Agent or have been filed with the SEC.

 

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Third Amendment Refinancing Arranger” shall mean Deutsche Bank Securities Inc., as lead arranger and bookrunner in connection with that certain Incremental Joinder Agreement No. 2 and Third Amendment to Credit Agreement, dated as of May 2, 2017, by and among the Borrower, the Guarantors party thereto, Holdco, RRR, the Term A-3 Facility Lenders party thereto, the Incremental Term A-3 Lenders (as defined therein) party thereto and the Administrative Agent.

“Third Amendment Effective Date” has the meaning given to the term “Effective Date” in the Third Amendment.

“Third Amendment Refinancing Arranger” shall mean Deutsche Bank Securities Inc., as lead arranger and bookrunner in connection with the Third Amendment.

Total Revolving Commitments” shall mean, at any time, the Revolving Commitments of all the Revolving Lenders at such time. The Total Revolving Commitments on the FifthSixth Amendment Effective Date are $896.0 million1,031,054,671.27, comprised entirely of Sixth Amendment Revolving Commitments.

Trade Date” shall have the meaning provided in Section 13.05(k)(i).

Tranche” shall mean (i) when used with respect to the Lenders, each of the following classes of Lenders: (a) Lenders having Revolving Loans incurred pursuant to the Closing DateSixth Amendment Revolving Commitment or any Incremental Existing Tranche Revolving Commitments or Closing Dateof the same Tranche or Sixth Amendment Revolving Commitments and any Incremental Existing Tranche Revolving Commitments of the same Tranche, (b) Lenders having Revolving Loans incurred pursuant to the Fifth Amendment Revolving Commitment or Fifth Amendment Revolving Commitments, (c) Lenders having such other Tranche of Revolving Loans or Revolving Commitments created pursuant to an Incremental Joinder Agreement, Extension Amendment or Refinancing Amendment, (c) Lenders having Term A-5 Facility Loans, Term A-5 Facility Commitments and Incremental Term A-5 Loan Commitments, (d) Lenders having Term AB-1 Facility Loans or Term AB-1 Facility Commitments and Incremental Term A Loan Commitments, (e) Lenders having Term A-3 Facility Loans or Term A-3 Facility Commitments, (f) Lenders having Term A-4 Facility Loans or Term A-4 Facility Commitments, (g) Lenders having Term B Facility Loans or Term B Facility Commitments and Incremental Term BB-1 Loan Commitments and (he) Lenders having such other Tranche of Term Loans or Term Loan Commitments created pursuant to an Extension Amendment, Incremental Joinder Agreement or Refinancing Amendment, and (ii) when used with respect to Loans or Commitments, each of the following classes of Loans or Commitments: (a) Revolving Loans incurred pursuant to the Closing Date Revolving Commitment or any Incremental Revolving Commitments or Closing Date Revolving Commitments and any Incremental Revolving Commitments, (b) Revolving Loans incurred pursuant to the FifthSixth Amendment Revolving Commitments or Fifthany Incremental Existing Tranche Revolving Commitments of the same Tranche or Sixth Amendment Revolving Commitments and any Incremental Existing Tranche Revolving Commitments of the same Tranche, (cb) such other Tranche of Revolving Loans or Revolving Commitments created pursuant to an Incremental Joinder Agreement, Extension Amendment or Refinancing Amendment, (dc) Term AA-5 Facility Loans or Term AA-5 Facility Commitments and Incremental Term AA-5 Loan Commitments, (ed) Term A-3B-1 Facility Loans or Term A-3 Facility Commitments, (f) Term A-4 Facility Loans or Term A-4 Facility Commitments, (g) Term B Facility Loans or Term BB-1 Facility Commitments and Incremental Term BB-1 Loan Commitments and (he) such other Tranche of Term Loans or Term Loan Commitments created pursuant to an Extension Amendment, Incremental Joinder Agreement or Refinancing Amendment. Additionally, the Administrative Agent shall be permitted to establish separate sub-tranches of Loans and Commitments for administrative purposes for the sole purpose of determining the amount of interest and/or fees due on Loans or Commitments held by particular Lenders (including the sub-tranches of the Term A Facility Loans established pursuant to the Second Amendment); provided that any such separate sub-tranches shall constitute part of the same Tranche from which it was derived for all other purposes under the Credit Documents, including the pro rata payment of interest, principal and other amounts.

Transactions” shall mean, collectively, (a) the Closing Date Refinancing, (b) the entering into of this Agreement and the other Credit Documents and the borrowings hereunder on the Closing Date and (c) the payment of fees and expenses in connection with the foregoing.

 

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Transfer Agreement” shall mean any trust or similar arrangement required by any Gaming Authority from time to time with respect to the Equity Interests of any Restricted Subsidiary (or any Person that was a Restricted Subsidiary) or any Gaming Facility.

Tribal Gaming Opening Date” means the date on which the casino being constructed by a Tribe party to a Tribal Management Agreement opens for business.

Tribal Management Agreements” means, collectively, (i) the Amended and Restated Gaming Management Agreement, dated as of July 27, 2012, between the Federated Indians of Graton Rancheria, the Graton Economic Development Authority and SC Sonoma Management, LLC, a California limited liability company, (ii) the Amended and Restated Non-Gaming Management Agreement, dated as of August 6, 2012, between the Federated Indians of Graton Rancheria, the Graton Economic Development Authority and NP Sonoma Land Holdings LLC, a California limited liability company, and (iii) any other management agreement entered into between a Tribe (or an instrumentality thereof) and Borrower or a Restricted Subsidiary pursuant to which Borrower or such Restricted Subsidiary manages the gaming operations of such Tribe.

Tribal Management Fees” means all management fees received by Borrower or its Restricted Subsidiaries under the Tribal Management Agreements.

Tribal Trust Propertyhas the meaning specified in the definition ofshall mean a Real Property that is (a) not owned by Borrower or any Restricted Subsidiary on the Sixth Amendment Effective Date, (b) undeveloped or underdeveloped (and, for the avoidance of doubt, shall not have any gaming operations) on the date such Real Property is acquired by Borrower or any Restricted Subsidiary and (c) designated as a “Tribal Trust Property Release Conditions”” by written notice from Borrower to the Administrative Agent within ten (10) Business Days after the acquisition thereof.

Tribal Trust Property Release Conditions meansshall mean, in the event that title to a Realany Tribal Trust Property is to be conveyed to the United States of America in trust for a Tribe pursuant to a Native American Contract (a “Tribal Trust Property”), the satisfaction of each of the following conditions:

 

  (i)

such transfer to the United States of America in trust for a Tribe must (1) be in furtherance of a Native American Contract that has been fully executed by each party thereto and is in effect (but may be subject to the receipt of approvals from Governmental Authorities which Borrower reasonably expects to be obtained) at the time of such transfer and (2) not constitute a commercial sale of such Tribal Trust Property;

 

  (ii)

(i) not less than three (3) days prior to the desired release date, Borrower shall have given to the Administrative Agent a written request for the release accompanied, if such Real Property is a Mortgaged Real Property, by a release of Lien for the applicable Mortgaged Real Property for execution by the Administrative Agent (or Collateral Agent at the direction of Administrative Agent), which release document shall be in a form appropriate in the applicable state and otherwise reasonably satisfactory to the Administrative Agent;

 

  (iii)

(ii) title to the Tribal Trust Property shall be simultaneously conveyed to the United States of America in trust for the relevant Tribe; and

 

  (iv)

(iii) simultaneously with such transfer to the United States of America in trust for the relevant Tribe, Borrower shall cause the Administrative Agent or Collateral Agent, as applicable, to receive for the benefit of the Secured Parties, such documentation as is provided for in the applicable Native American Contract evidencing the obligation of the relevant Tribe to pay the agreed consideration for such Tribal Trust Property as is provided for in such Native American Contract and pledged to Collateral Agent pursuant to the Security Agreement.

Tribe” means a Native American tribe, band or other form of government which is federally recognized as an Indian Tribe pursuant to a determination of the Secretary of the Interior, and as an Indian Tribal government pursuant to Sections 7701(a)(40)(A) and 7871(a) of the Internal Revenue Code, Title 26 U.S.C., and/or its agencies and instrumentalities.

 

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Trigger Event” shall mean the transfer of shares of Equity Interests of any Restricted Subsidiary or any Gaming Facility into trust or other similar arrangement required by any Gaming Authority from time to time.

Type” has the meaning set forth in Section 1.03.

U.S. Person” shall mean a “United States person” as defined in Section 7701(a)(30) of the Code.

“U.S. Special Resolution Regime” has the meaning set forth in Section 13.22.

UCC” shall mean the Uniform Commercial Code as from time to time in effect in the applicable state or other jurisdiction.

UCP” means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce (“ICC”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).

“UK Financial Institution” shall mean any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

“UK Resolution Authority” shall mean the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

un-reallocated portion” has the meaning set forth in Section 2.14(a).

“Unadjusted Benchmark Replacement” shall mean the Benchmark Replacement excluding the Benchmark Replacement Adjustment; provided that, if the Unadjusted Benchmark Replacement as so determined would be less than zero, the Unadjusted Benchmark Replacement will be deemed to be zero for the purposes of this Agreement.

Unaffiliated Joint Ventures” shall mean any joint venture of Borrower or any of its Subsidiaries; provided, however, that (i) all Investments in, and other transactions entered into with, such joint venture by Borrower or any of its Restricted Subsidiaries were made in compliance with this Agreement and (ii) no Affiliate (other than Borrower or any Subsidiary or any other Unaffiliated Joint Venture) or officer or director of Borrower or any of its Subsidiaries owns any Equity Interest, or has any material economic interest, in such joint venture (other than through Borrower (directly or indirectly through its Subsidiaries)). No Subsidiary of Borrower shall be an Unaffiliated Joint Venture.

United States” shall mean the United States of America.

Unreimbursed Amount” has the meaning set forth in Section 2.03(e).

Unrestricted Cash” shall mean the aggregate amount of unrestricted cash and Cash Equivalents (in each case free and clear of all Liens, other than Permitted Liens that (i) do not restrict the application of such cash and Cash Equivalents to the repayment of the Obligations or (ii) secure the Obligations) of Borrower and its Restricted Subsidiaries as at such date not to exceed $400.0 million.

Unrestricted Subsidiaries” shall mean (a) as of the ClosingSixth Amendment Effective Date, the Subsidiaries listed on Schedule 8.12(c), (b) any Subsidiary of Borrower designated as an “Unrestricted Subsidiary” after the Sixth Amendment Effective Date pursuant to and in compliance with Section 9.12 and (c) any Subsidiary of an Unrestricted Subsidiary (in each case, unless such Subsidiary is no longer a Subsidiary of Borrower or is subsequently designated as a Restricted Subsidiary pursuant to this Agreement).

 

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Unutilized R/C Commitment” shall mean, for any Revolving Lender with respect to all Revolving Commitments or any Tranche(s) of Revolving Commitments, as the context requires, at any time, the excess of such Revolving Lender’s Revolving Commitment under all Revolving Commitments or any particular Tranche(s) of Revolving Commitments at such time over the sum of (i) the aggregate outstanding principal amount of all Revolving Loans made by such Revolving Lender under all Revolving Commitments or such Tranche(s) of Revolving Commitments, as applicable, (ii) such Revolving Lender’s L/C Liability at such time and (iii) such Revolving Lender’s Swingline Exposure at such time.

Vessel” shall mean a gaming vessel, barge or riverboat and the fixtures and equipment located thereon.

VoteCo SPE” shall mean the entity that is identified to the Administrative Agent by Borrower in connection with the VoteCo SPE Reorganization as the holder of all of the Voting Stock in Borrower.

VoteCo SPE Assignment Agreement” has the meaning set forth in Section 9.10.

VoteCo SPE Pledge Joinder” has the meaning set forth in Section 9.10.

VoteCo SPE Reorganization” shall mean the formation of the VoteCo SPE and the transfer of all of the Voting Stock in Borrower to the VoteCo SPE.

VoteCo SPE Reorganization Date” shall mean the date that the VoteCo SPE Reorganization occurs.

Voting Stock” shall mean, with respect to any Person, the Equity Interests, participations, rights in, or other equivalents of, such Equity Interests, and any and all rights, warrants or options exchangeable for or convertible into such Equity Interests of such Person, in each case, that ordinarily has voting power for the election of directors (or Persons performing similar functions) of such Person, whether at all times or only as long as no senior class of Equity Interests has such voting power by reason of any contingency.

Weighted Average Life to Maturity” shall mean, on any date and with respect to the aggregate amount of the Term Loans (or any applicable portion thereof), an amount equal to (a) the scheduled repayments of such Term Loans to be made after such date, multiplied by the number of days from such date to the date of such scheduled repayments divided by (b) the aggregate principal amount of such Term Loans.

“Wells Fargo Indemnification Agreement” means that certain letter agreement relating to the “Assumption of Liability by Post-Bankruptcy Entity for Pre-Bankruptcy Deposit Accounts”, by and between Wells Fargo Bank, N.A., Borrower and the Restricted Subsidiaries party thereto and others (as in effect on the June 16, 2011 and as amended, supplemented or otherwise modified from time to time but without giving effect to any modification thereto that is adverse to the interests of the Lenders in any material respect without the prior consent of the Administrative Agent).

Wholly Owned Subsidiary” shall mean, with respect to any Person, any corporation, partnership, limited liability company or other entity of which all of the Equity Interests (other than, in the case of a corporation, directors’ qualifying shares or nominee shares required under applicable law) are directly or indirectly owned or controlled by such Person and/or one or more Wholly Owned Subsidiaries of such Person. Unless the context clearly requires otherwise, all references to any Wholly Owned Subsidiary shall mean a Wholly Owned Subsidiary of Borrower.

Withdrawal Liability” shall mean liability by an ERISA Entity to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part 1 of Subtitle E of Title IV of ERISA.

 

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Working Capital” shall mean, for any Person at any date, the amount (which may be a negative number) of the Consolidated Current Assets of such Person minus the Consolidated Current Liabilities of such Person at such date; provided that, for purposes of calculating Working Capital, increases or decreases in Working Capital shall be calculated without regard to any changes in Consolidated Current Assets or Consolidated Current Liabilities as a result of (a) any reclassification in accordance with GAAP of assets or liabilities, as applicable, between current and noncurrent, (b) the effects of purchase accounting or (c) the impact of non-cash items on Consolidated Current Assets and Consolidated Current Liabilities. For purposes of calculating Working Capital (i) for any period in which a Permitted Acquisition or other Acquisition, or the opening of a Development Project or Expansion Capital Expenditure, occurs (other than with respect to any Unrestricted Subsidiary) or any Unrestricted Subsidiary is revoked and converted into a Restricted Subsidiary, the “consolidated current assets” and “consolidated current liabilities” of any Person, property, business or asset so acquired, of any Person that owns or leases such Development Project or Expansion Capital Expenditure (to the extent related to such Development Project or Expansion Capital Expenditure), or of any Unrestricted Subsidiary so revoked, as the case may be (determined on a basis consistent with the corresponding definitions herein, with appropriate reference changes) shall be excluded and (ii) for any period in which any Person, property, business or asset (other than an Unrestricted Subsidiary) is sold, transferred or otherwise disposed of, closed or classified as discontinued operations by Borrower or any Restricted Subsidiary or any Restricted Subsidiary is designated as an Unrestricted Subsidiary, the “consolidated current assets” and “consolidated current liabilities” of any Person, property, business or asset so sold, transferred or otherwise disposed of, closed or classified as discontinued operations or Restricted Subsidiary so designated, as the case may be (determined on a basis consistent with the corresponding definitions herein, with appropriate reference changes) shall be excluded.

Write-Down and Conversion Powers means,shall mean, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule., and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

SECTION 1.02.    Accounting Terms and Determinations. Except as otherwise provided in this Agreement (including in the definitions of “Capital Lease” and “Capital Lease Obligations”), all computations and determinations as to accounting or financial matters (including financial covenants) shall be made in accordance with GAAP as in effect on the ClosingSixth Amendment Effective Date consistently applied for all applicable periods, and all accounting or financial terms shall have the meanings ascribed to such terms by GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Credit Document, and Borrower notifies Administrative Agent that Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof inSixth Amendment Effective Date in GAAP or in the application thereof on the operation of such provision (or if Administrative Agent notifies Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Credit Document, and Borrower, Administrative Agent or the Required Lenders shall so request, Administrative Agent, the Lenders and Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders, not to be unreasonably withheld).

SECTION 1.03.    Classes and Types of Loans. Loans hereunder are distinguished by “Class” and by “Type.” The “Class” of a Loan (or of a Commitment to make a Loan) refers to whether such Loan is a Revolving Loan of any particular Tranche, a Term AA-5 Facility Loan, a Term A-3B-1 Facility Loan, a Term A-4 Facility Loan, a Term B Facility Loan, a New Term Loan of any particular Tranche, or a Term Loan of any particular Tranche of Term Loans created pursuant to an Extension Amendment or a Refinancing Amendment or a Swingline Loan, each of which constitutes a Class. The “Type” of a Loan refers to whether such Loan is an ABR Loan or a LIBOR Loan, each of which constitutes a Type. Loans may be identified by both Class and Type.

 

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SECTION 1.04.     Rules of Construction.

(a)         In each Credit Document, unless the context clearly requires otherwise (or such other Credit Document clearly provides otherwise), references to (i) the plural include the singular, the singular include the plural and the part include the whole; (ii) Persons include their respective permitted successors and assigns or, in the case of governmental Persons, Persons succeeding to the relevant functions of such Persons; (iii) statutes and regulations include any amendments, supplements or modifications of the same from time to time and any successor statutes and regulations; (iv) unless otherwise expressly provided, any reference to any action of any Secured Party by way of consent, approval or waiver shall be deemed modified by the phrase “in its/their reasonable discretion”; (v) time shall be a reference to time of day in New York, New York; (vi) Obligations (other than L/C Liabilities) shall not be deemed “outstanding” if such Obligations have been Paid in Full; and (vii) except as expressly provided in any Credit Document any item required to be delivered or performed on a day that is not a Business Day shall not be required until the next succeeding Business Day.

(b)         In each Credit Document, unless the context clearly requires otherwise (or such other Credit Document clearly provides otherwise), (i) “amend” shall mean “amend, restate, amend and restate, supplement or modify”; and “amended,” “amending” and “amendment” shall have meanings correlative to the foregoing; (ii) in the computation of periods of time from a specified date to a later specified date, “from” shall mean “from and including”; “to” and “until” shall mean “to but excluding”; and “through” shall mean “to and including”; (iii) “hereof,” “herein” and “hereunder” (and similar terms) in any Credit Document refer to such Credit Document as a whole and not to any particular provision of such Credit Document; (iv) “including” (and similar terms) shall mean “including without limitation” (and similarly for similar terms); (v) “or” has the inclusive meaning represented by the phrase “and/or”; (vi) references to “the date hereof” shall mean the date first set forth above; (vii) asset” and “property” shall have the same meaning and effect and refer to all Property; and (viiivii) a “fiscal year” or a “fiscal quarter” is a reference to a fiscal year or fiscal quarter of Borrower.

(c)         In this Agreement unless the context clearly requires otherwise, any reference to (i) an Annex, Exhibit or Schedule is to an Annex, Exhibit or Schedule, as the case may be, attached to this Agreement and constituting a part hereof, and (ii) a Section or other subdivision is to a Section or such other subdivision of this Agreement.

(d)         Unless otherwise expressly provided herein, (i) references to Organizational Documents, agreements (including the Credit Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, amendments and restatements, extensions, supplements, reaffirmations and other modifications thereto, but only to the extent that such amendments, restatements, amendments and restatements, extensions, supplements, reaffirmations and other modifications are permitted by the Credit Documents; and (ii) references to any Requirement of Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Requirement of Law, and (iii) for the avoidance of doubt, any reference herein to “the date hereof” or words of similar import shall refer to the date that the Credit Agreement was initially entered into (June 8, 2016).

(e)         This Agreement and the other Credit Documents are the result of negotiations among and have been reviewed by counsel to Agents, Borrower and the other parties, and are the products of all parties. Accordingly, they shall not be construed against the Lenders or Agents merely because of Agents’ or the Lenders’ involvement in their preparation.

SECTION 1.05.     Pro Forma Calculations.

(a)         Notwithstanding anything to the contrary herein, the Consolidated Total Leverage Ratio, the Consolidated First Lien Leverage Ratio and the Interest Coverage Ratio shall be calculated in the manner prescribed by this Section 1.05; provided that notwithstanding anything to the contrary in clauses (b), (c) or (d) of this Section 1.05, when calculating the Consolidated Total Leverage Ratio and the Interest Coverage Ratio, as applicable, for purposes of determining actual compliance (and not compliance on a Pro Forma Basis) with any covenant pursuant to Section 10.08, the events described in this Section 1.05 that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect.

 

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(b)         For purposes of calculating the Consolidated Total Leverage Ratio, the Consolidated First Lien Leverage Ratio and the Interest Coverage Ratio, Specified Transactions (and the incurrence or repayment of any Indebtedness in connection therewith) that have been made (i) during the applicable Test Period and (ii) subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period. If, since the beginning of any applicable Test Period, any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.05, then the Consolidated Total Leverage Ratio, the Consolidated First Lien Leverage Ratio and the Interest Coverage Ratio shall be calculated to give pro forma effect thereto in accordance with this Section 1.05.

(c)         Whenever pro forma effect is to be given to the Transactions or a Specified Transaction, the pro forma calculations shall be made in good faith by a Responsible Officer of Borrower and include, for the avoidance of doubt, the amount of cost savings, operating expense reductions and synergies projected by Borrower in good faith to be realized as a result of specified actions taken or with respect to which steps have been initiated, or are reasonably expected to be initiated, within twelve (12) months of the Closing Date, in the case of the Transactions, and in the case of any other Specified Transaction, within twelve (12) months of the closing date of such Specified Transaction (in the good faith determination of Borrower) (calculated on a pro forma basis as though such cost savings, operating expense reductions and synergies had been realized during the entirety of the applicable period), net of the amount of actual benefits realized during such period from such actions; provided that, with respect to any such cost savings, operating expense reductions and synergies, the limitations and requirements set forth in clause (c) of the definitions of Consolidated EBITDA (other than the requirement set forth in clause (c) of Consolidated EBITDA that steps have been initiated or taken) shall apply; provided, further, that the aggregate amount of additions made to Consolidated EBITDA for any Test Period pursuant to this clause (c) and clause (c) of the definition of “Consolidated EBITDA” shall not (i) exceed 15.0% of Consolidated EBITDA for such Test Period (after giving effect to this clause (c) and clause (c) of the definition of “Consolidated EBITDA”) or (ii) be duplicative of one another.

(d)         In the event that Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, prepayment, retirement, exchange or extinguishment) any Indebtedness included in the calculations of the Consolidated Total Leverage Ratio, the Consolidated First Lien Leverage Ratio and the Interest Coverage Ratio, as the case may be (in each case, other than Indebtedness incurred or repaid under any revolving credit facility), (i) during the applicable Test Period and/or (ii) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then the Consolidated Total Leverage Ratio, the Consolidated First Lien Leverage Ratio and the Interest Coverage Ratio shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent required, as if the same had occurred on (A) the last day of the applicable Test Period in the case of the Consolidated Total Leverage Ratio or the Consolidated First Lien Leverage Ratio and (B) the first day of the applicable Test Period in the case of the Interest Coverage Ratio. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of the event for which the calculation of the Interest Coverage Ratio is made had been the applicable rate for the entire period (taking into account any hedging obligations applicable to such Indebtedness); provided that, in the case of repayment of any Indebtedness, to the extent actual interest related thereto was included during all or any portion of the applicable Test Period, the actual interest may be used for the applicable portion of such Test Period. Interest on a Capital Lease shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of Borrower to be the rate of interest implicit in such Capital Lease in accordance with GAAP. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a London interbank offered rate, or other rate, shall be determined to have been based upon the rate actually chosen, or if none, then based upon such optional rate chosen as Borrower may designate.

SECTION 1.06.     Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

 

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SECTION 1.07.     Divisions.   For all purposes under the Credit Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.

SECTION 1.08.     Effect of Benchmark Transition Event.

(a)       Interest Rates; LIBOR Notification. Upon the occurrence of a Benchmark Transition Event or an Early Opt-In Election, this Section 1.08 provides a mechanism for determining an alternative rate of interest. Administrative Agent will promptly notify and consult with Borrower, pursuant to this Section 1.08, of any change to the reference rate upon which the interest rate on LIBOR Loans is based. However, Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to the London interbank offered rate or other rates in the definition of “LIBO Rate” or with respect to any alternative or successor rate thereto, or replacement rate thereof (including, without limitation, (i) any such alternative, successor or replacement rate implemented pursuant to this Section 1.08, whether upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, and (ii) the implementation of any Benchmark Replacement Conforming Changes pursuant to this Section 1.08), including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the LIBO Rate or have the same volume or liquidity as did the London interbank offered rate prior to its discontinuance or unavailability.

(b)       Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Credit Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, Administrative Agent and Borrower may amend this Agreement to replace the LIBO Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after Administrative Agent has posted such proposed amendment to all Lenders and Borrower, so long as Administrative Agent has not received, by such time, written notice of objection to such proposed amendment from Lenders comprising Required Lenders; provided that, with respect to any proposed amendment containing any SOFR-Based Rate, Lenders shall be entitled to object only to the Benchmark Replacement Adjustment contained therein. Any such amendment with respect to an Early Opt-in Election will become effective on the date that Lenders comprising Required Lenders have delivered to Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of the LIBO Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date.

(c)       Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, Administrative Agent in consultation with Borrower will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Credit Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.

(d)       Notices; Standards for Decisions and Determinations. Administrative Agent will promptly notify and consult with Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by Administrative Agent or Lenders pursuant to this Section 1.08 in consultation with Borrower, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event,

 

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circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, with the consent of Borrower and the Required Lenders as required pursuant to this Section 1.08.

(e)       Benchmark Unavailability Period. Upon Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) any Notice of Continuation/Conversion that requests the conversion of any Loan to, or continuation of any Loan as, a LIBOR Loan shall be ineffective and (ii) if any Notice of Borrowing requests a LIBOR Loan, such Loan shall be made as an ABR Loan.

ARTICLE II.

CREDITS

SECTION 2.01.         Loans.

 

  (a)

Revolving Loans.

(i)         Each Revolving Lender agrees, severally and not jointly, on the terms and conditions of this Agreement, to make revolving loans (the “Revolving Loans”) to Borrower in Dollars from time to time, on any Business Day during, with respect to any Tranche of Revolving CommitmentCommitments of such Revolving Lender, the Revolving Availability Period applicable to such Tranche of Revolving CommitmentCommitments, in an aggregate principal amount at any one time outstanding not exceeding the amount of the Revolving CommitmentCommitments of such Tranche of such Revolving Lender as in effect from time to time; provided, however, that, after giving effect to any Borrowing of Revolving Loans, (i) the sum of the aggregate principal amount of (without duplication) all Revolving Loans and Swingline Loans then outstanding plus the aggregate amount of all L/C Liabilities shall not exceed the Total Revolving Commitments as in effect at such time, (ii) the Revolving Exposure of such Revolving Lender shall not exceed such Revolving Lender’s Revolving Commitments in effect at such time, (iii) the Revolving Tranche Exposure of such Revolving Lender in respect of eachthe applicable Tranche of Revolving Commitments of such Lender shall not exceed such Revolving Lender’s Revolving Commitment of such Tranche in effect at such time and (iv) the Revolving Tranche Exposure of all Revolving Lenders in respect of eachsuch Tranche of Revolving Commitments shall not exceed the aggregate Revolving Commitments of such Tranche in effect at such time; provided, further, that Borrower may not borrow Revolving Loans in excess of $250.0 million on the Closing Date. Borrower shall elect the Tranche of Revolving Commitments under which Revolving Loans are to be borrowed under this Section 2.01(a)(iv) by indicating such Tranche in the applicable Notice of Borrowing. Subject to the terms and conditions of this Agreement, during the applicable Revolving Availability Period, Borrower may borrow, repay and re-borrow the amount of the Revolving Commitments by means of ABR Loans and LIBOR Loans.

(ii)         On the FifthSixth Amendment Effective Date, (x) all of the Closing DateFifth Amendment Revolving Commitments (as defined in this Agreement prior to giving effect to the Sixth Amendment) and Revolving Loans thereunder (including the FifthSixth Amendment Incremental Revolving Facility Commitments and FifthSixth Amendment Incremental Revolving Facility Loans thereunder) that constitute “Extending Revolving Commitments” (under and as defined in the FifthSixth Amendment) held by FifthSixth Amendment Extending Revolving Lenders as set forth on Schedule C annexed to the FifthSixth Amendment shall automatically, and without further action by any such Lender, be deemed to be and shall become FifthSixth Amendment Revolving Commitments (and Revolving Loans thereunder) under this Agreement, (y) Administrative Agent shall record all of (1) the Closing DateFifth Amendment Revolving Commitments (as defined in this Agreement prior to giving effect to the Sixth Amendment) (and related Revolving Loans thereunder) that constitute “Extending Revolving Commitments” (under and as defined in the FifthSixth Amendment) that are so modified into FifthSixth Amendment Revolving Commitments on such date and (2) the FifthSixth Amendment Incremental Revolving Facility Commitments (and related FifthSixth Amendment Incremental Revolving Facility Loans thereunder) of the FifthSixth Amendment Incremental Revolving Facility Lenders on such date, in each case, in the Register as FifthSixth Amendment Revolving Commitments (and related Revolving Loans

 

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thereunder) and (z) Administrative Agent and the Revolving Lenders shall take such actions on the FifthSixth Amendment Effective Date as shall be necessary to effectuate Section 5.37.4(b) of the FifthSixth Amendment. The FifthSixth Amendment Revolving Commitments (including the FifthSixth Amendment Incremental Revolving Commitments) (and the Revolving Loans thereunder) shall constitute “Obligations,” “Guaranteed Obligations” and “Secured Obligations” under this Agreement and the other Credit Documents. For the avoidance of doubt, the Sixth Amendment Revolving Commitments on the Sixth Amendment Effective Date shall be as set forth on Annex A-1.

 

  (b)

[Reserved].

 

  (c)

[Reserved].

(iii) From and after the Fifth Amendment Effective Date, any Revolving Lender holding Closing Date Revolving Commitments may, by written notice to Borrower and Administrative Agent elect to convert all (and not less than all) of its Closing Date Revolving Commitments to Fifth Amendment Revolving Commitments, which conversion shall be effective on the date set forth in such written notice (but in no event earlier than five (5) Business Days after delivery of such notice unless Administrative Agent and Borrower shall agree to an earlier date). Upon receipt of such notice, Borrower, Administrative Agent and the Revolving Lenders shall take such actions as shall be necessary to effectuate such modification.

(b) Term A Facility Loans. Each Lender with a Term A Facility Commitment on the Closing Date agrees, severally and not jointly, on the terms and conditions of this Agreement, to make a Term A Facility Loan to Borrower in Dollars on the Closing Date in an aggregate principal amount equal to the Term A Facility Commitment of such Lender on the Closing Date. Term A Facility Loans that are repaid or prepaid may not be reborrowed.

(c) Term B Facility Loans. Each Lender with a Term B Facility Commitment agrees, severally and not jointly, on the terms and conditions of this Agreement, to make a Term B Facility Loan to Borrower in Dollars on the Closing Date in an aggregate principal amount equal to the Term B Facility Commitment of such Lender. Term B Facility Loans that are repaid or prepaid may not be reborrowed.

(d)         Limit on LIBOR Loans. No more than eight (8) separate Interest Periods in respect of LIBOR Loans may be outstanding at any one time in the aggregate under all of the facilities.

(e)         Swingline Loans.

(i)         Swingline Commitment. Subject to the terms and conditions set forth herein and in reliance upon the agreements of the other Lenders set forth in this Section 2.01(e), the Swingline Lender at the request of Borrower may, in the Swingline Lender’s sole discretion, make Swingline Loans to Borrower in Dollars from time to time during any Revolving Availability Period, in an aggregate principal amount at any time outstanding that will not result in (x) the aggregate principal amount of outstanding Swingline Loans exceeding the Swingline Sublimit or (y) (1) the sum of the total Revolving Exposures exceeding the Total Revolving Commitments, (2) the Revolving Exposure of any Revolving Lender exceeding the Revolving Commitments of such Lender then in effect, (3) the Revolving Tranche Exposure of any Revolving Lender in respect of eachsuch Tranche of Revolving Commitments exceeding such Revolving Lender’s Revolving Commitment of such Tranche in effect at such time or (4) the Revolving Tranche Exposure of all Revolving Lenders in respect of eachsuch Tranche of Revolving Commitments exceeding the aggregate Revolving Commitments of such Tranche in effect at such time; provided, however, that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, Borrower may borrow, repay and re-borrow Swingline Loans. Borrower shall elect the Tranche of Revolving Commitments under which such Swingline Loan is to be borrowed under this Section 2.01(e)(i) by indicating such Tranche in the applicable Notice of Borrowing. Notwithstanding anything to the contrary contained in this Section 2.01(e) or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Revolving Lender under the applicable Tranche is a Defaulting Lender if such Defaulting

 

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Lender’s participation in Swingline Loans cannot be reallocated to Non-Defaulting Lenders pursuant to Section 2.14(a) unless arrangements reasonably satisfactory to the Swingline Lender and Borrower have been made to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by Cash Collateralizing in an amount equal to the Minimum Collateral Amount, or obtaining a backstop letter of credit from an issuer reasonably satisfactory to the Swingline Lender to support, such Defaulting Lender’s or Defaulting Lenders’ Commitment percentage of outstanding Swingline Loans.

(ii)         Swingline Loans. To request a Swingline Loan, Borrower shall notify Administrative Agent of such request by telephone (promptly confirmed in writing in the form of a Notice of Borrowing by facsimile or electronic mail), not later than 1:00 p.m., New York time, on the day of a proposed Swingline Loan (which day shall be a Business Day). Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan and the Tranche of Revolving Commitments under which such Swingline Loan is to be borrowed. Administrative Agent will promptly advise the Swingline Lender of any such notice received from Borrower. Unless the Swingline Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swingline Loan (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in the first sentence of Section 2.01(e)(i) or (B) that one or more of the applicable conditions specified in Section 7.02 is not then satisfied, then, subject to the terms and conditions hereof, the Swingline Lender shall make each Swingline Loan available to Borrower by depositing the same by wire transfer of immediately available funds in (or, in the case of an account of Borrower maintained with the Swingline Lender, by crediting the same to) the account of Borrower as directed by Borrower in the applicable Notice of Borrowing for such Swingline Loan by 4:00 p.m., New York time, on the requested date of such Swingline Loan. Swingline Loans shall only be incurred and maintained as ABR Loans. Borrower shall not request a Swingline Loan if at the time of or immediately after giving effect to such request a Default or an Event of Default has occurred and is continuing. Swingline Loans shall be made in minimum amounts of $500,000 and integral multiples of $250,000 above such amount. Immediately upon the making of a Swingline Loan, each Revolving Lender of the applicable Tranche shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such Lender’s R/C Percentage (with respect to the applicable Tranche of Revolving Commitments) of such Swingline Loan.

(iii)         Prepayment. Borrower shall have the right at any time and from time to time to repay any Swingline Loan, in whole or in part, and without any penalty or premium, upon giving written or telecopy notice (or telephone notice promptly confirmed by written, or telecopy notice) to the Swingline Lender and to Administrative Agent before 12:00 p.m. (Noon), New York time, on the date of repayment at the Swingline Lender’s office as the Swingline Lender may from time to time specify to Borrower and Administrative Agent.

(iv)         Refinancing; Participations.

(A)         The Swingline Lender at any time in its sole discretion may request, on behalf of Borrower (which hereby irrevocably authorizes the Swingline Lender to so request on its behalf), that each Revolving Lender under the applicable Tranche make a ABR Loan in an amount equal to such Lender’s R/C Percentage of the Total Revolving Commitments(with respect to the applicable Tranche) of the amount of Swingline Loans then outstanding. Such request shall be made in writing and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified in this Agreement for the principal amount of ABR Loans, but subject to the unutilized portion of the Revolving Commitments of the applicable Tranche and the conditions set forth in Section 7.02. The Swingline Lender shall furnish Borrower with a copy of the applicable notice promptly after delivering such notice to the Administrative Agent. Each Revolving Lender under the applicable Tranche shall make an amount equal to its R/C Percentage of the Total Revolving Commitments of the(with respect to the applicable Tranche) of the amount specified in such notice available to the Administrative Agent in immediately available funds (and the Administrative Agent may apply Cash Collateral available with respect to the

 

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applicable Swingline Loan) for the account of the Swingline Lender at the Administrative Agent’s Office for Dollar-denominated payments not later than 1:00 p.m. on the day specified in such notice, whereupon, subject to Section 2.01(e)(iv)(B), each Revolving Lender under the applicable Tranche that so makes funds available shall be deemed to have made a ABR Loan under such Tranche to Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swingline Lender.

(B)         If for any reason any Swingline Loan cannot be refinanced by such a Borrowing in accordance with Section 2.01(e)(iv)(A), the request for ABR Loans submitted by the Swingline Lender as set forth herein shall be deemed to be a request by the Swingline Lender that each of the Revolving Lenders under the applicable Tranche fund its risk participation in the relevant Swingline Loan in an amount equal to its R/C Percentage of the Total Revolving Commitments of the amount specified in such request and each Revolving Lender’s payment to the Administrative Agent for the account of the Swingline Lender pursuant to Section 2.01(e)(iv)(A) shall be deemed payment in respect of such participation.

(C)         If any Revolving Lender under the applicable Tranche fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Revolving Lender pursuant to Section 2.01(e)(iv)(A) by the time specified in such Section, the Swingline Lender shall be entitled to recover from such Revolving Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender, at a rate per annum equal to the greater of the Federal Funds Effective Rate and a rate determined by the Swingline Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Revolving Lender pays such amount (with interest and fees as aforesaid), the amount so paid (other than any such interest or fees) shall constitute such Lender’s Revolving Loan included in the relevant Borrowing or funded participation in the relevant Swingline Loan, as the case may be. A certificate of the Swingline Lender submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (C) shall be conclusive absent manifest error.

(D)         Each Revolving Lender’s obligation to make Revolving Loans under the applicable Tranche of Revolving Commitments or to purchase and fund risk participations in Swingline Loans pursuant to this Section 2.01(e)(iv) shall be pro rata across all Tranches of Revolving Commitments and shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Revolving Lender may have against the Swingline Lender, Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Revolving Lender’s obligation to make Revolving Loans under the applicable Tranche of Revolving Commitments pursuant to this Section 2.01(e)(iv) is subject to the conditions set forth in Section 7.02. No such funding of risk participations shall relieve or otherwise impair the obligation of Borrower to repay Swingline Loans, together with interest as provided herein.

(E)         The Swingline Lender shall be responsible for invoicing Borrower for interest on the Swingline Loans. Until each Revolving Lender under the applicable Tranche of Revolving Commitments funds its Revolving Loan or risk participation pursuant to this Section 2.01(e) to refinance such Revolving Lender’s R/C Percentage of the Total(with respect to the applicable Tranche of Revolving Commitments) of any Swingline Loan, interest in respect of such R/C Percentage shall be solely for the account of the Swingline Lender.

 

(f)

[Reserved].

 

(g)

[Reserved].

 

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(h)

(f) Term A-35 Facility Loans.

(i)         Subject toEach Sixth Amendment Extending Term A-4 Facility Lender hereby severally agrees that effective on the Sixth Amendment Effective Date, all of the “Extending Term A-4 Facility Loans” (under and as defined in the Sixth Amendment) of such Sixth Amendment Extending Term A-4 Facility Lender as set forth on Schedule B annexed to the Sixth Amendment shall automatically, and without further action by such Sixth Amendment Extending Term A-4 Facility Lender, be modified to become a Term A-5 Facility Loan having the terms and conditions set forth in the Third Amendment, each Term A-3 Facility Lender severally agrees to make a term loan in Dollars to the Borrower on the ThirdSixth Amendment and this Agreement. On the Sixth Amendment Effective Date in, the principal amount equal to its Term A-3 Facility Commitment on the Third Amendment Effective Date and consents to each amendment, waiver and acknowledgement effected by the Third Amendment. The Borrower shall prepay in full all existing Term A Facility Loans (excluding, however, any Term A Facility Loans held on the Third Amendment Effective Date by Bank of America, N.A., it being understood that Bank of America, N.A. has waived its right to such prepayment (in such capacity, the “Declining Lender”)) in an aggregate amount equal to the aggregate gross proceeds of the Term A-3 Facility Loans, concurrently with the receipt thereof in accordance with Section 2.09 and Section 4.02 of the Credit AgreementAdministrative Agent shall revise the Register to reflect the modification of the “Extending Term A-4 Facility Loans” (under and as defined in the Sixth Amendment) of the Sixth Amendment Extending Term A-4 Facility Lenders into Term A-5 Facility Loans. All Term A-35 Facility Loans will have the Types and Interest Periods specified in the Notice of Borrowing or Notice of Continuation/Conversion delivered in connection with the ThirdSixth Amendment. All accrued and unpaid interest on the existing Term AA-4 Facility Loans that are prepaid(as defined in this Agreement prior to giving effect to this Amendment) that are modified to be Term A-5 Facility Loans pursuant to this Section 2.01(fh) to, but not including, the ThirdSixth Amendment Effective Date shall be payable on the ThirdSixth Amendment Effective Date and the Borrower will make any payments required under Section 5.05 with respect to such existing Term AA-4 Facility Loans (as defined in this Agreement prior to giving effect to this Amendment) in accordance therewith. For the avoidance of doubt, the outstanding Term A-5 Facility Loans on the Sixth Amendment Effective Date shall be as set forth on Annex A-2.

(ii) Subject to the terms and conditions set forth in the Fourth Amendment, each Fourth Amendment Incremental Term A-3 Facility Lender severally agrees to make a term loan in Dollars to the Borrower on the Fourth Amendment Effective Date in the principal amount equal to its Fourth Amendment Incremental Term A-3 Facility Commitment on the Fourth Amendment Effective Date and consents to each amendment, waiver and acknowledgement effected by the Fourth Amendment. All Fourth Amendment Incremental Term A-3 Facility Loans will have the Types and Interest Periods specified in the Notice of Borrowing delivered in connection with the Fourth Amendment, which, at Borrower’s election, may be the same Types and Interest Periods as the existing Term A-3 Facility Loans outstanding on the Fourth Amendment Effective Date. Upon the funding thereof, the Fourth Amendment Incremental Term A-3 Facility Loans shall for all purposes constitute Term A-3 Facility Loans hereunder and each Fourth Amendment Incremental Term A-3 Facility Lender shall be a Term A-3 Facility Lender hereunder.

(iii) Subject to the terms and conditions set forth in the Fourth Amendment, on the Fourth Amendment Effective Date, the Term A Facility Loans of the Declining Lender shall be automatically converted to Term A-3 Facility Loans having the same terms as the Term A-3 Facility Loans as set forth in this Agreement and the Credit Documents after giving effect to the Fourth Amendment.

(ii)    (iv)  The Term A-35 Facility Loans (including the Fourth Amendment Incremental Term A-3 Facility Loans) shall have the same terms as the Term A Facility Loans as set forth in this Agreement and the Credit Documents before giving effect to the Third Amendment and the Fourth Amendment, except as modified by the Third Amendment and the Fourth Amendment (and for the avoidance of doubt shall also have all of the terms expressly provided herein and in any other Credit

 

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Document for the Term A-3 Facility Loans (including, without limitation, the Applicable Margin for Term A-3 Facility Loans set forth in Annex B hereto and the amortization payments for Term A-3 Facility Loans set forth in Annex C hereto)); it being understood that the Term A-3 Facility Loans (including the Fourth Amendment Incremental Term A-3 Facility Loans) (and all principal, interest and other amounts in respect thereof) willshall constitute “Obligations,” “Guaranteed Obligations” and “Secured Obligations” under this Agreement and the other Credit Documents. The aggregate outstanding principal amount of the Term A-35 Facility Loans (including the Fourth Amendment Incremental Term A-3 Facility Loans) for all purposes of this Agreement and the other Credit Documents shall be the stated principal amount thereof outstanding from time to time. The Term A-35 Facility Loans (including the Fourth Amendment Incremental Term A-3 Facility Loans) may from time to time be LIBOR Loans or ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Section 2.09 of this Agreement.

 

  (i)

        (g) Term A-4B-1 Facility Loans.

(i) Pursuant to Section 2.13, each Fifth Amendment Extending Term A-3 Facility Lender hereby severally agrees that effective on the Fifth Amendment Effective Date, all of the “Extending Term A-3 Facility Loans” (under and as defined in the Fifth Amendment) of such Fifth Amendment Extending Term A-3 Facility Lender as set forth on Schedule B annexed to the Fifth Amendment shall automatically, and without further action by such Fifth Amendment Extending Term A-3 Facility Lender, be modified to become a Term A-4 Facility Loans having the terms and conditions set forth in the Fifth Amendment and this Agreement. On the Fifth Amendment Effective Date, the Administrative Agent shall revise the Register to reflect the modification of the “Extending Term A-3 Facility Loans” (under and as defined in the Fifth Amendment) of the Fifth Amendment Extending Term A-3 Facility Lenders into Term A-4 Facility Loans. All Term A-4 Facility Loans will have the Types and Interest Periods specified in the Notice of Borrowing delivered in connection with the Fifth Amendment. All accrued and unpaid interest on the existing Term A-3 Facility Loans that are prepaid pursuant to this Section 2.01(g) to, but not including, the Fifth Amendment Effective Date shall be payable on the Fifth Amendment Effective Date and the Borrower will make any payments required under Section 5.05 with respect to such existing Term A-3 Facility Loans in accordance therewith.

(i)         Each Lender with a Sixth Amendment Extending Term B Facility Commitment on the Sixth Amendment Effective Date agrees, severally and not jointly, on the terms and conditions of this Agreement and the Sixth Amendment, to make a Term B-1 Facility Loan to Borrower in Dollars on the Sixth Amendment Effective Date in an aggregate principal amount equal to the Sixth Amendment Extending Term B Facility Commitment of such Lender. Term B-1 Facility Loans that are repaid or prepaid may not be reborrowed.

(ii)         The Term A-4B-1 Facility Loans shall constitute “Obligations,” “Guaranteed Obligations” and “Secured Obligations” under this Agreement and the other Credit Documents. The aggregate outstanding principal amount of the Term A-4B-1 Facility Loans for all purposes of this Agreement and the other Credit Documents shall be the stated principal amount thereof outstanding from time to time. The Term A-4B-1 Facility Loans may from time to time be LIBOR Loans or ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Section 3.3 of the Fifth Amendment and Section 2.09 of this Agreement. For the avoidance of doubt, the outstanding Term B-1 Facility Loans on the Sixth Amendment Effective Date shall be as set forth on Annex A-3.

(iii) From and after the Fifth Amendment Effective Date, any Lender holding Term A-3 Facility Loans may, by written notice to Borrower and Administrative Agent elect to convert all (and not less than all) of its Term A-3 Facility Loans to Term A-4 Facility Loans, which conversion shall be effective on the date set forth in such written notice (but in no event earlier than five (5) Business Days after delivery of such notice unless Administrative Agent and Borrower shall agree to an earlier date). Upon receipt of such notice, Borrower, Administrative Agent and the Term Lenders shall take such actions as shall be necessary to effectuate such modification.

 

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(j)        Cashless Settlement. Notwithstanding anything to the contrary contained in this Agreement, any Lender may exchange, continue or rollover all or a portion of its Loans in Connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement (including, without limitation, in connection with the transactions to occur on the Sixth Amendment Effective Date), pursuant to a cashless settlement mechanism approved by Borrower, Administrative Agent and such Lender.

SECTION 2.02.      Borrowings.    Borrower shall give Administrative Agent notice of each borrowing hereunder as provided in Section 4.05 in the form of a Notice of Borrowing. Unless otherwise agreed to by Administrative Agent in its sole discretion, not later than 12:00 p.m. (Noon), New York time, on the date specified for each borrowing in Section 4.05, each Lender shall make available the amount of the Loan or Loans to be made by it on such date to Administrative Agent, at an account specified by Administrative Agent maintained at the Principal Office, in immediately available funds, for the account of Borrower. Each borrowing of Revolving Loans under a particular Tranche of Revolving Commitments shall be made by each Revolving Lender pro rata among all Tranches ofwith Revolving Commitments of such Tranche pro rata based on its R/C Percentage of the Totalwith respect to such Tranche of Revolving Commitments. The amounts so received by Administrative Agent shall, subject to the terms and conditions of this Agreement, be made available to Borrower not later than 4:00 p.m., New York time, on the actual applicable Funding Date, by depositing the same by wire transfer of immediately available funds in (or, in the case of an account of Borrower maintained with Administrative Agent at the Principal Office, by crediting the same to) the account or accounts of Borrower or any other account or accounts in each case as directed by Borrower in the applicable Notice of Borrowing.

SECTION 2.03. Letters of Credit.

(a)      Subject to the terms and conditions hereof, the Revolving Commitments may be utilized, upon the request of Borrower, in addition to the Revolving Loans provided for by Section 2.01(a), for standby and commercial documentary letters of credit (herein collectively called “Letters of Credit”) issued by the applicable L/C Lender (which L/C Lenders agree to the terms and provisions of this Section 2.03 in reliance upon the agreements of the other Lenders set forth herein) for the account of Borrower or its Subsidiaries; provided, however, that in no event shall

(i)      (A) the aggregate amount of all L/C Liabilities, plus the aggregate principal amount of all the Revolving Loans and Swingline Loans then outstanding, exceed at any time the Total Revolving Commitments as in effect at such time or (B) the Revolving Tranche Exposure of all Revolving Lenders in respect of eachthe applicable Tranche of Revolving Commitments exceed the aggregate Revolving Commitments of such Tranche in effect at such time,

(ii)      (A) the sum of the aggregate principal amount of all Revolving Loans of any Revolving Lender then outstanding, plus such Revolving Lender’s L/C Liability plus such Revolving Lender’s Swingline Exposure exceed at any time such Revolving Lender’s Revolving Commitment as in effect at such time or (B) the Revolving Tranche Exposure of any Revolving Lender in respect of eachthe applicable Tranche of Revolving Commitments exceed such Revolving Lender’s Revolving Commitment of such Tranche in effect at such time,

(iii)      (x) the outstanding aggregate amount of all L/C Liabilities exceed the L/C Sublimit or (y) unless the applicable L/C Lender consents, the Stated Amount of all Letters of Credit issued by such L/C Lender plus the aggregate amount of all L/C Disbursements of such L/C Lender that have not yet been reimbursed in respect of all Letters of Credit issued by such L/C Lender exceed such L/C Lender’s L/C Commitment,

(iv)      the Stated Amount of any Letter of Credit be less than $100,000 or such lesser amount as is acceptable to the L/C Lender,

 

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(v)      the expiration date of any Letter of Credit extend beyond the earlier of (x) the third Business Day preceding the latest R/C Maturity Date then in effect and (y) the date twelve (12) months following the date of such issuance, unless in the case of this clause (y) the Required Revolving Lenders have approved such expiry date in writing (but never beyond the third Business Day prior to the latest R/C Maturity Date then in effect), except for any Letter of Credit that Borrower has agreed to Cash Collateralize in an amount equal to the Minimum Collateral Amount or otherwise backstop (with a letter of credit on customary terms) to the applicable L/C Lender’s and the Administrative Agent’s reasonable satisfaction, on or prior to the third Business Day preceding the latest R/C Maturity Date then in effect, subject to the ability of Borrower to request Auto-Extension Letters of Credit in accordance with Section 2.03(b); provided that in the case of any such Letter of Credit that is so Cash Collateralized, the obligations of the Revolving Lenders to participate in such Letters of Credit pursuant to Section 2.03(f) shall terminate on the third Business Day preceding the latest R/C Maturity Date then in effect,

(vi)      any L/C Lender issue any Letter of Credit after it has received notice from Borrower or the Required Revolving Lenders stating that a Default exists until such time as such L/C Lender shall have received written notice of (x) rescission of such notice from the Required Revolving Lenders, (y) waiver or cure of such Default in accordance with this Agreement or (z) Administrative Agent’s good faith determination that such Default has ceased to exist,

(vii)      any Letter of Credit be issued in a currency other than Dollars nor at a tenor other than sight; or

(viii)      the L/C Lender be obligated to issue any Letter of Credit, amend or modify any outstanding Letter of Credit or extend the expiry date of any outstanding Letter of Credit at any time when a Revolving Lender under the applicable Tranche of Revolving Commitments is a Defaulting Lender if such Defaulting Lender’s L/C Liability cannot be reallocated to Non-Defaulting Lenders under the applicable Tranche pursuant to Section 2.14(a) unless arrangements reasonably satisfactory to the L/C Lender and Borrower have been made to eliminate the L/C Lender’s risk with respect to the participation in Letters of Credit by all such Defaulting Lenders, including by Cash Collateralizing in an amount equal to the Minimum Collateral Amount, or obtaining a backstop letter of credit from an issuer reasonably satisfactory to the L/C Lender to support, each such Defaulting Lender’s L/C Liability.

(b)      Whenever Borrower requires the issuance of a Letter of Credit it shall give the applicable L/C Lender and Administrative Agent at least three (3) Business Days written notice (or such shorter period of notice acceptable to the L/C Lender). Such Letter of Credit application may be sent by facsimile, by United States mail, by overnight courier, by electronic transmission using the system agreed to by the applicable L/C Lender, by personal delivery or by any other means acceptable to the applicable L/C Lender. Each notice shall be in the form of Exhibit L or such other form as is reasonably acceptable to the applicable L/C Lender appropriately completed (each a “Letter of Credit Request”) and shall specify the Tranche of Revolving Commitments under which such Letter of Credit shall be issued and a date of issuance not beyond the fifth Business Day prior to the latest R/C Maturity Date then in effect. for the applicable Tranche (it being understood that after issuance of any Letter of Credit, Borrower may be written notice to Administrative Agent designate such Letter of Credit as having been issued under another Tranche of Revolving Commitments if such Letter of Credit would be permitted to be issued under such other Tranche of Revolving Commitments at such time). Each Letter of Credit Request must be accompanied by documentation describing in reasonable detail the proposed terms, conditions and format of the Letter of Credit to be issued, and if so requested by any L/C Lender each Letter of Credit Request shall be accompanied by such L/C Lender’s form of application but which application shall not contain any operating or financial covenants or any provisions inconsistent with this Agreement. If Borrower so requests in any applicable Letter of Credit Request, the applicable L/C Lender may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Lender to decline any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Lender at the time of the original issuance or automatic extension of a Letter of Credit, Borrower shall not be required to make a specific request to the L/C Lender for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have

 

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authorized (but may not require) the L/C Lender to permit the extension of such Letter of Credit at any time to an expiry date not later than the third Business Day preceding the latest R/C Maturity Date then in effect for the applicable Tranche of Revolving Commitments (provided, that such three (3) Business Day limitation shall not apply to any Letter of Credit that Borrower has agreed to Cash Collateralize in an amount equal to the Minimum Collateral Amount or otherwise backstop (with a letter of credit on customary terms) to the applicable L/C Lender’s and the Administrative Agent’s reasonable satisfaction); provided, however, that the L/C Lender shall not permit any such extension if (A) the L/C Lender has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section 2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required RevolvingTranche Lenders of the applicable Tranche of Revolving Commitments have elected not to permit such extension or (2) from the Administrative Agent, any Lender or Borrower that one or more of the applicable conditions specified in Section 7.02 is not then satisfied, and in each such case directing the L/C Lender not to permit such extension. If there is any conflict between the terms and conditions of this Agreement and the terms and condition of any application, the terms and conditions of this Agreement shall govern. Each Lender hereby authorizes each L/C Lender to issue and perform its obligations with respect to Letters of Credit and each Letter of Credit shall be issued in accordance with the customary procedures of such L/C Lender. Borrower acknowledges and agrees that the failure of any L/C Lender to require an application at any time and from time to time shall not restrict or impair such L/C Lender’s right to require such an application or agreement as a condition to the issuance of any subsequent Letter of Credit.

(c)       On each day during the period commencing with the issuance by the applicable L/C Lender of any Letter of Credit and until such Letter of Credit shall have expired or been terminated, the Revolving CommitmentCommitments under the applicable Tranche of each Revolving Lender shall be deemed to be utilized for all purposes hereof in an amount equal to such Lender’s R/C Percentage of the then Stated Amount of such Letter of Credit plus the amount of any unreimbursed drawings thereunder. Each Revolving Lender under the applicable Tranche (other than the applicable L/C Lender) severally agrees that, upon the issuance of any Letter of Credit hereunder, it shall automatically acquire from the L/C Lender that issued such Letter of Credit, without recourse, a participation in such L/C Lender’s obligation to fund drawings and rights under such Letter of Credit in an amount equal to such Lender’s R/C Percentage with respect to the applicable Tranche of Revolving Commitments of such obligation and rights, and each Revolving Lender under the applicable Tranche (other than such L/C Lender) thereby shall absolutely, unconditionally and irrevocably assume, as primary obligor and not as surety, and shall be unconditionally obligated to such L/C Lender to pay and discharge when due, its R/C Percentage with respect to the applicable Tranche of Revolving Commitments of such L/C Lender’s obligation to fund drawings under such Letter of Credit. Such L/C Lender shall be deemed to hold an L/C Liability in an amount equal to its retained interest in the related Letter of Credit after giving effect to such acquisition by the Revolving Lenders under the applicable Tranche other than such L/C Lender of their participation interests. For the avoidance of doubt, each Revolving Lender’s obligation to participate in Letters of Credit hereunder shall be pro rata across all Tranches of Revolving Commitments in accordance with such Lender’s R/C Percentage of the Total Revolving Commitments.

(d)       In the event that any L/C Lender has determined to honor a drawing under a Letter of Credit, such L/C Lender shall promptly notify (the “L/C Payment Notice”) Administrative Agent and Borrower of the amount paid by such L/C Lender and the date on which payment is to be made to such beneficiary. Borrower hereby unconditionally agrees to pay and reimburse such L/C Lender, through the Administrative Agent, for the amount of payment under such Letter of Credit in Dollars, together with interest thereon at a rate per annum equal to the Alternate Base Rate in effect from time to time plus the Applicable Margin applicable to Revolving Loans under the applicable Tranche of Revolving Commitments that are maintained as ABR Loans as are in effect from time to time (determined based on a weighted average if multiple Tranches of Revolving Commitments are then outstanding) from the date payment was made to such beneficiary to the date on which payment is due, such payment to be made not later than the second Business Day after the date on which Borrower receives the applicable L/C Payment Notice (or the third Business Day thereafter if such L/C Payment Notice is received on a date that is not a Business Day or after 1:00 p.m., New York time, on a Business Day). Any such payment due from Borrower and not paid on the required date shall thereafter bear interest at rates specified in Section 3.02(b) until paid. Promptly upon receipt of the amount paid by Borrower pursuant to the immediately prior sentence, the applicable L/C Lender shall notify Administrative Agent of such payment and whether or not such payment constitutes payment in full of the Reimbursement Obligation under the applicable Letter of Credit.

 

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(e)      Promptly upon its receipt of a L/C Payment Notice referred to in Section 2.03(d), Borrower shall advise the applicable L/C Lender and Administrative Agent whether or not Borrower intends to borrow hereunder to finance its obligation to reimburse such L/C Lender for the amount of the related demand for payment under the applicable Letter of Credit and, if it does so intend, submit a Notice of Borrowing for such borrowing to Administrative Agent as provided in Section 4.05. In the event that Borrower fails to reimburse any L/C Lender, through the Administrative Agent, for a demand for payment under a Letter of Credit by the second Business Day after the date of the applicable L/C Payment Notice (or the third Business Day thereafter if such L/C Payment Notice is received on a date that is not a Business Day or after 1:00 p.m., New York time on a Business Day), such L/C Lender shall promptly notify Administrative Agent of such failure by Borrower to so reimburse and of the amount of the demand for payment. In the event that Borrower fails to either submit a Notice of Borrowing to Administrative Agent as provided above or reimburse such L/C Lender, through the Administrative Agent, for a demand for payment under a Letter of Credit by the second Business Day after the date of the applicable L/C Payment Notice (or the third Business Day thereafter if such L/C Payment Notice is received on a date that is not a Business Day or after 1:00 p.m., New York time, on a Business Day), Administrative Agent shall give each Revolving Lender under the applicable Tranche prompt notice of the amount of the demand for payment including the interest therein owed by Borrower (the “Unreimbursed Amount”), specifying such Lender’s R/C Percentage with respect to the applicable Tranche of Revolving Commitments thereof and requesting payment of such amount.

(f)      Each Revolving Lender (other than the applicable L/C Lender) under the applicable Tranche shall pay to Administrative Agent for account of the applicable L/C Lender at the Principal Office in Dollars and in immediately available funds, an amount equal to such Revolving Lender’s R/C Percentage ofwith respect to the applicable Tranche of Revolving Commitments of the Unreimbursed Amount upon not less than one Business Day’s actual notice by Administrative Agent as described in Section 2.03(e) to such Revolving Lender requesting such payment and specifying such amount. Administrative Agent will promptly remit the funds so received to the applicable L/C Lender in Dollars. Each such Revolving Lender’s obligation to make such payments to Administrative Agent for the account of L/C Lender under this Section 2.03(f), and the applicable L/C Lender’s right to receive the same, shall be absolute and unconditional and shall not be affected by any circumstance whatsoever, including (i) the failure of any other Revolving Lender to make its payment under this Section 2.03(f), (ii) the financial condition of Borrower or the existence of any Default or (iii) the termination of the Commitments. Each such payment to any L/C Lender shall be made without any offset, abatement, withholding or reduction whatsoever.

(g)      Upon the making of each payment by a Revolving Lender, through the Administrative Agent, to an L/C Lender pursuant to Section 2.03(f) in respect of any Letter of Credit, such Revolving Lender shall, automatically and without any further action on the part of Administrative Agent, such L/C Lender or such Revolving Lender, acquire (i) a participation in an amount equal to such payment in the Reimbursement Obligation owing to such L/C Lender by Borrower hereunder and under the L/C Documents relating to such Letter of Credit and (ii) a participation equal to such Revolving Lender’s R/C Percentage with respect to the applicable Tranche of Revolving Commitments in any interest or other amounts (other than cost reimbursements) payable by Borrower hereunder and under such L/C Documents in respect of such Reimbursement Obligation. If any L/C Lender receives directly from or for the account of Borrower any payment in respect of any Reimbursement Obligation or any such interest or other amounts (including by way of setoff or application of proceeds of any collateral security), such L/C Lender shall promptly pay to Administrative Agent for the account of each Revolving Lender under the applicable Tranche which has satisfied its obligations under Section 2.03(f), such Revolving Lender’s R/C Percentage with respect to the applicable Tranche of Revolving Commitments of such payment, each such payment by such L/C Lender to be made in Dollars. In the event any payment received by such L/C Lender and so paid to the Revolving Lenders hereunder is rescinded or must otherwise be returned by such L/C Lender, each applicable Revolving Lender shall, upon the request of such L/C Lender (through Administrative Agent), repay to such L/C Lender (through Administrative Agent) the amount of such payment paid to such Revolving Lender, with interest at the rate specified in Section 2.03(j).

(h)      Borrower shall pay to Administrative Agent, for the account of each Revolving Lender under the applicable Tranche, and with respect to each Tranche of Revolving Commitments, in respect of each Letter of Credit and each Tranche of Revolving Commitments for which such Revolving Lender has a L/C Liability, a letter of credit commission equal to (x) the rate per annum equal to the Applicable Margin for Revolving Loans of such Tranche made by such Revolving Lender that are LIBOR Loans in effect from time to time, multiplied by (y) the daily Stated Amount of such Letter of Credit allocable to such Revolving Lender’s Revolving Commitments of such Tranche for

 

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the period from and including the date of issuance of such Letter of Credit (i) in the case of a Letter of Credit which expires in accordance with its terms, to and including such expiration date and (ii) in the case of a Letter of Credit which is drawn in full or is otherwise terminated other than on the stated expiration date of such Letter of Credit, to and excluding the date such Letter of Credit is drawn in full or is terminated. Such commission will be non-refundable and is to be paid (1) quarterly in arrears on each Quarterly Date and (2) on each applicable R/C Maturity Date. In addition, Borrower shall pay to each L/C Lender, for such L/C Lender’s account a fronting fee (i) with respect to each commercial Letter of Credit, at the rate separately agreed to with such L/C Lender, computed on the amount of such Letter of Credit, and payable upon the issuance thereof, (ii) with respect to any amendment of a commercial Letter of Credit increasing the amount of such Letter of Credit, at a rate separately agreed between Borrower and such L/C Lender, computed on the amount of such increase, and payable upon the effectiveness of such amendment, and (iii) with respect to each standby Letter of Credit, at the rate equal to the greater of (i) $500 per quarter or (ii) 0.25% per annum, computed on the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears. Such fronting fee shall be due and payable on each Quarterly Date in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the latest R/C Maturity Date and thereafter on demand. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. In addition Borrower agrees to pay to each L/C Lender all charges, costs and expenses in the amounts customarily charged by such L/C Lender, from time to time in like circumstances, with respect to the issuance, amendment, transfer, payment of drawings, and other transactions relating thereto.

(i)      Upon the issuance of or amendment or modification to a Letter of Credit, the applicable L/C Lender shall promptly deliver to Administrative Agent and Borrower a written notice of such issuance, amendment or modification and such notice shall be accompanied by a copy of such Letter of Credit or the respective amendment or modification thereto, as the case may be. Promptly upon receipt of such notice, Administrative Agent shall deliver to each Revolving Lender under the applicable Tranche a written notice regarding such issuance, amendment or modification, as the case may be, and, if so requested by a Revolving Lender under the applicable Tranche, Administrative Agent shall deliver to such Revolving Lender a copy of such Letter of Credit or amendment or modification, as the case may be.

(j)      If and to the extent that any Revolving Lender under the applicable Tranche fails to pay an amount required to be paid pursuant to Section 2.03(f) or 2.03(g) on the due date therefor, such Revolving Lender shall pay to the applicable L/C Lender (through Administrative Agent) interest on such amount with respect to eachthe applicable Tranche of Revolving Commitments held by such Revolving Lender for each day from and including such due date to but excluding the date such payment is made at a rate per annum equal to the Federal Funds Effective Rate (as in effect from time to time) for the first three days and at the interest rate (in effect from time to time) applicable to Revolving Loans under such Tranche made by such Revolving Lender that are maintained as ABR Loans for each date thereafter. If any Revolving Lender holds Revolving Commitments of more than one Tranche and such Revolving Lender makes a partial payment of amounts due by it under Section 2.03(f) or 2.03(g) with respect to multiple Tranches, such partial payment shall be allocated pro rata to each Tranche based on the amount of Revolving Commitments of each Tranche held by such Revolving Lender.

(k)      The issuance by any L/C Lender of any amendment or modification to any Letter of Credit hereunder that would extend the expiry date or increase the Stated Amount thereof shall be subject to the same conditions applicable under this Section 2.03 to the issuance of new Letters of Credit, and no such amendment or modification shall be issued hereunder (i) unless either (x) the respective Letter of Credit affected thereby would have complied with such conditions had it originally been issued hereunder in such amended or modified form or (y) the Required Revolving Lenders (or other specified Revolving Lenders to the extent required by Section 13.04) shall have consented thereto or (ii) if the beneficiary of the Letter of Credit does not accept the proposed terms of the Letter of Credit.

(l)      Notwithstanding the foregoing, no L/C Lender shall be under any obligation to issue any Letter of Credit if at the time of such issuance, (i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Lender from issuing the Letter of Credit, or any Law applicable to such L/C Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Lender shall prohibit, or request that such L/C Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon such L/C Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which such L/C Lender is not

 

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otherwise compensated hereunder) not in effect on the ClosingSixth Amendment Effective Date, or shall impose upon such L/C Lender any unreimbursed loss, cost or expense which was not applicable on the ClosingSixth Amendment Effective Date and which such L/C Lender in good faith deems material to it or (ii) the issuance of the Letter of Credit would violate one or more policies of such L/C Lender applicable to letters of credit generally.

(m)      The obligations of Borrower under this Agreement and any L/C Document to reimburse any L/C Lender for a drawing under a Letter of Credit, and to repay any drawing under a Letter of Credit converted into Revolving Loans or Swingline Loans, shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement and each such other L/C Document under all circumstances, including the following:

(i)      any lack of validity or enforceability of this Agreement, any Credit Document or any L/C Document;

(ii)      the existence of any claim, setoff, defense or other right that Borrower may have at any time against any beneficiary or any transferee of any Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), any L/C Lender or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by the L/C Documents or any unrelated transaction;

(iii)      any draft, demand, certificate or other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any Letter of Credit; or any defense based upon the failure of any drawing under a Letter of Credit to conform to the terms of the Letter of Credit or any non-application or misapplication by the beneficiary of the proceeds of such drawing;

(iv)      waiver by a L/C Lender of any requirement that exists for the L/C Lender’s protection and not the protection of Borrower or any waiver by the L/C Lender which does not in fact materially prejudice Borrower;

(v)      honor of a demand for payment presented electronically even if such Letter of Credit requires that demand be in the form of a draft;

(vi)      any payment made by a L/C Lender in respect of an otherwise complying item presented after the date specified as the expiration date of, or the date by which documents must be received under such Letter of Credit if presentation after such date is authorized by the UCC, the ISP or the UCP, as applicable;

(vii)      any payment by a L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by a L/C Lender under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or

(viii)      any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, Borrower or a Guarantor.

To the extent that any provision of any L/C Document is inconsistent with the provisions of this Section 2.03, the provisions of this Section 2.03 shall control.

 

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(n)      Borrower, Administrative Agent and Revolving Lenders hereby agree that, as of the Closing Date, each letter of credit identified on Schedule 2.03(n) (each, an “Existing Letter of Credit”) shall be a Letter of Credit as if originally issued under this Agreement, and that the fees and other provisions set forth in this Section 2.03 shall be applicable to each Existing Letter of Credit as of the Closing Date.

(o)      On the last Business Day of each month, each L/C Lender shall provide to Administrative Agent such information regarding the outstanding Letters of Credit as Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to Administrative Agent (and in such standard electronic format as Administrative Agent shall reasonably specify), for purposes of Administrative Agent’s ongoing tracking and reporting of outstanding Letters of Credit. Administrative Agent shall maintain a record of all outstanding Letters of Credit based upon information provided by the L/C Lenders pursuant to this Section 2.03(o), and such record of Administrative Agent shall, absent manifest error, be deemed a correct and conclusive record of all Letters of Credit outstanding from time to time hereunder. Notwithstanding the foregoing, if and to the extent Administrative Agent determines that there are one or more discrepancies between information provided by any L/C Lender hereunder, Administrative Agent will notify such L/C Lender thereof and such L/C Lender shall endeavor to reconcile any such discrepancy. In addition to and without limiting the foregoing, with respect to commercial documentary Letters of Credit, on the first Business Day of each week the applicable L/C Lender shall deliver to Administrative Agent, by facsimile or electronic mail, a report detailing the daily outstanding commercial documentary Letters of Credit for the previous week for such Letters of Credit.

(p)      Each Lender and Borrower agree that, in paying any drawing under a Letter of Credit, the L/C Lender shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Lenders, the Administrative Agent, any of their respective Affiliates, directors, officers, employees, agents and advisors nor any correspondent, participant or assignee of any L/C Lender shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders, the Required RevolvingTranche Lenders of any applicable Tranche or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence, bad faith or willful misconduct or material breach of any Credit Document as determined by a court of competent jurisdiction by final and non-appealable judgment; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit. Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Lenders, the Administrative Agent, any of their respective Affiliates, directors, officers, employees, agents and advisors nor any correspondent, participant or assignee of the L/C Lenders shall be liable or responsible for any of the matters described in clauses (i) through (viii) of Section 2.03(m); provided, however, that anything in such clauses to the contrary notwithstanding, Borrower may have a claim against a L/C Lender, and a L/C Lender may be liable to Borrower, to the extent, but only to the extent, of any direct, as opposed to indirect, special, punitive, consequential or exemplary, damages suffered by Borrower which Borrower proves were caused by such L/C Lender’s willful misconduct, bad faith or gross negligence or material breach of any Credit Document or such L/C Lender’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit, in each case, as determined by a court of competent jurisdiction by final and non-appealable judgment. In furtherance and not in limitation of the foregoing, the L/C Lenders may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Lenders shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. The L/C Lenders may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication (“SWIFT”) message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.

(q)      Unless otherwise expressly agreed by the applicable L/C Lender and Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the UCP shall apply to each commercial Letter of Credit. Notwithstanding the foregoing, the L/C Lenders shall not be responsible to Borrower for, and the L/C Lenders’ rights and remedies against Borrower shall not be impaired by, any action or inaction of the L/C Lenders required or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this

 

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Agreement, including the law or any order of a jurisdiction where such L/C Lender or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade - International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.

(r)         Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, Borrower shall be obligated to reimburse the applicable L/C Lender hereunder for any and all drawings under such Letter of Credit. Borrower hereby acknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of Borrower, and that Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.

(s)         A Revolving Lender may become an additional L/C Lender hereunder with the approval of the Administrative Agent (such approval not to be unreasonably withheld or delayed), Borrower and such Revolving Lender, pursuant to an agreement with, and in form and substance reasonably satisfactory to, the Administrative Agent, Borrower and such Revolving Lender. The Administrative Agent shall notify the Revolving Lenders of any such additional L/C Lender.

SECTION 2.04.         Termination and Reductions of Commitment.

(a)         (i) In addition to any other mandatory commitment reductions pursuant to this Section 2.04, the aggregate amount of the Term A Facility Commitments outstanding on the Closing Date shall be automatically and permanently reduced to zero at 5:00 p.m., New York time, on the Closing Date (after giving effect to the making of the Term A Facility Loans on such date).

(ii)         In addition to any other mandatory commitment reductions pursuant to this Section 2.04, the aggregate amount of the Term B Facility Commitments shall be automatically and permanently reduced to zero at 5:00 p.m., New York time, on the Closing Date (after giving effect to the making of the Term B Facility Loans on such date).[Reserved].

(iii)         In addition to any other mandatory commitment reductions pursuant to this Section 2.04, the aggregate amount of any Incremental Term Loan Commitments shall be automatically and permanently reduced by the amount of Incremental Term Loans made in respect hereof from time to time.

(iv)         The aggregate amount of the Revolving Commitments of any Tranche shall be automatically and permanently reduced to zero on the R/C Maturity Date applicable to such Tranche, and the L/C Commitments and the Swingline Commitment shall be automatically and permanently reduced to zero on the last R/C Maturity Date.

(v)         [Reserved].

(vi)         [Reserved].

(vii)         (v) In addition to any other mandatory commitment reductions pursuant to this Section 2.04, the aggregate amount of the Term A-35 Facility Commitments outstanding on the ThirdSixth Amendment Effective Date shall be automatically and permanently reduced to zero at 5:00 p.m., New York time, on the ThirdSixth Amendment Effective Date (after giving effect to the modification into, and making of, the Term A-35 Facility Loans on such date).

(viii)         (vi) In addition to any other mandatory commitment reductions pursuant to this Section 2.04, the aggregate amount of the Term A-4B-1 Facility Commitments outstanding on the FifthSixth Amendment Effective Date shall be automatically and permanently reduced to zero at 5:00 p.m., New York time, on the FifthSixth Amendment Effective Date (after giving effect to the modification into, and making of, the Term A-4B-1 Facility Loans on such date).

 

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(ix)         The aggregate amount of the Closing Date Revolving Commitments (as defined in this Agreement prior to giving effect to the Sixth Amendment) were terminated and reduced to zero on the Sixth Amendment Effective Date.

(b)         Borrower shall have the right at any time or from time to time (without premium or penalty except breakage costs (if any) pursuant to Section 5.05) (i) so long as no Revolving Loans, Swingline Loans or L/C Liabilities will be outstanding as of the date specified for termination (after giving effect to all transactions occurring on such date), to terminate the Revolving Commitments in their entirety and (ii) so long as the remaining Total Revolving Commitments will equal or exceed the aggregate amount of outstanding Revolving Loans, Swingline Exposure and L/C Liabilities, to reduce the aggregate amount of the Revolving Commitments (which shall be pro rata among the Revolving Lenders except that the Borrower may reduce or terminate the Closing Date Revolving Commitments without a concurrent reduction or termination of the Fifth Amendment Revolving Commitmentsof any Tranche with an earlier maturity date on a greater than pro rata basis as compared to any other Tranche with a later maturity date than such Tranche being reduced or terminated); provided, however, that (x) Borrower shall give notice of each such termination or reduction as provided in Section 4.05, and (y) each partial reduction shall be in an aggregate amount at least equal to $5.0 million (or any whole multiple of $1.0 million in excess thereof) or, if less, the remaining Unutilized R/C Commitments.

(c)         Any Commitment once terminated or reduced may not be reinstated.

(d)         Each reduction or termination of any of the Commitments applicable to any Tranche pursuant to this Section 2.04 shall be applied ratably among the Lenders with such a Commitment, as the case may be, in accordance with their respective Commitment, as applicable.