UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549



FORM 8-K





CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): December 6, 2019





CENTURY CASINOS, INC.

(Exact Name of Registrant as specified in its charter)





 

 

Delaware

0-22900

84-1271317

(State or other jurisdiction

(Commission

(I.R.S. Employer

of incorporation)

File Number)

Identification Number)



 



 

455 E. Pikes Peak Ave., Suite 210, Colorado Springs, Colorado

80903

(Address of principal executive offices)

(Zip Code)



 

Registrant’s telephone number, including area code:

719-527-8300



Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:



 Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)



 Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)



 Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))



 Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))



Securities registered pursuant to Section 12(b) of the Act:



 

 

Title of each class

Trading Symbol(s)

Name of each exchange on which registered

Common Stock, $0.01 Per Share Par Value

CNTY

Nasdaq Capital Market, Inc.



Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act (17 CFR 230.405) or Rule 12b-2 of the Exchange Act (17 CFR 240.12b‑2).



Emerging growth company 



If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. 




 



Item 1.01Entry into a Material Definitive Agreement.



On December 6, 2019 (the “Closing Date”), Century Casinos, Inc. (the “Company”) entered into a Credit Agreement (the “Credit Agreement”), dated as of December 6, 2019, by and among the Company, as borrower, the subsidiary guarantors party thereto, Macquarie Capital Funding LLC, as swingline lender, administrative agent (the “Administrative Agent”) and collateral agent, Macquarie Capital (USA) Inc., as sole lead arranger and sole bookrunner, and the Lenders and L/C Lenders party thereto.  The Credit Agreement replaces the BMO Credit Agreement (as defined below).  The Credit Agreement provides for a $170 million term loan (the “Term Loan”) and a $10 million revolving credit facility (the “Revolving Facility”).  The Company drew $170 million under the Term Loan on the Closing Date.  Proceeds from the Term Loan were used to fund the Acquisition (as defined below), for the repayment of approximately $52 million outstanding under the BMO Credit Agreement and for general working capital and corporate purposes. The Company did not draw on the Revolving Facility on the Closing Date.



The Term Loan matures on December 6, 2026, and the Revolving Facility matures on December 6, 2024.  The Revolving Facility includes up to $5 million available for the issuance of letters of credit.  The Term Loan requires scheduled quarterly payments in amounts equal to 0.25% of the original aggregate principal amount of the Term Loan, with the balance due at maturity.



Borrowings under the Credit Agreement, bear interest at a rate equal to, at the Company’s option, either (a) the LIBO Rate (as defined in the Credit Agreement), plus an applicable margin (each loan, being a “LIBOR Loan”) or (b) the Alternate Base Rate (as defined in the Credit Agreement) (each loan, being a “ABR Loan”).  The applicable margin is currently 5.50% per annum, with respect to LIBOR Loans and 4.50% per annum, with respect to ABR Loans.  Beginning in the second quarter of 2020, (1) so long as the Consolidated First Lien Net Leverage Ratio (as defined in the Credit Agreement) of the Company is greater than 2.75 to 1.00, the applicable margin for LIBOR Loans will be 4.25% per annum, and for ABR Loans will be 3.25% per annum, and (2) so long as the Consolidated First Lien Net Leverage Ratio of the Company is less than or equal to 2.75 to 1.00, the applicable margin for LIBOR Loans will be 4.00% per annum, and for ABR Loans will be 3.00% per annum.



In addition, on a quarterly basis, the Company is required to pay each lender under the Revolving Facility a commitment fee in respect of any unused commitments under the Revolving Facility in the amount of 0.50% of the principal amount of unused commitments of such lender, subject to a stepdown to 0.375% based upon the Company’s Consolidated First Lien Net Leverage Ratio. The Company is also required to pay letter of credit participation fees equal to the applicable margin then in effect for LIBOR Loans multiplied by the average aggregate daily maximum amount available to be drawn under all letters of credit, plus such letter of credit issuer’s customary documentary and processing fees and charges and a fronting fee in an amount equal to 0.125% of the face amount of such letter of credit.  The Company is also required to pay customary agency fees.



The Credit Agreement requires the Company to prepay the Term Loan, subject to certain exceptions, with:

• 100% of the net cash proceeds of certain non-ordinary course asset sales or certain casualty events, subject to certain exceptions; and

• 50% of the Company’s annual Excess Cash Flow (as defined in the Credit Agreement) (which percentage will be reduced to 25% if the Consolidated First Lien Net Leverage Ratio is greater than 2.25 to 1.00 but less than or equal to 2.75 to 1.00, and to 0% if the Consolidated First Lien Net Leverage Ratio is less than or equal to 2.25 to 1.00).



The Credit Agreement provides that the Term Loan may be prepaid, subject to a prepayment premium in an amount equal to 1.00% of the principal amount of the Term Loan if such event occurs on or before the date that is six months following the Closing Date.



The borrowings under the Credit Agreement are guaranteed by the material subsidiaries of the Company, subject to certain exceptions, and are secured by a pledge (and, with respect to real property, mortgage) of substantially all of the existing and future property and assets of the Company and the guarantors, subject to certain exceptions.




 

The Credit Agreement contains customary representations and warranties, affirmative, negative and financial covenants, and events of default. All future borrowings under the Credit Agreement are subject to the satisfaction of customary conditions, including the absence of a default and the accuracy of representations and warranties.



The foregoing description of the Credit Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Credit Agreement, which is incorporated herein by reference as Exhibit 10.1 to this Current Report on Form 8-K.



Item 1.02Termination of a Material Definitive Agreement.



Concurrently with entering into the Credit Agreement described above, on the Closing Date, the Company terminated and repaid all outstanding amounts due under the Third Amended and Restated Credit Agreement, dated June 30, 2018, as amended, by and among Century Resorts Alberta Inc., Century Casino St. Albert Inc., Century Mile Inc. and the Bank of Montreal (as amended, the “BMO Credit Agreement”).  The BMO Credit Agreement provided terms loans and revolving credit facilities to the Company totaling up to CAD 102.2 million, of which CAD 68.4 million was outstanding as of the Closing Date.



Item 2.01 Completion of Acquisition or Disposition of Assets.



On the Closing Date, the Company completed its previously announced acquisition (the “Acquisition”) of the operations of Isle Casino Cape Girardeau (“Cape Girardeau”), located in Cape Girardeau, Missouri, Lady Luck Caruthersville (“Caruthersville”), located in Caruthersville, Missouri, and Mountaineer Casino, Racetrack and Resort (“Mountaineer”, and together with Cape Girardeau and Caruthersville, the “Casinos”), located in New Cumberland, West Virginia, from Eldorado Resorts, Inc. for an aggregate purchase price of approximately $107.0 million (subject to an adjustment based on the Casinos’ working capital and cash at closing), subject to the terms and conditions set forth in the Equity Purchase Agreement (the “Purchase Agreement”), dated as of June 17, 2019, by and among the Company, MTR Gaming Group, Inc. (“MTR”), Isle of Capri Casinos LLC (“IOC”, and together with MTR, the “Sellers”), VICI Properties L.P. (“PropCo”), an affiliate of VICI Properties Inc., and Eldorado Resorts, Inc. The Acquisition was financed through borrowings under the Company’s Credit Agreement, as described in Item 1.01 above.



Pursuant to the Purchase Agreement, on the Closing Date, MTR sold all of the equity interests in its wholly-owned subsidiary, Mountaineer Park, Inc. (“MPI”), to the Company and IOC sold, directly or indirectly, all of the limited liability company interests in its wholly-owned subsidiaries, IOC-Caruthersville, LLC (“IOC-C”) and IOC-Cape Girardeau, LLC (“IOC-CG”), to the Company, resulting in the Company’s acquisition of the Casinos.  Immediately prior to such sale, MTR caused MPI to sell the Mountaineer real estate assets to PropCo and IOC caused IOC-C and IOC-CG to sell the Caruthersville and Cape Girardeau real estate assets, respectively, to PropCo pursuant to a Real Estate Purchase Agreement, resulting in PropCo’s ownership of the real estate assets of the Casinos.



On the Closing Date, the Company and PropCo entered into a triple net lease agreement (the “Lease”) for the three Casino properties.  The Lease has an initial annual rent of approximately $25.0 million and an initial term of 15 years, with four five-year renewal options.



The foregoing description of the Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Purchase Agreement, which is filed as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed on June 17, 2019 and incorporated herein by reference.



Item 2.03Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.



The information set forth in Item 1.01 above is incorporated by reference into this Item 2.03.




 

Item 7.01     Regulation FD Disclosure.



On the Closing Date, the Company issued a press release announcing the completion of the Acquisition and the transactions related thereto as well as the Company’s entering into the Credit Agreement.  A copy of the press release is furnished as Exhibit 99.1 of this Current Report on Form 8-K.



The information under Item 7.01 and in Exhibit 99.1 of this Current Report on Form 8-K is being furnished and not “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section. The information under Item 7.01 and in Exhibit 99.1 of this report are not incorporated by reference into any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as expressly set forth by specific reference in such a filing.



Item 9.01      Financial Statements and Exhibits.



(a)  Financial statements of businesses acquired. The Company intends to file the financial statements required by Item 9.01(a), if required, in an amendment to this Current Report on Form 8-K no later than 71 days after the required filing date for this Current Report on Form 8-K.



(b)  Pro forma financial information. The Company intends to file the pro forma financial information required by Item 9.01(b), if required, in an amendment to this Current Report on Form 8-K no later than 71 days after the required filing date for this Current Report on Form 8-K. 



(d)  Exhibits





 

 

Exhibit No.

 

Description

10.1

 

Credit Agreement, dated as of December 6, 2019, among the Company, as borrower, the Company’s subsidiaries party thereto, Macquarie Capital Funding LLC, as swingline lender, administrative agent and collateral agent, Macquarie Capital (USA) Inc., as sole lead arranger and sole bookrunner, and the Lenders and L/C Lenders party thereto.

99.1

 

Century Casinos, Inc. Press Release dated December 6, 2019







SIGNATURE



Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.





 



Century Casinos, Inc.



 

Date:  December 9, 2019

By: /s/ Margaret Stapleton



Margaret Stapleton



Chief Financial Officer




Exhibit 101 - Macquarie Agreement

Exhibit 10.1







CREDIT AGREEMENT

Dated as of December 6, 2019,

among 

CENTURY CASINOS, INC.,
as Borrower,

THE SUBSIDIARIES OF BORROWER PARTY HERETO,
as Guarantors,

THE LENDERS PARTY HERETO,

THE L/C LENDERS PARTY HERETO,

MACQUARIE CAPITAL FUNDING LLC,

as Administrative Agent and as Collateral Agent,





and




MACQUARIE CAPITAL (USA) INC.,

as Sole Lead Arranger and Sole Bookrunner



 


 

TABLE OF CONTENTS

Page

ARTICLE I.

DEFINITIONS, ACCOUNTING MATTERS AND RULES OF CONSTRUCTION

SECTION 1.01................................................Certain Defined Terms1

SECTION 1.02........Accounting Terms and Determinations63

SECTION 1.03..................................Classes and Types of Loans64

SECTION 1.04................................................Rules of Construction.64

SECTION 1.05..............................................Pro Forma Calculations65

SECTION 1.06..........................................Letter of Credit Amounts66

SECTION 1.07..........................Limited Condition Transactions66

SECTION 1.08.Ratio Calculations; Negative Covenant Reclassification67

SECTION 1.09................................................................................Divisions.69

ARTICLE II.

CREDITS

SECTION 2.01............................................................................................Loans.69

SECTION 2.02............................................................................Borrowings72

SECTION 2.03..............................................................Letters of Credit.72

SECTION 2.04.Termination and Reductions of Commitment.80

SECTION 2.05................................................................................................Fees.81

SECTION 2.06................................................................Lending Offices82

SECTION 2.07............................Several Obligations of Lenders82

SECTION 2.08..................................................................Notes; Register.82

SECTION 2.09.Optional Prepayments and Conversions or Continuations of Loans.82

SECTION 2.10..........................................Mandatory Prepayments.83

SECTION 2.11..........................................Replacement of Lenders.88

SECTION 2.12......................Incremental Loan Commitments.89

SECTION 2.13....Extensions of Loans and Commitments.94

SECTION 2.14..............................Defaulting Lender Provisions.97

SECTION 2.15........................................Refinancing Amendments.99

SECTION 2.16..................................................................Cash Collateral.101

ARTICLE III.

PAYMENTS OF PRINCIPAL AND INTEREST

SECTION 3.01..................................................Repayment of Loans.102

SECTION 3.02......................................................................................Interest.103

ARTICLE IV.

PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.

SECTION 4.01................................................................................Payments.103

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Page

SECTION 4.02........................................................Pro Rata Treatment104

SECTION 4.03......................................................................Computations104

SECTION 4.04..........................................................Minimum Amounts105

SECTION 4.05..................................................................Certain Notices105

SECTION 4.06.Non-Receipt of Funds by Administrative Agent106

SECTION 4.07.Right of Setoff, Sharing of Payments; Etc.106

ARTICLE V.

YIELD PROTECTION, ETC.

SECTION 5.01..............................................................Increased Costs.108

SECTION 5.02................Inability To Determine Interest Rate109

SECTION 5.03....................................................................................Illegality110

SECTION 5.04................................Treatment of Affected Loans110

SECTION 5.05....................................................................Compensation.110

SECTION 5.06....................................................................Net Payments.111

SECTION 5.07........................................Benchmark Replacement.114

ARTICLE VI.

GUARANTEES

SECTION 6.01..................................................................The Guarantees117

SECTION 6.02........................................Obligations Unconditional118

SECTION 6.03......................................................................Reinstatement120

SECTION 6.04....................................Subrogation; Subordination120

SECTION 6.05................................................................................Remedies120

SECTION 6.06..................................................Continuing Guarantee120

SECTION 6.07.General Limitation on Guarantee Obligations120

SECTION 6.08................................................Release of Guarantors121

SECTION 6.09..................................................................................Keepwell121

SECTION 6.10....................................................Right of Contribution121

SECTION 6.11....................................................Canadian Guarantors122

ARTICLE VII.

CONDITIONS PRECEDENT

SECTION 7.01..Conditions to Initial Extensions of Credit.122

SECTION 7.02........Conditions to All Extensions of Credit126

ARTICLE VIII.

REPRESENTATIONS AND WARRANTIES

SECTION 8.01.Corporate Existence; Compliance with Law127

SECTION 8.02............................................Financial Condition; Etc127

SECTION 8.03..................................................................................Litigation127

SECTION 8.04..............................................No Breach; No Default.127

SECTION 8.05............................................................................................Action128

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Page

SECTION 8.06................................................................................Approvals128

SECTION 8.07.ERISA, Foreign Employee Benefit Matters and Labor Matters128

SECTION 8.08..............................................................................................Taxes129

SECTION 8.09........................................Investment Company Act.130

SECTION 8.10................................................Environmental Matters130

SECTION 8.11..............................................................Use of Proceeds.131

SECTION 8.12..........................................................................Subsidiaries.131

SECTION 8.13..............................Ownership of Property; Liens132

SECTION 8.14.Security Interest; Absence of Financing Statements; Etc132

SECTION 8.15....................................................Licenses and Permits132

SECTION 8.16................................................................................Disclosure133

SECTION 8.17..................................................................................Solvency133

SECTION 8.18..........................................................Senior Obligations133

SECTION 8.19........................................................Intellectual Property133

SECTION 8.20..............................................................................[Reserved]134

SECTION 8.21..............................................................................[Reserved]134

SECTION 8.22..................................................................................Insurance134

SECTION 8.23............................................................................Real Estate.134

SECTION 8.24......................................................................................Leases.134

SECTION 8.25..........................................Mortgaged Real Property135

SECTION 8.26..............................................Material Adverse Effect135

SECTION 8.27.Anti-Corruption Laws, Anti-Terrorism Laws and Sanctions135

ARTICLE IX.

AFFIRMATIVE COVENANTS

SECTION 9.01..........................Existence; Business Properties.136

SECTION 9.02................................................................................Insurance.137

SECTION 9.03................Taxes; Performance of Obligations137

SECTION 9.04..........................................Financial Statements, Etc138

SECTION 9.05.Maintaining Records; Access to Properties and Inspections141

SECTION 9.06................................................................Use of Proceeds142

SECTION 9.07............Compliance with Environmental Law142

SECTION 9.08..........Pledge or Mortgage of Real Property.143

SECTION 9.09........Security Interests; Further Assurances.144

SECTION 9.10..........................................................Material Contracts.145

SECTION 9.11..........................................Additional Credit Parties.145

SECTION 9.12.Limitation on Designations of Unrestricted Subsidiaries.146

SECTION 9.13.Limitation on Designation of Immaterial Subsidiaries.147

SECTION 9.14......................................................................................Ratings147

SECTION 9.15....................................................Post-Closing Matters148

ARTICLE X.

NEGATIVE COVENANTS

SECTION 10.01......................................................................Indebtedness149

SECTION 10.02..............................................................................................Liens152

SECTION 10.03............................................................................[Reserved]156

SECTION 10.04................Investments, Loans and Advances156

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Page

SECTION 10.05.Mergers, Consolidations and Sales of Assets159

SECTION 10.06....................................................Restricted Payments162

SECTION 10.07....................................Transactions with Affiliates163

SECTION 10.08........................................................Financial Covenant165

SECTION 10.09.Certain Payments of Indebtedness; Amendments to Certain Agreements165

SECTION 10.10.Limitation on Certain Restrictions Affecting Subsidiaries166

SECTION 10.11........................Limitation on Lines of Business168

SECTION 10.12..................................................Limitation on Vessels168

SECTION 10.13..........Limitation on Changes to Fiscal Year168

SECTION 10.14..........................................Canadian Pension Plans.168

ARTICLE XI.

EVENTS OF DEFAULT

SECTION 11.01............................................................Events of Default168

SECTION 11.02..........................................Application of Proceeds172

ARTICLE XII.

AGENTS

SECTION 12.01........................................................................Appointment173

SECTION 12.02........................................................Rights as a Lender173

SECTION 12.03............................................Exculpatory Provisions173

SECTION 12.04........................................................Reliance by Agents174

SECTION 12.05....................................................Delegation of Duties175

SECTION 12.06.Resignation of Administrative Agent and Collateral Agent175

SECTION 12.07.Nonreliance on Agents and Other Lenders177

SECTION 12.08................................................................Indemnification177

SECTION 12.09..............................................................No Other Duties177

SECTION 12.10....................................................................................Holders178

SECTION 12.11.Administrative Agent May File Proofs of Claim178

SECTION 12.12............................................................Collateral Matters178

SECTION 12.13..............................................................Withholding Tax179

SECTION 12.14.Secured Cash Management Agreements and Credit Swap Contracts179

SECTION 12.15....................................Know Your Customer, Etc.179

ARTICLE XIII.

MISCELLANEOUS

SECTION 13.01..........................................................................................Waiver180

SECTION 13.02....................................................................................Notices180

SECTION 13.03........................Expenses, Indemnification, Etc.182

SECTION 13.04........................................Amendments and Waiver184

SECTION 13.05.Benefit of Agreement; Assignments; Participations190

SECTION 13.06....................................................................................Survival195

SECTION 13.07..................................................................................Captions195

SECTION 13.08.Counterparts; Interpretation; Effectiveness195

SECTION 13.09.Governing Law; Submission to Jurisdiction; Waivers; Etc.195

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Page

SECTION 13.10....................................................................Confidentiality197

SECTION 13.11.Independence of Representations, Warranties and Covenants197

SECTION 13.12..........................................................................Severability198

SECTION 13.13....................................................................Gaming Laws198

SECTION 13.14......................................................USA PATRIOT Act199

SECTION 13.15............................................................Waiver of Claims199

SECTION 13.16..No Advisory or Fiduciary Responsibility199

SECTION 13.17....................................................................Lender Action200

SECTION 13.18............................................Interest Rate Limitation200

SECTION 13.19......................................................Payments Set Aside200

SECTION 13.20.Acknowledgement and Consent to Bail-In of EEA Financial Institutions201

SECTION 13.21.Acknowledgement Regarding Any Supported QFC.201

SECTION 13.22............................................Certain ERISA Matters.202

SECTION 13.23........................................Joint and Several Liability203

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ANNEXES:

ANNEX A‑1-Revolving Commitments

ANNEX A‑2-Term B Facility Commitments



SCHEDULES:

SCHEDULE 1.01(A)-Excluded Subsidiary Agreements

SCHEDULE 1.01(B)-Guarantors

SCHEDULE 1.01(C)-Mortgaged Real Property



SCHEDULE 7.01-Jurisdictions of Local Counsel Opinions

SCHEDULE 8.03-Litigation

SCHEDULE 8.07(a)-ERISA

SCHEDULE 8.07(b)-Canadian Pension Plans

SCHEDULE 8.12(a)-Subsidiaries

SCHEDULE 8.12(b)-Immaterial Subsidiaries

SCHEDULE 8.12(c)-Unrestricted Subsidiaries

SCHEDULE 8.13(a)-Ownership

SCHEDULE 8.15-Licenses and Permits

SCHEDULE 8.19-Intellectual Property

SCHEDULE 8.23(a)-Real Property

SCHEDULE 8.23(b)-Real Property Takings, Etc.

SCHEDULE 8.24(a)-Leases

SCHEDULE 8.25(a)-No Certificates of Occupancy; Violations, Etc.

SCHEDULE 8.25(b)-Encroachment, Boundary, Location, Possession Disputes



SCHEDULE 9.15-Post-Closing Matters

SCHEDULE 10.01-Existing Indebtedness

SCHEDULE 10.02-Certain Existing Liens

SCHEDULE 10.04-Investments

SCHEDULE 10.07-Transactions with Affiliates

SCHEDULE 13.02-Addresses for Notice



EXHIBITS:

EXHIBIT A‑1-Form of Revolving Note

EXHIBIT A‑2-Form of Term B Facility Note

EXHIBIT A‑3-Form of Swingline Note

EXHIBIT B-Form of Notice of Borrowing

EXHIBIT C-1-Form of Notice of Continuation/Conversion

EXHIBIT C-2-Form of Notice of Prepayment

EXHIBIT D-Forms of U.S. Tax Compliance Certificate

EXHIBIT E-Form of Intercompany Promissory Note

EXHIBIT F-Form of Corporate Securities and Finance Compliance Affidavit

EXHIBIT G-Form of Solvency Certificate

EXHIBIT H-Form of Security Agreement (NY)

EXHIBIT H-1-Form of Security Agreement (Alberta)

EXHIBIT I-1-Form of Mortgage  (U.S.)

EXHIBIT I-2-Form of Mortgage (Alberta)

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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-[Reserved]

EXHIBIT V -Form of Compliance Certificate



 

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CREDIT AGREEMENT, dated as of December 6, 2019 (this Agreement), among CENTURY CASINOS, INC., a Delaware corporation (Borrower); the SUBSIDIARY GUARANTORS party hereto from time to time; the LENDERS from time to time party hereto; the L/C LENDERS party hereto; MACQUARIE CAPITAL FUNDING LLC, as swingline lender (in such capacity, together with its successors in such capacity, Swingline Lender); MACQUARIE CAPITAL FUNDING LLC, as administrative agent (in such capacity, together with its successors in such capacity, Administrative Agent); and MACQUARIE CAPITAL FUNDING LLC, 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 Lenders have indicated their 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

Certain Defined Terms

.  As used herein, the following terms shall have the following meanings:

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).

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).

Affiliate shall mean, 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 Closing Date and their respective Affiliates (determined as provided herein without regard to this proviso). 

Agent shall mean any of Administrative Agent, Auction Manager, Collateral Agent, and/or Lead Arranger, 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 shall mean, 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 Indebtedness is greater than the LIBO Rate floor for the Term B Facility and is in excess of the three-month LIBO Rate at the time of incurrence of such Indebtedness) or Alternate Base Rate floor (to the extent the Alternate Base Rate floor applicable to the applicable Indebtedness is greater than the Alternate Base Rate floor for the Term B Facility and is in excess of the Alternate Base Rate at the time of incurrence of such Indebtedness) 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); provided, further, that All-In Yield shall not include arrangement, structuring, commitment, underwriting, amendment or other similar fees (regardless of whether paid or shared in whole or in part to any or all lenders) or other fees not paid generally to all lenders of such Indebtedness; provided, further, that All-In Yield shall include any amendment to the relevant interest rate margins and interest rate floors that became effective after the Closing Date but prior to the applicable date of determination and, in the case of an applicable pricing grid or interest rate margins subject to step-ups or step-downs, shall be determined on the basis of the applicable interest rate margin level at the relevant time of determination.  For the purposes of determining the All-In Yield of any fixed-rate Indebtedness, at Borrowers option, such Indebtedness may be swapped to a floating rate on a customary matched maturity basis.

Alternate Base Rate shall mean, for any day, a rate per annum, not less than zero, equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus ½ 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.  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. 

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, including, but not limited to, the Corruption of Foreign Public Officials Act (Canada) and the Freezing Assets of Corrupt Foreign Officials Act (Canada), as amended.

Anti-Terrorism Laws means any applicable Requirement of Law relating to terrorism, economic sanctions or money laundering, including Executive Order No. 13224, effective September 24, 2001, The Currency and Foreign Transactions Reporting Act (31 U.S.C. §§ 5311‑5330), the Trading With the Enemy Act (50 U.S.C. §§ 1-44, as amended), the International Emergency Economic Powers Act (50 U.S.C. § 1701 et seq.), the PATRIOT Act, the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), Part II.1 of the Criminal Code (Canada), the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism (Canada).

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 Applicable ECF Percentage shall mean, for the applicable Excess Cash Flow Period, (a) 75% if the Consolidated First Lien Net Leverage Ratio as of the last day of such Excess Cash Flow Period is greater than 2.75 to 1.00, (b) 50% if the Consolidated First Lien Net Leverage Ratio as of the last day of such Excess Cash Flow Period is equal to or less than 2.75 to 1.00 and greater than 2.50 to 1.00, (c) 25% if the Consolidated First Lien Net Leverage Ratio as of the last day of such Excess Cash Flow Period is equal to or less than 2.50 to 1.00 and greater than 2.25 to 1.00 and  (d) 0% if the Consolidated First Lien Net Leverage Ratio as of the last day of such Excess Cash Flow Period is equal to or less than 2.25 to 1.00.

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 Closing Date, designated for such Type of Loan on Annexes A‑1 and A‑2 hereof, (b) set forth on such Lenders signature page to an Incremental Joinder Agreement for any Lender making any Incremental Commitment pursuant to Section 2.12, (c) set forth on such Lenders 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 or account 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 for each Type and Class of Loan (I) that constitute Term B Facility Loans,  5.50% per annum, with respect to LIBOR Loans and 4.50% per annum, with respect to ABR Loans, and (II) that constitute Revolving Loans:  (a) prior to the Initial Financial Statement Delivery Date, 4.25%  per annum, with respect to LIBOR Loans and 3.25% per annum, with respect to ABR Loans; and (b) on and after the Initial Financial Statement Delivery Date, (1) so long as the Consolidated First Lien Net Leverage Ratio of Borrower determined as of the most recent Calculation Date and set forth in the most recently delivered Section 9.04 Financials is greater than 2.75 to 1.00, (A) for LIBOR Loans, 4.25% per annum, and (B) for ABR Loans, 3.25% per annum and (2) so long as the Consolidated First Lien Net Leverage Ratio determined as of the most recent Calculation Date and set forth in the most recently delivered Section 9.04 Financials is less than or equal to 2.75 to 1.00, (A) for LIBOR Loans, 4.00% per annum, and (B) for ABR Loans, 3.00% per annum.

After the Initial Financial Statement Delivery Date, any change in the Consolidated First Lien Net Leverage Ratio shall be effective to adjust the Applicable Margin with respect to Revolving Loans 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 Revolving Lenders have directed the application of the Applicable Margin in clause (II)(a) above, such ratio for Revolving Loans shall be deemed to be the Applicable Margin in clause (II)(a) above 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 Revolving Lenders have otherwise agreed that such clause (II)(a) is no longer applicable. In the event of an Inaccuracy Determination, and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin for any Tranche for any period (an Inaccurate Applicable Margin Period) than the Applicable Margin applied for such Inaccurate Applicable Margin Period, then Borrower shall promptly, with respect to each impacted Tranche, (i) deliver to 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 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

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promptly applied by Administrative Agent in accordance with Section 4.01.  It is acknowledged and agreed that nothing contained herein shall limit the rights of 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.

 Approved Fund shall mean 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 Closing 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 Company that is not a Credit Party, 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 Borrower and the Restricted Subsidiaries taken as a whole, (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, or such other form as is reasonably acceptable to Administrative Agent.

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

Auction Manager shall mean Macquarie, 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; provided, that, notwithstanding anything herein to the contrary, Macquarie shall in no event be obligated to act as the 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 the sum of (without duplication):  

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(a) $15 million;  plus



(b) an amount (which shall not be less than zero) equal to the sum of (i) the Retained Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period multiplied by the amount of Excess Cash Flow for such Excess Cash Flow Period, minus (ii) the aggregate amount of Indebtedness deducted from the Applicable ECF Percentage of Excess Cash Flow pursuant to Section 2.10(a)(iv)(y) with respect to such Excess Cash Flow Period,  minus (iii) the aggregate amount Loans excluded from prepayment by operation of Section 2.10(a)(vi);  plus

(c) in the event of (i) the Revocation of a Subsidiary that was designated as an Unrestricted Subsidiary, (ii) the merger, consolidation or amalgamation 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 of an Unrestricted Subsidiary to, or liquidation 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, in each case, to the extent such Investments were made in reliance on the Available Amount and not to exceed the original amount of such Investments applied to reduce the Available Amount;  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

(d) an amount equal to the returns or refunds of Qualifying Investments made by Borrower or any of its Restricted Subsidiaries (and not to exceed the original amount of such Qualifying Investments) to the extent such returns or refunds are received in cash by Borrower or a Restricted Subsidiary;  plus

(e) the aggregate amount of Equity Issuance Proceeds (including upon conversion or exchange of a debt instrument or Disqualified Capital Stock issued after the Closing Date into or for any Equity Interests (other than Disqualified Capital Stock) but excluding Excluded Contributions) received by Borrower from Permitted Equity Issuances (other than Permitted Equity Issuances among Borrower and its Restricted Subsidiaries) after the Closing Date and on or prior to such date; plus

(f) the aggregate fair market value of assets or Property acquired in exchange for Equity Interests (other than Disqualified Capital Stock and Excluded Contributions) of Borrower (other than Permitted Equity Issuances among Borrower and its Restricted Subsidiaries) after the Closing Date and on or prior to such date;  plus

(g) the aggregate principal amount of debt instruments or Disqualified Capital Stock issued after the Closing Date that are converted into or exchanged for any Equity Interests (other than Disqualified Capital Stock) by Borrower after the Closing Date and on or prior to such date, together with the fair market value of any assets or Property received in such conversion or exchange; plus

(h) the amount of any Declined Amounts; minus

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(i) 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 Closing Date and on or prior to such date.

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 EEA Financial Institution.

Bail-In Legislation shall mean, 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 for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

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.

Beneficial Ownership Certification shall mean a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.

Beneficial Ownership Regulation shall mean 31 C.F.R. § 1010.230.

 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.

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 shall mean the last day of the most recent Test Period.

Canadian Benefit Plan” shall mean any pension, retirement, savings, profit sharing, health, medical, dental, disability, life insurance, welfare or other employee benefit plan, program, policy or practice, whether written or oral, funded or unfunded, registered or unregistered, which is sponsored, maintained or contributed to or required to be contributed to by any Credit Party or under which any Credit Party has any actual or potential liability in respect of its employees or former employees in Canada, other

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than (a) a Canadian Pension Plan, or (b) a plan that is maintained by a Governmental Authority to which any Credit Party is required to contribute pursuant to statute, including the Canada Pension Plan or Quebec Pension Plan.

Canadian Defined Benefit Plan” shall mean a Canadian Pension Plan which contains a “defined benefit provision”, as defined in subsection 147.1(1) of the Canada ITA.

Canadian Guarantor” means any Guarantor that is organized under the laws of Canada or any province or territory thereof.

Canadian Multiemployer Plan” shall mean a Canadian Pension Plan that is a “multi-employer plan”, as that term is defined in Regulation 8500(1) of the Canada ITA to which any Credit Party is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation to make contributions.

Canadian Pension Benefits Legislation” shall mean the Pension Benefits Standards Act (Canada), and all provincial counterparts thereof (including, without limitation the Employment Pension Plans Act (Alberta)), in each case as amended or replaced from time to time.

Canadian Pension Event” shall mean the occurrence of any of the following: (a) failure by any Credit Party to make any required contribution in a timely manner to any Canadian Pension Plan in accordance with the plan’s terms and applicable laws; (b) any statutory deemed trust or Lien arising in connection with a Canadian Pension Plan; (c) the withdrawal of any Credit Party from a Canadian Multiemployer Plan, (d) the termination or wind-up of any Canadian Pension Plan (in whole or in part); or (e) any other event respecting any Canadian Pension Plan which could reasonably be expected to result in the termination or wind-up of a Canadian Pension Plan (in whole or in part) or adversely affect the tax status of any such Canadian Pension Plan. 

Canadian Pension Plan” shall mean a “registered pension plan”, as that term is defined in subsection 248(1) of the Canada ITA, which is or was sponsored, administered or contributed to, or required to be contributed to by any Credit Party or under which any Credit Party has any actual or potential liability, whether existing on the Closing Date or which would be considered a Canadian Pension Plan if assumed, adopted, participated in or contributed to by a Credit Party thereafter.

Canadian Subsidiary” means any Subsidiary that is organized under the laws of Canada or any province or territory thereof.

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

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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 on the balance sheet of that Person; provided, however, that for the avoidance of doubt, the Sale Leaseback, 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, the Sale Leaseback, 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 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 Moodys, 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 Moodys (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); (h) solely with respect to any Foreign Subsidiary, (i) marketable direct obligations

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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 Moodys (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; (i) such local currencies held by Borrower or any Restricted Subsidiary from time to time in the ordinary course of business; or (j) investment funds investing at least 90% of their assets in securities of the types described in clauses (a) through (i) above.

Cash Management Agreement shall mean 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, 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, 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.

CFC shall mean a controlled foreign corporation within the meaning of Section 957 of the Code, other than any Subsidiary that is a Canadian Subsidiary.

CFC Holdco” shall mean any Subsidiary that has no material assets other than Equity Interests (or Equity Interests and Indebtedness) of one or more Subsidiaries of Borrower that are CFCs.

 Change in Law shall mean 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

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all requests, rules, guidelines or directives thereunder or issued in 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, issued or implemented.

Change of Control shall be deemed to have occurred if any Person or group (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act (but excluding 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), 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 Voting Stock representing more than 35%  of the voting power of the total outstanding Voting Stock of Borrower (and taking into account all such securities that such Person or group has the right to acquire pursuant to any option right).    

Charges has the meaning set forth in Section 13.18.

CIPO” means the Canadian Intellectual Property Office.

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 December 6, 2019.

Closing Date Refinancing shall mean the repayment and replacement of all loans and commitments under the documents relating to the Existing Indebtedness, and the termination and discharge of all related guarantees and security in respect thereof.

Closing Date Revolving Commitment shall mean a Revolving Commitment established on the Closing Date.

Closing Date Revolving Facility shall mean the credit facility comprising the Closing Date Revolving Commitments and any Incremental Existing Tranche Revolving Commitments of the same Tranche.

Code shall mean the Internal Revenue Code of 1986, as amended.

Collateral shall mean all of the Pledged Collateral, the Mortgaged Real Property, all Property encumbered pursuant to Sections 9.08, 9.11 and 9.15, and all other Property of a Credit Party 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 Collateral Agent pursuant to the Security Documents, unless and until such time as such assets or Property are or are required by the Credit Documents to again become subject to a Lien in favor of 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).

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



Commitment Fee shall have the meaning provided in Section 2.05.

Commitment Fee Rate” shall mean, with respect to any Tranche of Revolving Commitments, a rate per annum equal to 0.50%; provided that, on and after the Initial Financial Statement Delivery Date, (1) so long as the Consolidated First Lien Net Leverage Ratio of Borrower determined as of the most recent Calculation Date and set forth in the most recently delivered Section 9.04 Financials is greater than 2.75 to 1.00, the Commitment Fee Rate for the applicable period shall be 0.50% per annum and (2) so long as the Consolidated First Lien Net Leverage Ratio determined as of the most recent Calculation Date and set forth in the most recently delivered Section 9.04 Financials is less than or equal to 2.75 to 1.00, the Commitment Fee Rate for the applicable period shall be 0.375% per annum.

Any increase or decrease in the Commitment Fee Rate resulting from a change in the Consolidated First Lien Net Leverage Ratio shall become effective as of the first Business Day immediately following the most recent delivery of Section 9.04 Financials, in accordance with the paragraph above. 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 Revolving Lenders have directed the application of the Commitment Fee Rate described in clause (1) above, such ratio shall be deemed to be at the Commitment Fee Rate described in clause (1) above 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 Revolving Lenders have otherwise agreed that such Commitment Fee Rate is no longer applicable, as applicable. 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 Commitment Fee Rate for any period (an “Inaccurate Applicable Fee Percentage Period”) than the Commitment Fee Rate applied for such Inaccurate Applicable Fee Percentage Period, then Borrower shall promptly (i) deliver to Administrative Agent corrected Section 9.04 Financials for such Inaccurate Applicable Fee Percentage Period, (ii) determine the Commitment Fee Rate for such Inaccurate Applicable Fee Percentage Period based upon the corrected Section 9.04 Financials and (iii) pay to Administrative Agent the accrued additional commitment fee owing as a result of such increased Commitment Fee Rate for such Inaccurate Applicable Fee Percentage Period, which payment shall be promptly applied by Administrative Agent in accordance with Section 4.01. It is acknowledged and agreed that nothing contained herein shall limit the rights of Administrative Agent and the Lenders under the Credit Documents, including their rights under Article XI and their other respective rights under this Agreement.

Commitment Letter shall mean the Commitment Letter, dated as of June 17, 2019,  by and between Borrower, the committed lenders thereunder and the Lead Arranger.

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 shall mean 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.

 Consolidated Current Assets shall mean, with respect to any Person at any date, the total consolidated current assets of such Person and its Subsidiaries (other than Unrestricted Subsidiaries) that

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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 shall mean, 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 (without duplication):

(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);

(v) any Pre-Opening Expenses;

(vi) the amount of any restructuring costs, charges, accruals, expenses or reserves (including those relating to severance, relocation costs and one-time compensation charges), costs incurred in connection with any non-recurring strategic initiatives, and other business optimization expenses (including incentive costs and expenses relating to business optimization programs and signing, retention and completion bonuses) (other than to the extent such items represent the reversal of any accrual or reserve added back in a prior period) in an aggregate amount not to exceed, when combined with amounts of the type described in this clause (a)(vi) and added to Consolidated EBITDA pursuant to clause (a)(vii) below and amounts added to Consolidated EBITDA pursuant to clause (c) below, 25% of Consolidated EBITDA (calculated before any such amounts are added to Consolidated EBITDA pursuant to this clause (a)(vi), (a)(vii)  or clause (c) below);

(vii) any extraordinary, unusual or non-recurring costs, charges, accruals, reserves or items of loss or expense (including, without limitation, losses on asset sales (other than asset sales in the ordinary course of business)) (other than to the extent such items represent the reversal of any accrual or reserve added back in a prior period); provided that any amounts under this clause (a)(vii) that are of the type described in clause (a)(vi) above shall not exceed, when combined with amounts added to Consolidated EBITDA pursuant to clause (a)(vi) above and amounts added to

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Consolidated EBITDA pursuant to clause (c) below, 25% of Consolidated EBITDA (calculated before any such amounts are added to Consolidated EBITDA pursuant to this clause (a)(vii), (a)(vi) above or clause (c) below);  

(viii) 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, any Specified Transactions (or any proposed Specified Transactions) (including amortization or write offs of debt issuance or deferred financing costs, premiums and prepayment penalties), in each case, whether or not successful;

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

(x) 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 Closing Date which was not added back to Consolidated EBITDA when accrued; minus

(b) each of the following (without duplication):

(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 Closing 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; and

(iii)

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

(c) the amount of cost savings, operating expense reductions, other operating improvements and synergies projected by Borrower in good faith to be realized as a result of specified actions taken or with respect to which substantial 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 eighteen (18) months of the Closing Date, (y) any Specified Transaction, are reasonably expected to be initiated within eighteen (18) months of the closing date of such Specified Transaction or (z) restructurings and other initiatives of the type described in clause (a)(vi) above, are reasonably expected to be initiated within eighteen (18) months of the determination to take such specified action), including in connection with the Transactions or any Specified Transaction (calculated on a Pro Forma Basis as though such cost savings, operating expense reductions, other operating improvements and synergies had been realized during the entirety of such Test Period), net of the amount of actual benefits realized during such Test Period from such actions,  in an aggregate amount not to exceed, when combined with amounts added to Consolidated EBITDA pursuant to clause (a)(vi) above and amounts of the type described in clause (a)(vi) and added to Consolidated EBITDA

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pursuant to clause (a)(vii) above, 25% of Consolidated EBITDA (calculated before any such amounts are added to Consolidated EBITDA pursuant to this clause (c), or clause (a)(vi) or (a)(vii) above);  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, other operating improvements and synergies and certifying that such savings, operating expense reductions, other operating improvements and synergies are reasonably expected to be realized within eighteen (18) months of the taking of such specified actions and are reasonably identifiable and 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, other operating improvements and synergies in connection with the Transactions, eighteen (18) months after the Closing Date and (B) in all other cases, within eighteen (18) months after the consummation of such Specified Transaction, restructuring or implementation of an initiative, (iii) no cost savings, operating expense reductions, other operating improvements 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 eighteen (18) months have elapsed after the specified action taken in order to realize such projected cost savings, operating expense reductions, other operating improvements and synergies; 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 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 (without duplication):

(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 or, subject to Section 1.05, subsequent to such Test Period and (ii) any Unrestricted Subsidiary that is revoked and converted into a Restricted Subsidiary during such Test Period or, subject to Section 1.05,  subsequent to such Test Period, in each case, based on the Consolidated EBITDA of such Person (or attributable to such property, business or asset) for such Test 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; and

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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 or, subject to Section 1.05, subsequent to such Test Period and (ii) any Restricted Subsidiary that is designated as an Unrestricted Subsidiary during such Test Period or, subject to Section 1.05, subsequent to 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.

In addition, subject to clause (c) and the immediately preceding paragraph of this definition of “Consolidated EBITDA”, and subject to Section 1.05,  (a) no add-backs or adjustments shall be made to Consolidated EBITDA for any Test Period that have the effect of adding thereto or excluding from the deductions therefrom amounts in respect of Sale Leaseback Operating Expenses and (b) Consolidated EBITDA shall be deemed to be $10,045,340 for the fiscal quarter ended on December 31, 2018; $12,616,151 for the fiscal quarter ended on March 31, 2019; $13,044,043 for the fiscal quarter ended on June 30, 2019; and $12,384,771 for the fiscal quarter ended on September 30, 2019. 



Consolidated First Lien Net Leverage Ratio shall mean, as of any date of determination, the ratio of (a) Consolidated Net 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, other than Liens that are expressly subordinated in writing to the Liens securing the Obligations to (b) Consolidated EBITDA for the Test Period most recently ended prior to such date. 

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 and interest with respect to any Escrowed Indebtedness, (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) financing 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;  provided, that the portion of payments made in connection with the Sale Leaseback in the nature of interest, whether actual or implied, shall not constitute Consolidated Interest Expense.   

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 outside the ordinary course of business or (ii) any disposition of any securities by such Person or any of its Restricted Subsidiaries shall be excluded;

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(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);

(d) the undistributed earnings of any Restricted Subsidiary of Borrower that is not a Guarantor to the extent that, on the date of determination the payment of cash dividends or similar cash distributions by such Restricted Subsidiary (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 Restricted Subsidiary 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 Restricted Subsidiaries (or to the extent converted into cash); 

(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;

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(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 Borrowers economic ownership interest therein;  and

(l) except as required in connection with pro forma determinations made hereunder, the net income (or loss) of any Person accrued prior to the date it becomes a Restricted Subsidiary of Borrower or is merged into or consolidated with Borrower or any of its Restricted Subsidiaries or that such Person’s assets are acquired by Borrower or any of its Restricted Subsidiaries shall be excluded.

For the avoidance of doubt and anything to the contrary set forth above notwithstanding, Consolidated Net Income for any Test Period shall be determined, without duplication, with deductions for rent, insurance, property taxes and other amounts and expenses actually paid in cash by Borrower and its Restricted Subsidiaries in respect of the Sale Leaseback for such Test Period, regardless of whether all or any portion of the Sale Leaseback is accounted for as a “finance lease” or otherwise (such items, collectively, the “Sale Leaseback Operating Expenses”); provided that expenses in the nature of imputed interest and non-cash expenses, in each case in respect of the Sale Leaseback for the applicable Test Period, shall be excluded as Sale Leaseback Operating Expenses;  provided further that any “true-up” of rent paid in cash pursuant to the Sale Leaseback shall be accounted for in the fiscal quarter to which such payment relates as if such payment were originally made in such fiscal quarter.

Consolidated Net Indebtedness shall mean, as at any date of determination, (a) 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 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), minus (b) Qualified Cash; provided that (i) Consolidated Net Indebtedness shall not include (A) Indebtedness in respect of letters of credit (including Letters of Credit), except to the extent of unreimbursed amounts thereunder, (B) Indebtedness of the type described in clause (i) of the definition thereof, (C) Indebtedness attributable to the Sale Leaseback, regardless of whether all or any portion of the Sale Leaseback is accounted for as a “finance lease” or otherwise, and any Permitted Refinancing thereof in the nature of a lease and (D) Indebtedness attributable solely to the change to lease accounting rules pursuant to ASU No. 2016-02 Leases (Topic 842) and (ii) Consolidated Net Indebtedness shall not include Contingent Obligations, provided,  however, that if and when any such Contingent Obligation that does not constitute Consolidated Net Indebtedness 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 Net Indebtedness. 

Consolidated Total Assets shall mean, as at any date of determination with respect to any Person, the total amount of all assets of such Person in accordance with GAAP, as shown on the most recent Section 9.04 Financials.

Consolidated Total Net Leverage Ratio shall mean, as at any date of determination, the ratio of (a) Consolidated Net Indebtedness as of such date to (b) Consolidated EBITDA for the Test Period most recently ended prior to such date.

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

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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.

1 Contract Consideration has the meaning set forth in the definition of Excess Cash Flow.

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, master lease, management agreement, gaming agreements, 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” shall mean 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 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. 

Covered Taxes shall mean all (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 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 shall mean (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, Other Revolving Commitments 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) other than in the case of customary “bridge” facilities (so long as the long term debt into which any such customary “bridge” facility is to be automatically converted satisfies the following requirements), 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 (which, for the avoidance of doubt, shall not be subject to any mandatory commitment reductions prior to the Final Maturity Date of the applicable Refinanced Debt), a Weighted Average Life to Maturity equal to or greater

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than, the Refinanced Debt (or, if such Indebtedness is subordinated to the Obligations or secured by a junior lien on the Collateral or is unsecured, then the Final Maturity Date of the applicable Refinanced Debt plus 91 days) (in each case determined without giving effect to the impact of prepayments on amortization of Term Loans being refinanced), (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 arrangement fees, upfront fees and original issue discount), plus,  to the extent that such commitments were deemed funded for purposes of determining the permissibility of the incurrence of such Refinanced Debt, any unutilized commitments thereunder, (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 arrangement fees, upfront fees and original issue discount), (v) the terms (excluding maturity, amortization, pricing, fees, rate floors, premiums and optional prepayment or redemption terms) of such Indebtedness reflect terms and conditions, taken as a whole, at the time of incurrence or issuance thereof (x) in the case of Credit Agreement Refinancing Indebtedness constituting debt securities, on then-market terms and conditions or (y) in the case of Credit Agreement Refinancing Indebtedness not constituting debt securities, not materially more favorable to the lenders providing such Credit Agreement Refinancing Indebtedness, as reasonably determined in good faith by Borrower, than those applicable to the applicable Refinanced Debt (except for covenants and other provisions applicable only to periods after the Final Maturity Date remaining outstanding after giving effect to the incurrence or issuance of such Credit Agreement Refinancing Indebtedness) (except to the extent such terms (1) added to the Term B Facility Loans or Revolving Facility, (2) applicable only after the Final Maturity Date (in the case of term Indebtedness) or the latest R/C Maturity Date (in the case of revolving Indebtedness) or (3) otherwise reasonably satisfactory to Administrative Agent), (vi) Borrower shall be the sole borrower thereunder and no Person shall guaranty such Indebtedness unless such Person is also a Guarantor hereunder, (vii) to the extent such Indebtedness is secured, such Indebtedness shall not be secured by any Liens on any assets, except Liens on the Collateral,  and shall be subject to a Pari Passu Intercreditor and/or a Second Lien Intercreditor Agreement, as applicable, (viii) any Credit Agreement Refinancing Indebtedness consisting of a term facility shall share ratably (and not more than ratably) in any voluntary or mandatory prepayments of the Term B Facility unless (a) Borrower and the lenders in respect of such Credit Agreement Refinancing Indebtedness consisting of a term facility elect lesser prepayments or (b) such Credit Agreement Refinancing Indebtedness consisting of a term facility is not pari passu in right of payment or security (in which case such prepayments shall be on a junior basis)  (provided that if such Indebtedness is subordinated to the Obligations or secured by a junior lien on the Collateral or is unsecured, then it shall not have mandatory prepayment, redemption or offer to purchase events more onerous to Borrower (as reasonably determined in good faith by Borrower) than those set forth in hereunder (and shall otherwise be subject to the terms hereunder)) and (ix) if the Refinanced Debt was (A) contractually subordinated to the Term Loans and Revolving Loans in right of payment, such Credit Agreement Refinancing Indebtedness shall be contractually subordinated to the Term Loans and Revolving Loans on the same basis or otherwise in a manner reasonably acceptable to the Administrative Agent, (B) secured by Liens contractually subordinated to the Liens securing the Term Loans and Revolving Loans, such Credit Agreement Refinancing Indebtedness shall be contractually subordinated in right of security to the Term Loans and Revolving Loans on the same basis or subject to intercreditor arrangements reasonably acceptable to the Administrative Agent, or shall be unsecured or (C) unsecured, such Credit Agreement Refinancing Indebtedness shall be unsecured.  For the avoidance of doubt, the usual and customary terms

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of convertible or exchangeable debt instruments issued in a registered offering or under Rule 144A of the Securities Act 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, so long as the terms of such instruments do not include any financial maintenance covenant.

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 with Administrative Agent, Collateral Agent and/or any Lender, in connection herewith or therewith (x) evidencing or governing the Obligations (other than the Commitment Letter and the Fee Letter) or (y) deemed by Borrower and the Administrative Agent in writing as a “Credit Document”, 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).

Debt Issuance shall mean the incurrence by Borrower or any Restricted Subsidiary of any Indebtedness after the Closing Date,  other than as permitted by Section 10.01 unless constituting Credit Agreement Refinancing Indebtedness.  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).

Debtor Relief Laws shall mean 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, including without limitation, the Bankruptcy and Insolvency Act (Canada) and the Companies’ Creditors Arrangement Act (Canada).

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 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). 

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 Lenders 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

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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 Lenders 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 Agents and Borrowers 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 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).

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.

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

Disqualification shall mean, with respect to any Person:

(a) the failure of such Person to timely file pursuant to applicable Gaming Laws (i) any application required of such Person by any Gaming Authorities in connection with any licensing required of such Person as a lender to Borrower pursuant to applicable Gaming Laws or (ii) any application or other papers, in each case, required by any Gaming Authority in connection with a determination by such Gaming Authority of the suitability of such Person as a lender to Borrower;

(b) the withdrawal by such Person (except where requested or permitted by any Gaming Authority) of any such application or other required papers;

(c) any final determination by a Gaming Authority pursuant to applicable Gaming Laws (i) that such Person is unsuitable as a lender to Borrower, (ii) that such Person shall be disqualified as a lender

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to Borrower or (iii) denying the issuance to such Person of a license or finding of suitability or other approval or waiver; or

(d)  such Person has otherwise failed to obtain a license or finding of “suitability” or other approval required by a Gaming Authority pursuant to applicable Gaming Laws which failure results in a Material Adverse Effect on Borrower and/or any Restricted Subsidiary.

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, pursuant to a sinking fund or otherwise (other than solely (w) 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, (x) as a result of a redemption required by Gaming Law, (y) 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 or (z) with respect to Equity Interests issued to any plan for the benefit of, or to, present or former directors, officers, consultants or employees that is required to be repurchased by the issuer thereof in order to satisfy applicable statutory or regulatory obligations as a result of such directors, officers, consultants, or employees termination, resignation, retirement, death or disability), 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 (a) any persons designated in writing to the Lead Arranger by Borrower on or prior to June 17, 2019 as a “Disqualified Lender, (b) any person that is a direct competitor of Borrower or its Subsidiaries and designated as a Disqualified Lender by written notice to the Lead Arranger (or after the Closing Date, Administrative Agent) by Borrower from time to time (but not less than three Business Days prior to such date), or (c) any Affiliate of such person identified pursuant to clauses (a) or (b) that is clearly identifiable solely on the basis of its name or identified in writing to the Lead Arranger (or after the Closing Date, Administrative Agent) by Borrower from time to time (other than any bona fide debt fund, fixed income investors, regulated bank entity or unregulated lending entity that is engaged in making, purchasing, holding or otherwise investing in commercial loans, debt securities or similar extensions of credit in the ordinary course of business); provided, that (i) any subsequent designation of a Disqualified Lender will not become effective until three (3) Business Days after such designation is delivered pursuant to the terms of this definition, it being understood that no such subsequent designation shall apply to any entity that is currently a Lender or party to a pending trade and (ii) the foregoing shall not apply retroactively to disqualify any parties that have previously been allocated a portion of the facilities hereunder or acquired an assignment or participation interest in the facilities hereunder to the extent such party was not a Disqualified Lender at the time of the applicable allocation, assignment or participation, as the case may be;  provided further, that the term Disqualified Lender shall exclude any Person that has been designated as no longer being a Disqualified Lender by written notice delivered by Borrower to the Administrative Agent from time to time

 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, any state thereof or the District of Columbia.

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

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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.

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) and (ii) solely for purposes of Borrower Loan Purchases, Borrower and its Restricted Subsidiaries;  provided, however, that (x) other than as set forth in clause (ii) of this definition, neither Borrower nor any of Borrowers 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 natural person or any Person who is a Defaulting Lender or subject to a Disqualification.

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.

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

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outstanding on the Closing Date or issued after the Closing 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 Closing 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 Closing 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 an issuance of Indebtedness 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.

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 the 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 or 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, within the meaning of Title IV of ERISA or is in endangered or critical status, within the meaning of Section 432 of the Code or

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Section 305 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 and 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 or any of its Restricted Subsidiaries, are treated as a single employer under Section 414(b) or (c) of the Code or solely for purposes of Code Section 430 or ERISA Section 303, Section 414(m) or (o) of the Code.

Escrowed Indebtedness shall mean Indebtedness issued in escrow pursuant to customary escrow arrangements pending the release thereof.

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.

Excess Cash Flow shall mean, for any fiscal year of Borrower, 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); plus

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

(e) 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; 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

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(h) the amount of Capital Expenditures made in cash during such period (or, at Borrowers election, after such period and prior to the date the applicable Excess Cash Flow prepayment is due (without duplication of amounts deducted from Excess Cash Flow in any other period)), except to the extent financed with the proceeds of an Equity Issuance, Indebtedness (other than revolving 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 made in cash during such period (or, at Borrowers election, after such period and prior to the date the applicable Excess Cash Flow prepayment is due (without duplication of amounts deducted from Excess Cash Flow in any other period)) 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) or 2.10(a)(iii), 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 (other than revolving 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) the amount of Investments made during such period (or, at Borrowers election, after such period and prior to the date the applicable Excess Cash Flow prepayment is due (without duplication of amounts deducted from Excess Cash Flow in any other period)) pursuant to Section 10.04 (other than Sections 10.04(a) (to the extent outstanding on the Closing Date), (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), (l) (solely to the extent made in reliance on clause (b) of the Available Amount), (o) (to the extent outstanding on the date of the applicable acquisition, merger or consolidation), (q), (r), (u), (v) and (w), and other than Investments among Borrower and its Restricted Subsidiaries), except to the extent financed with the proceeds of an Equity Issuance, Indebtedness (other than revolving Indebtedness), 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

(l) the amount of all Restricted Payments made during such period (or, at Borrowers election, after such period and prior to the date the applicable Excess Cash Flow prepayment is due (without duplication of amounts deducted from Excess Cash Flow in any other period)) pursuant to Section 10.06(f), 10.06(g), 10.06(h),  10.06(i) and 10.06(j) (except to the extent made in reliance on clause (b) of the Available Amount);  minus

(m) the amount of all Junior Prepayments made during such period (or, at Borrowers election, after such period and prior to the date the applicable Excess Cash Flow prepayment is due (without duplication of amounts deducted from Excess Cash Flow in any other period)) pursuant to Section 10.09(a)(i), 10.09(a)(ii), 10.09(a)(iii) or 10.09(a)(viii); minus

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(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; minus

(o) the amount of cash Taxes actually paid by Borrower and its Restricted Subsidiaries to Governmental Authorities during such period; minus

(p) the amount of income tax benefit included in determining Consolidated Net Income for such fiscal year (if any); minus

(q) [reserved];  minus

(r) without duplication of amounts deducted from Excess Cash Flow in prior periods, the aggregate consideration required to be paid in cash by Borrower and its Restricted Subsidiaries pursuant to binding contracts (the Contract Consideration) entered into prior to or during such period relating to Investments permitted under this Agreement or Capital Expenditures in each case to the extent expected to be consummated or made during the period of four consecutive fiscal quarters of Borrower following the end of such period (except, in each case, (x) to the extent financed (or anticipated to be financed) with proceeds of an Equity Issuance, Indebtedness (other than revolving Indebtedness), Asset Sales or Casualty Events (to the extent such proceeds do not (or are not anticipated to) increase Consolidated Net Income) or (y) Investments among Borrower and its Restricted Subsidiaries or otherwise not permitted to be deducted in the determination of “Excess Cash Flow” under clause (j) above); provided that to the extent the aggregate amount actually utilized in cash to finance such Investments or Capital Expenditures during such period of four consecutive fiscal quarters is less than the Contract Consideration, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such period of four consecutive fiscal quarters; minus

(s) any cash expenditure of a type not described in clauses (d) through (r) above made during such period that does not reduce Consolidated Net Income and to the extent not financed with the proceeds of an Equity Issuance or Indebtedness (other than revolving Indebtedness) or paid to Borrower or any of its Restricted Subsidiaries. 

Excess Cash Flow Period shall mean each fiscal year of Borrower, commencing with the fiscal year of Borrower ending on December 31, 2020.

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

Excluded Contribution shall mean net cash proceeds received by Borrower from the sale (other than (i) to a Subsidiary of Borrower or (ii) to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of Borrower) of Equity Interests (other than Disqualified Capital Stock) of Borrower in each case (x) not including any amounts included in the Available Amount and (y) to the extent designated as Excluded Contributions by Borrower, pursuant to an officers certificate delivered to Administrative Agent, within one hundred and eighty (180) days of the date such capital contributions are made, such dividends, distributions, fees or other payments are paid, or the date such Equity Interests are sold, as the case may be.

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

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Excluded LCT Transactions” shall have the meaning provided in Section 1.07.

Excluded Subsidiary” shall mean (a) any Unrestricted Subsidiary, (b) any Immaterial Subsidiary, (c) any Subsidiary that is a (i) Foreign Subsidiary, (ii) CFC Holdco or (iii) Subsidiary of a Foreign Subsidiary of Borrower if such Foreign Subsidiary is a CFC, in each case to the extent, in the reasonable judgment of Administrative Agent and Borrower, the cost or other consequences (including any adverse tax consequences) of providing a guarantee from such Subsidiary would be excessive in view of the benefits to be obtained by the Lenders therefrom; provided that no Canadian Subsidiary shall constitute an “Excluded Subsidiary” under this clause (c), (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, and in each case, only for so long as such prohibition exists; provided that any such agreement, instrument or other undertaking (i) is in existence on the Closing Date and listed on Schedule 1.01(A) (or, with respect to a Subsidiary acquired after the Closing Date, as of the date of such acquisition) and (ii) in the case of a Subsidiary acquired after the Closing Date, was not entered into in connection with or anticipation of such acquisition, (e) any Subsidiary for which guaranteeing the Obligations would require consent, approval, license or authorization from any Governmental Authority (including, without limitation, any Gaming Authority) and such consent, approval, license or authorization has not been received after such Subsidiarys commercially reasonable efforts to obtain such consent, approval, license or authorization,  and unless such consent, approval, license or authorization has been received and is in effect, (f) any not-for-profit Subsidiaries, (g) any captive insurance Subsidiaries, (h) any other Subsidiary with respect to which, in the reasonable judgment of Administrative Agent and 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 and (i) any Restricted Subsidiary that is not a Wholly Owned Subsidiary, other than any Domestic Subsidiary or Canadian Subsidiary that becomes a non-Wholly Owned Subsidiary after the Closing Date as a result of (A) the disposition or issuance of Equity Interests of such Subsidiary in either case to a Person that is an Affiliate of Borrower, (B) any transaction entered into primarily in contemplation of such Subsidiary’s ceasing to constitute a Guarantor or (C) the disposition or issuance of Equity Interests of such Subsidiary for less than the fair market value of such Equity Interests

Excluded Swap Obligation shall mean, 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 Guarantors 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 Guarantors 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 all of the following Taxes imposed on or 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

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Credit Party or required to be deducted from a payment to such recipient, in each case, under any Credit Document, (a) income or franchise Taxes imposed on (or measured by) such recipient’s net income or net profits (however denominated) and branch profits Taxes, in each case, (i) imposed by a jurisdiction as a result of such recipient being organized under the Laws of, or having its principal office or, in the case of any Lender, its Applicable Lending Office located in such jurisdiction or (ii) that are Other Connection Taxes, (b) in the case of any Lender, any U.S. federal withholding Tax that is imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a Law in effect on the date on which (i) such Lender acquires such interest in the applicable Commitment (or, to the extent a Lender acquires an interest in a Loan not funded pursuant to a prior Commitment, acquires such interest in such Loan) (in each case, other than pursuant to an assignment requested by Borrower under Section 2.11(a)) or (ii) such Lender designates a new Applicable Lending Office, except in each case to the extent that additional amounts with respect to such withholding Tax were payable pursuant to Section 5.06(a) either to such Lender’s assignor immediately before such Lender acquired the applicable interest in the applicable Loan or Commitment or to such Lender immediately before it designated the new Applicable Lending Office, (c) Taxes attributable to such recipient’s failure to comply with Section 5.06(c), and (d) any U.S. withholding Tax imposed under FATCA.  For purposes of subclause (b) of this definition, a Lender that acquires a participation pursuant to Section 4.07(b) shall be treated as having acquired such participation on the earlier date(s) on which such Lender acquired the applicable interest(s) in the Commitment(s) and/or Loan(s) to which such participation relates.

Existing Indebtedness shall mean the existing Indebtedness for borrowed money of Borrower, Target and their respective Subsidiaries outstanding immediately prior to the Closing Date, including Indebtedness under that certain Third Amended and Restated Credit Agreement, dated June 30, 2018, by and among Century Resorts Alberta, Inc., Century Casino St. Albert Inc., Century Mile Inc. and Bank of Montreal, as administrative agent; but excluding Indebtedness permitted under Section 10.01(b).

 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.

 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).

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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 arms-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 shall mean 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),  any current or future regulations thereunder or official interpretations thereof, any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above) and any fiscal or regulatory legislation, rules or official administrative guidance adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities implementing the foregoing.

Federal Funds Effective Rate shall mean, for any day, the rate calculated by the NYFRB based on such days 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;  provided further, that if no such rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average rate charged to major banks on such day on such transactions as determined by the Administrative Agent.

Fee Letter” shall mean the Fee Letter, dated as of June 17, 2019, by and between Borrower, the committed lenders thereunder and the Lead Arranger.

Final Maturity Date shall mean the latest of the latest R/C 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 Covenant Event of Default has the meaning provided in Section 11.01(d).

Financial Maintenance Covenant shall mean the covenant set forth in Section 10.08.

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

Fixed Amounts has the meaning set forth in Section 1.08(a).

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Flood Insurance Laws shall mean, 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, (d) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (e) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.

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 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;  provided that “Foreign Subsidiary” shall exclude each Canadian Subsidiary.

Fund shall mean 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.

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) relating to Borrower or any of its Restricted Subsidiaries (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 West Virginia Alcohol Beverage Control Administration, the West Virginia Lottery Commission, the West Virginia Racing Commission, the Missouri Gaming Commission,  the Alberta Gaming and Liquor Commission and Horse Racing Alberta) 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

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tracks, off-track wagering sites, gambling taverns, distributed gaming locations, 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 owned, managed, leased or operated by Borrower or any of its Restricted Subsidiaries from time to time 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 in favor of Borrower or any of its Restricted Subsidiaries covering any such activity at any Gaming Facility owned, managed, leased or operated by Borrower or any of its Restricted Subsidiaries from time to time.

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.

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; and provided,  further, that in no event shall any Excluded Subsidiary be required to be a Guarantor (unless such Subsidiary is no longer an Excluded Subsidiary).

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.

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Immaterial Subsidiary shall mean (a) as of the Closing 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 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 cases of clauses (i), (ii), (iii) and (iv) below, if already designated, remain), if, as of the date of its designation (or if already designated, as of any date following such designation) (i) (x) such Persons (1) Consolidated EBITDA for the then most recently ended Test Period is in excess of 2.5% of the Consolidated EBITDA of Borrower and its Restricted Subsidiaries or (2) Consolidated Total Assets as of the last day of the then most recently ended Test Period is in excess of 2.5% of the Consolidated Total Assets of Borrower and its Restricted Subsidiaries on a consolidated basis and (y) when such Person is taken together with all other Immaterial Subsidiaries as of such date, all such Immaterial Subsidiaries (1) Consolidated EBITDA for the then most recently ended Test Period is in excess of 5.0% of the Consolidated EBITDA of Borrower and its Restricted Subsidiaries or (2) Consolidated Total Assets as of the last day of the then most recently ended Test Period is in excess of 5.0% of the Consolidated Total Assets of Borrower and its Restricted Subsidiaries on a consolidated basis, (ii) it owns any Equity Interests in any Guarantor, (iii) it owns any material assets which are used in connection with any Gaming Facility (other than a Gaming Facility with 100 gaming machines or less), (iv) it owns any Real Property which would be required to be a Mortgaged Real Property hereunder if such Subsidiary were not an Immaterial Subsidiary or (v) 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 “Commitment Fee Rate.”



Inaccurate Applicable Fee Percentage Period” has the meaning set forth in the definition of “Commitment Fee Rate.”



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



Increased Amount of any Indebtedness shall mean any increase in the amount of such Indebtedness in connection with any accrual of interest, the accretion of accreted value, the amortization of original issue discount, the payment of interest in the form of additional Indebtedness or in the form of common stock of Borrower, the accretion of original issue discount or liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies.

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


Incremental Incurrence-Based Amount has the meaning set forth in the definition of Incremental Loan Amount.


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



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Incremental Loan Amount shall mean, as of any date of determination, without duplication:  



(a) the Shared Fixed Incremental Amount; plus 

(b) the Shared Prepayment Amount, plus

(c) an unlimited amount so long as, in the case of this clause (d), the Consolidated First Lien Net Leverage Ratio would not exceed 3.00:1.00, calculated on a Pro Forma Basis after giving effect thereto, including the application of proceeds thereof, as of the last day of the most recently ended Test Period; provided that, for such purpose, (1) in the case of any Incremental Revolving Commitment or other unfunded Incremental Commitment, such calculation shall be made assuming a full drawing of such Incremental Commitment and (2) such calculation shall be made without netting the cash proceeds of any Borrowing under such Incremental Commitment (this clause (c), the Incremental Incurrence-Based Amount).

It is understood and agreed that (I) Borrower may elect to use the Incremental Incurrence-Based Amount prior to the Shared Fixed Incremental Amount or the Shared Prepayment Amount and regardless of whether there is capacity under the Shared Fixed Incremental Amount or the Shared Prepayment Amount, and if the Shared Fixed Incremental Amount, the Shared Prepayment Amount and the Incremental Incurrence-Based Amount are each available and Borrower does not make an election, Borrower will be deemed to have elected to use the Incremental Incurrence-Based Amount;  and (II) any portion of any Incremental Term Loan, Incremental Term Loan Commitment, Incremental Revolving Commitment or Ratio Debt incurred in reliance on the Shared Fixed Incremental Amount or the Shared Prepayment Amount shall be reclassified as incurred under the Incremental Incurrence-Based Amount as Borrower may elect from time to time if Borrower meets the applicable Consolidated First Lien Net Leverage Ratio under the Incremental Incurrence-Based Amount at such time on a Pro Forma Basis.

Incremental Revolving Commitments shall mean Incremental Existing Tranche Revolving Commitments.

Incremental Revolving Loans shall mean any Revolving Loans made pursuant to Incremental Revolving Commitments.

Incremental Term B Loan Commitments shall have the meaning provided in Section 2.12(a).

Incremental Term B Loans shall have the meaning provided in Section 2.12(a).

Incremental Term Loan Commitments shall mean the Incremental Term B Loan Commitments and the New Term Loan Commitments.

Incremental Term Loans shall mean the Incremental Term B 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).

Incurrence-Based Amounts has the meaning set forth in Section 1.08(a).

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

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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 Qualified Capital Stock 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 and such indemnification is not disputed 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; and (j) all Contingent Obligations of such Person in respect of Indebtedness of others of the kinds referred to in clauses (a) through (i) above. The Indebtedness of any Person shall 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).  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 (w) Indebtedness attributable solely to the change to lease accounting rules pursuant to ASU No. 2016-02 Leases (Topic 842), (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 Target Acquisition) shall not constitute Indebtedness. Operating leases shall not constitute Indebtedness hereunder regardless of whether required to be recharacterized as Capital 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.

Intellectual Property has the meaning set forth in Section 8.19.

Intercompany Promissory Note” means an intercompany promissory note, in substantially the form of Exhibit E hereto, or otherwise in form and substance reasonably satisfactory to the Administrative Agent.

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 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 than one month requested by Borrower and available to and consented to by all the applicable Lenders (and if less than one month, the consent of 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;

(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 means, at any time, for any Interest Period, the rate per annum (rounded to the same number of decimal places as the LIBO Screen Rate) determined by 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 for the applicable currency that is shorter than the Impacted Interest Period; and (b) the LIBO Screen Rate for the shortest period for which that LIBO Screen Rate is available for the applicable currency 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 (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 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 Borrowers 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 Closing Date and set forth on Schedule 8.12(c)); provided, however, that upon the Revocation of a Subsidiary that was designated as an Unrestricted Subsidiary after the Closing 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

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amount constitutes an outstanding Investment under clauses (d), (i), (k), (l), (m), (s) or (t) of Section 10.04 at the time of such Revocation. 

IOC” shall have the meaning assigned to such term in the definition of “Target Acquisition Agreement.”

IOC-Caruthersville shall mean IOC-Caruthersville, LLC, a Missouri limited liability company.

IOC-CG shall mean IOC-Cape Girardeau, LLC, a Missouri limited liability company.

IRS shall mean the United States Internal Revenue Service.

ISP shall mean, 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).

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 Agreements.

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 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 Lenders L/C Commitment as of the Closing 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 Lenders participation interest (or, in the case of each L/C Lender, such L/C Lenders retained interest) in each L/C Lenders liability under Letters of Credit and such Lenders 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: (i) Macquarie or any of its Affiliates or designees, in its capacity as issuer of Letters of Credit issued by it hereunder, together with its successors and assigns in such capacity;  provided that, neither Macquarie nor any of its Affiliates or designees shall be required to issue any commercial or documentary Letters of Credit; and/or (ii) any other Revolving Lender or Revolving Lenders selected by Borrower and reasonably acceptable to Administrative Agent

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(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 Lenders 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) $5.0 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.

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.

LCT Election shall have the meaning provided in Section 1.07.

LCT Test Date shall have the meaning provided in Section 1.07.

Lead Arranger shall mean Macquarie Capital (USA) Inc., in its capacity as sole lead arranger and sole bookrunner 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 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) each Person listed on Annexes A‑1 or A‑2, (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

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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).

LIBO Base Rate shall mean, with respect to any LIBOR Loan for any Interest Period therefor, the London interbank offered rate (LIBOR) as administered by ICE Benchmark Administration Limited (or any other Person that takes over the administration of such rate for Dollars for a period equal in length to such Interest Period) as displayed on pages the Bloomberg screen that displays such rate (or, in the event such rate does not appear on a Bloomberg 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 (in each case the LIBO Screen Rate) at approximately 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, if the LIBO Screen Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement and provided,  further, 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, provided, that, if any Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement; provided further, if the rates referenced in the preceding clauses are not available, the rate per annum determined by the Agent as the LIBO Base Rate shall be the rate of interest at which deposits in dollars for delivery on the first day of such Interest Period in same day funds being made, continued or converted and with a term and amount comparable to such Interest Period as would be quoted to the Agent by major banks in the London interbank market at their request at approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of such Interest Period; provided that to the extent a comparable or successor rate is approved by 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 Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by Administrative Agent.  Notwithstanding the foregoing, the LIBO Base Rate shall not be less than 0.00%.

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%) equal to the LIBO Base Rate for such Loan for such Interest Period multiplied by the Statutory Reserve Rate 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 B Facility Loans and Revolving Loans shall not be less than 0.00%.

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

License Revocation shall mean the revocation, termination, voidance, repudiation, failure to renew or suspension of, or the appointment of a receiver, supervisor or similar official with respect to, any Gaming License or Gaming Approval covering any Gaming Facility owned, leased, operated or used by Borrower or any of its Restricted Subsidiaries.

Lien shall mean, with respect to any Property, any mortgage, deed of trust, deed to secure debt, lien, pledge, charge, security interest, assignment, hypothecation, assignment of leasehold interest or rents,

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option, right of first offer, right of first refusal, purchase option, easement, encroachment, title defect, adverse claim, restriction (including any restriction on transfer or other assignment), or encumbrance for security of any kind, or any filing of any financing statement under the UCC or PPSA 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 along with all modifications, supplements, replacements, restatements, and amendments to each of the foregoing.

Limited Condition Transaction shall have the meaning provided in Section 1.07.

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 special gaming and 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.

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

Macquarie shall mean Macquarie Capital Funding LLC.

Material Adverse Effect shall mean (i) on the Closing Date, with respect to the Target and its businesses, a  Target Material Adverse Effect, and (ii) except as set forth in the forgoing clause (i), (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 to satisfy their material payment Obligations under the Credit Documents or (c) a material adverse effect on the rights and remedies of the Administrative Agent and the Lenders under the Credit Documents.

Material Casualty Event”  shall mean a “Material Casualty Event” (as defined in the Target Acquisition Agreement as in effect on June 17, 2019).

Material Condemnation Event”  shall mean a “Material Condemnation Event” (as defined in the Target Acquisition Agreement as in effect on June 17, 2019).

Material Contract” shall mean each written contract, agreement, permit or license of any Credit Party as to which the breach, non-performance, cancellation or failure to renew by any party thereto would reasonably be expected to cause or result in a Material Adverse Effect.

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Material Real Property shall mean any Real Property located in the United States or Canada with a fair market value in excess of $5.0 million at the Closing Date or, with respect to Real Property acquired or appreciating after the Closing Date, at the time of acquisition or appreciation, in each case, as reasonably estimated by Borrower in good faith.  For the avoidance of doubt, Material Real Property shall include each Real Property described on Schedule 1.01(C).

Maximum Rate has the meaning set forth in Section 13.18.

MFN Adjustment has the meaning set forth in Section 2.12(c).

Minimum Collateral Amount shall mean, 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 Administrative Agent and the L/C Lenders in their reasonable discretion.

Moodys shall mean Moodys Investors Service, Inc., or any successor entity thereto.

Mortgage shall mean an agreement, including, but not limited to, a mortgage,  deed of trust, deed to secure debt or any other document, creating and evidencing a first Lien (subject only to the Permitted Liens) 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-1 or Exhibit I-2, as applicable, 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).

Mountaineer shall mean Mountaineer Park, Inc., a West Virginia corporation.

MTR” shall have the meaning assigned to such term in the definition of “Target Acquisition Agreement.”

 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 has an obligation to make contributions, (b) to which any ERISA Entity has within the preceding six plan years made or had an obligation to make contributions, including any Person which ceased to be an ERISA Entity during such six 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.

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Net Available Proceeds shall mean:

(i)in the case of any Asset Sale pursuant to Sections 10.05(c) or 10.05(s), 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 (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 secured by Collateral) 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 Officers 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 $2.5 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 $5.0 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 secured by Collateral) 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 (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

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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 equal to $2.5 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 $5.0 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 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-Credit Party and Non-Credit Parties shall mean any Subsidiary or Subsidiaries of Borrower that is not a Credit Party or are not Credit Parties.

Non-Credit Party Cap shall mean, at any time, an amount equal to $15.0 million in the aggregate minus (ii) the then outstanding aggregate principal amount of Indebtedness incurred (or being incurred concurrent with any determination of the Non-Credit Party Cap) by Subsidiaries that are not Credit Parties pursuant to Sections 10.01(t), 10.01(q) and 10.01(v).

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

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

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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.

Notice of Continuation/Conversion shall mean a notice of continuation/conversion substantially in the form of Exhibit C-1 or such other form as is reasonably acceptable to Administrative Agent.

Notice of Prepayment” shall mean a notice of prepayment substantially in the form of Exhibit C-2 or such other form as is reasonably acceptable to Administrative Agent.

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 shall mean the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by 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 to any Secured Party or any of its Agent Related Parties or their respective successors, transferees or assignees (or, in the case of any Credit Swap Contract or any Secured Cash Management Agreement, by any Restricted Subsidiary) pursuant to the terms of any Credit Document, any Credit Swap Contract or any Secured Cash Management Agreement (including in each case interest, fees and expenses 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.

Officers Certificate shall mean, as applied to any entity, a certificate executed on behalf of such entity (or such entitys 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, its treasurer or controller or its secretary or assistant secretary (in each case, or an equivalent officer) or any other officer reasonably acceptable to the Administrative Agent, in each case in their official (and not individual) capacities.

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.

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

Other Commitments shall mean the Other Term Loan Commitments and Other Revolving Commitments.

Other Connection 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 under any Credit Document, Taxes imposed as a result of a present or former connection between such recipient and the jurisdiction imposing such Tax (other than connections arising from such recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest in any Loan or Credit Document).

 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 Liens in any Collateral on a pari passu basis with the Liens securing the Obligations and (b) is Permitted First Priority Refinancing Debt or Ratio Debt.

Other Junior Indebtedness shall mean Permitted Unsecured Refinancing Debt, Permitted Second Priority Refinancing Debt, or any Indebtedness incurred pursuant to Section 10.01(q) or constituting Ratio Debt that is secured by a Lien on any Collateral that is 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 shall mean one or more Tranches of revolving credit commitments hereunder that result from a Refinancing Amendment.

Other Revolving Loans shall mean one or more Tranches of Revolving Loans that result from a Refinancing Amendment.

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

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

Other Term Loans shall mean one or more Tranches of Term Loans that result from a Refinancing Amendment.

Overnight Bank Funding Rate shall mean, for any day, the rate (not less than zero) comprising 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

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defined in any of the Security Agreements), the payment in full of all of such obligations and (b) with respect to the Obligations or the Secured Obligations (as defined in any of the Security Agreements), the irrevocable termination of all Commitments, the payment in full in cash of all such obligations (except undrawn Letters of Credit and Unasserted Obligations), including principal, interest, fees, expenses, costs (including post-petition interest, fees, expenses, and costs even if such interest, fees, expenses and costs are not an allowed claim enforceable against any Credit Party 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 Administrative Agent).  For purposes of this definition, Unasserted Obligations shall mean, at any time, contingent indemnity obligations in respect of which no claim or demand for payment has been made at such time.

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 shall mean an intercreditor agreement substantially in the form of Exhibit S hereto or such other form as is reasonably acceptable to Administrative Agent.

Participant Register has the meaning set forth in Section 13.05(a).

PATRIOT Act has the meaning set forth in Section 13.14.

 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 (a) maintained, contributed to or required to be contributed to by any ERISA Entity, (b) was within the last six (6) years maintained, contributed to or required to be contributed to by an ERISA Entity or (c) with respect to which any Company is reasonably likely to incur liability under Title IV of ERISA, Section 412 of the Code or Section 302 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 of more than 50% of the Equity Interests in, a Person or any division or line of business of a Person (including any Investment in any such acquired Restricted Subsidiary of Borrower which serves to increase Borrower’s or any Restricted Subsidiary’s respective equity ownership in such Restricted Subsidiary) 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

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is continuing or would result therefrom and Borrower and its Restricted Subsidiaries shall be in compliance on a Pro Forma Basis with the Financial Maintenance Covenant (regardless of whether then applicable) 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 or of an acquisition by a Person that is not Borrower or a Guarantor (and does not become a Guarantor) hereunder, the consideration (excluding Qualified Capital Stock in Borrower) paid in all such Permitted Acquisitions shall not exceed an aggregate amount equal to the sum of (i) $15.0 million during the term of this Agreement plus (ii) the amounts available for Investments set forth in Section 10.04,  (d) with respect to a Permitted Acquisition in excess of $10.0 million, Borrower has delivered to Administrative Agent an Officers Certificate to the effect set forth in clauses (a), (b) and (c) above and clause (f) below, together with all relevant financial information for the Person or assets to be acquired, (e) each applicable Credit Party and any such newly created or acquired Restricted Subsidiary shall have complied with the requirements of Sections 9.09 and 9.11 or made arrangements for compliance therewith after the effectiveness of such Permitted Acquisition in accordance with Sections 9.09 and 9.11 and (f) immediately before and after giving effect thereto, no Event of Default specified in Section 11.01(b) or 11.01(c) or an Event of Default specified in Section 11.01(g) or 11.01(h) has occurred and is continuing or would result therefrom.

Permitted Assignees shall mean any Affiliate of any Credit Party (other than Borrower and its Subsidiaries).

Permitted Equity Issuance shall mean any issuance of Equity Interests (other than Disqualified Capital Stock) by Borrower.

Permitted First Priority Refinancing Debt shall mean 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 Liens on Collateral on a pari passu basis (but without regard to the control of remedies) with the Liens securing the Obligations and is not secured by any property or assets other than Collateral, (b) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness, (c) such Indebtedness is not at any time guaranteed by any Persons other than 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 shall mean, with respect to any Indebtedness incurred by a Credit Party, that such Indebtedness (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, (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 at the time of issuance, (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 customary asset sale provisions, refinancing debt and excess cash flow prepayment provisions that, except in the case of customary refinancing debt provisions, permit application of the applicable proceeds or cash flow 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, (iv) is not at any time guaranteed by any Persons other than Guarantors, (v) is not at any time secured by any assets that do not constitute Collateral,  (vi) has terms (excluding maturity, amortization, pricing, fees, rate floors, premiums and optional prepayment or redemption terms) that are (x) in the case of debt securities, on then-market terms or (y) in the case of Indebtedness other than debt securities, not materially more favorable to the lenders or investors providing such Indebtedness, as

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reasonably determined in good faith by Borrower, than those applicable to Term B Facility Loans (except for covenants and other provisions applicable only to periods after the Final Maturity Date remaining outstanding after giving effect to the incurrence or issuance of such Indebtedness) (except to the extent such terms (1) added to the Term B Facility Loans and the Revolving Facility, (2) applicable only after the Final Maturity Date or (3) otherwise reasonably satisfactory to Administrative Agent)) and (vii) in the case of subordinated Indebtedness, (A) 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 (B) that contains subordination provisions reasonably satisfactory to Administrative Agent.

Permitted Liens has the meaning set forth in Section 10.02.

Permitted Refinancing shall mean, (a) with respect to any Indebtedness other than the Obligations or any Ratio Debt incurred by any Credit Party, 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 or Purchase Money Obligation, a Weighted Average Life to Maturity that is shorter than that of the Indebtedness being refinanced (determined without giving effect to the impact of prepayments on amortization of term 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,  to the extent that such commitments were deemed funded for purposes of determining the permissibility of the incurrence of such Indebtedness, 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; and (b) with respect to Indebtedness comprising Obligations or any Ratio Debt incurred by any Credit Party, any refinancing thereof that satisfies the requirements of “Credit Agreement Refinancing Indebtedness”.

Permitted Second Priority Refinancing Debt shall mean 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 Liens on 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 is not secured by any property or assets 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, 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 with the Administrative Agent and (d) such Indebtedness meets the Permitted Junior Debt Conditions.

Permitted Unsecured Refinancing Debt shall mean unsecured Indebtedness incurred by Borrower in the form of one or more series of senior unsecured notes or loans; provided that such

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Indebtedness (a) constitutes Credit Agreement Refinancing Indebtedness and (b) meets the Permitted Junior Debt Conditions.

 Person shall mean any individual, corporation, company, association, partnership, limited liability company, joint venture, trust, unincorporated organization or Governmental Authority or any other entity.

Pledged Collateral shall mean the Pledged Collateral as defined in each of the Security Agreements.

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).

PPSA shall mean the Personal Property Security Act (Alberta), the Civil Code of Quebec or similar personal property security legislation as in effect from time to time in any applicable province or territory of Canada.

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 Restricted Subsidiaries for such period.

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

 Prime Rate means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent).

Principal Office shall mean the principal office or account of Administrative Agent listed on Schedule 13.02 hereto or such other office or account as may be designated in writing by 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.

 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.

Propco” shall have the meaning assigned to such term in the definition of “Target Acquisition Agreement.”

 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

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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.

Qualified Cash shall mean, as of any date of determination, the amount of unrestricted cash and Cash Equivalents of Borrower and its Restricted Subsidiaries on such date that constitutes Collateral and is held in Deposit Accounts or Securities Accounts, or any combination thereof, and which such Deposit Accounts and Securities Accounts are the subject of control agreements in favor of the Administrative Agent, which control agreements shall in each case be in form and substance reasonably acceptable to the Administrative Agent.

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

 Qualified ECP Guarantor shall mean, 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 Closing Date or made after the Closing Date in accordance with Section 10.04 hereof, in each case, to the extent such Investments were made in reliance on the Available Amount.

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

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 Date Revolving Commitments and any Incremental Existing Tranche Revolving Commitments of the same Tranche and any Revolving Loans thereunder, the date that is the fifth anniversary of the Closing Date and (b) 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 fraction (expressed as a percentage) the numerator of which is the Revolving Commitment of such Revolving Lender at such time

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and the denominator of which is the Total Revolving Commitments at such time; provided, however, that if the R/C Percentage of any Revolving Lender is to be determined after the Total Revolving Commitments 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.

Ratio Debt has the meaning set forth in Section 10.01(t).



Ratio Debt Amount shall mean, as of any date of determination:

(a) the Shared Fixed Incremental Amount; plus 

(b) the Shared Prepayment Amount;  plus 

(c) an unlimited amount so long as, in the case of this clause (d), (i) if such Indebtedness is secured by Liens in any Collateral on a pari passu basis with Liens securing the Obligations, the Consolidated First Lien Net Leverage Ratio would not exceed 3.00:1.00, (ii) if such Indebtedness is secured by Liens in the Collateral on a junior lien basis to the Liens securing the Obligations, the Consolidated Total Net Leverage Ratio would not exceed 3.50:1.00 or (iii) if such Indebtedness is unsecured or secured by non-Collateral assets, the Consolidated Total Net Leverage Ratio would not exceed  3.50:1.00, in each case, calculated on a Pro Forma Basis after giving effect thereto, including the application of proceeds thereof, as of the last day of the most recently ended Test Period;  provided that, for such purpose, (1) in the case of any unfunded Indebtedness, such calculation shall be made assuming a full drawing of such Indebtedness and (2) such calculation shall be made without netting the cash proceeds of any such Indebtedness (this clause (c), the Ratio Incurrence-Based Amount).

It is understood and agreed that (I) Borrower may elect to use the Ratio Incurrence-Based Amount prior to the Shared Fixed Incremental Amount or the Shared Prepayment Amount and regardless of whether there is capacity under the Shared Fixed Incremental Amount or the Shared Prepayment Amount, and if the Shared Fixed Incremental Amount, the Shared Prepayment Amount and the Ratio Incurrence-Based Amount are each available and Borrower does not make an election, Borrower will be deemed to have elected to use the Ratio Incurrence-Based Amount;  and (II) any portion of any Indebtedness incurred in reliance on the Shared Fixed Incremental Amount or the Shared Prepayment Amount shall be reclassified as incurred under the Ratio Incurrence-Based Amount as Borrower may elect from time to time if Borrower meets the applicable Consolidated First Lien Net Leverage Ratio or Consolidated Total Net Leverage Ratio, as applicable, under the Ratio Incurrence-Based Amount at such time on a Pro Forma Basis.

Ratio Incurrence-Based Amount has the meaning set forth in the definition of Ratio Debt Amount.

Real Property shall mean, as to any Person, all right, title and interest (including any leasehold and subleasehold estate) of such Person in and to any and all parcels of or interests in real property owned in fee or leased, subleased or licensed by such Person (including, for the avoidance of doubt, any Vessels to the extent such Vessels constitute real property and not personal property), together with, in each case, all easements,  hereditaments and appurtenances relating thereto, and all improvements and appurtenant fixtures incidental to the ownership or lease, sublease, or license thereof (it being understood that for purposes of Schedule 8.23(a), Borrower shall not be required to describe such improvements and appurtenant fixtures to Material Real Property in such Schedule).

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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.

Refinanced Debt shall have the meaning set forth in the definition of Credit Agreement Refinancing Indebtedness.

Refinancing Amendment shall mean 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.

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 Persons Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Persons Affiliates.

Release shall mean any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, emanating or migrating of any

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Hazardous Material in, into, onto or through the Environment or within, from or into any building, structure, facility or fixture.

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).

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 B Facility Loans into any such new tranche of replacement term loans) (x) having an All-In Yield for the respective Type of such replacement term loan that is less than the All-In Yield for Term B Facility Loans of the respective Type (excluding any such loans incurred in connection with a Change of Control or a Significant Acquisition and any such loan that is not made for the primary purposes of reducing overall All-In Yield) and (y) the proceeds of which are used to repay, in whole or in part, principal of outstanding Term B Facility Loans (it being understood that a conversion of Term B Facility Loans into any such new tranche of replacement term loans shall constitute a repayment of principal of outstanding Term B Facility Loans), (ii) any amendment, waiver or other modification to this Agreement the primary purpose of which would have the effect of reducing the All-In Yield for Term B Facility Loans, excluding any such amendment, waiver or modification entered into in connection with a Change of Control or a Significant 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 B Facility Loans (except to the extent any such Incremental Term Loans or Other Debt is incurred in connection with a Change of Control or a Significant Acquisition or such Incremental Term Loans or Other Debt are not incurred for the primary purposes of reducing overall All-In Yield) if such Incremental Term Loans or Other Debt has an All-In Yield for the respective Type of such replacement term loan that is less than the All-In Yield for Term B Facility Loans at the time of the prepayment 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 B 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 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.

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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 B Facility Loans, Term B Facility Commitments or Incremental Term B Loan Commitments, Non-Defaulting Lenders having more than 50% of the aggregate sum of the Term B Facility Loans, unutilized Term B Facility Commitments and unutilized Incremental Term B Loan Commitments of Non-Defaulting Lenders then outstanding; (c) 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; (d) 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, of Non-Defaulting Lenders then outstanding; and (e) 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.

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

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 Amount has the meaning set forth in Section 2.10(a).

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 Borrower or any of its Restricted Subsidiaries, 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 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.

Retained Percentage shall mean, with respect to an Excess Cash Flow Period, (a) 100% minus (b) the Applicable ECF Percentage with respect to such Excess Cash Flow Period.

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, and (ii) with 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 caption 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 Lenders 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 Lenders L/C Liability, plus the aggregate amount at such time of such Lenders 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.

Revolving Lenders shall mean (a) on the Closing 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).

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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 Lenders L/C Liability under its Revolving Commitment of such Tranche, plus the aggregate amount at such time of such Lenders Swingline Exposure under its Revolving Commitment of such Tranche.

S&P shall mean Standard & Poors Rating Services, a division of The McGraw-Hill Companies, or any successor thereto.

Sale Leaseback means (i) the sale of the Real Properties of the Target to PropCo pursuant to the Acquisition Agreement and the Real Estate Purchase Agreement (as defined in the Acquisition Agreement) and (ii) the lease of such Real Properties by PropCo to Borrower or one or more of its Wholly  Owned Subsidiaries that are Restricted Subsidiaries pursuant to that certain Lease, dated as of June 17, 2019, by or among PropCo and Borrower or one or more of its wholly-owned Restricted Subsidiaries.

Sale Leaseback Operating Expenses” has the meaning set forth in the definition of “Consolidated Net Income.”

Sanction(s) shall mean 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 Majestys Treasury of the United Kingdom, (c) Global Affairs Canada or (d) other relevant sanctions authority.

Sanctioned Country shall mean, at any time, a country, region or territory which is itself the subject or target of any comprehensive Sanctions (at the time of this Agreement, Crimea, Cuba, Iran, North Korea, Sudan and Syria).

Sanctioned Person shall mean, 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, Her Majestys Treasury of the United Kingdom, or Global Affairs Canada, (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.

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 shall mean 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.

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

Security Agreements shall mean the security agreements substantially in the form of Exhibit H and Exhibit H-1 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 Agreements, the 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 to grant or perfect a security interest in any Property acquired or developed that is of the kind and nature that would constitute Collateral, 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.

Sellers shall have the meaning assigned to such term in the definition of Target Acquisition Agreement.

 Shared Fixed Incremental Amount shall mean, as of any date of determination, (a) the greater of (i) $35 million and (ii) 75% of Consolidated EBITDA calculated at the time of determination on a Pro Forma Basis as of the most recently ended Test Period minus (b)(i) the aggregate principal amount of all Incremental Commitments incurred or issued in reliance on the Shared Fixed Incremental Amount, and (ii) the aggregate principal amount of all Indebtedness incurred or issued in reliance on Section 10.01(k) and Section 10.01(t) in reliance on the Shared Fixed Incremental Amount.

Shared Prepayment Amount” shall mean, as of any date of determination, (a) the aggregate amount of any voluntary prepayment or repurchase of Term Loans, Revolving Loans (to the extent accompanied by a corresponding permanent reduction of the Revolving Commitments) or Indebtedness incurred under Section 10.01(t) and, in the case of any Borrower Loan Purchase, limited to the cash amount paid in respect thereof; in each case to the extent that the relevant prepayment or repurchase (x) is not funded or effected with any long term Indebtedness or (y) prepays or repurchases Indebtedness incurred in reliance on the Incremental Incurrence-Based Amount or the Ratio Incurrence-Based Amount, minus (b) the aggregate principal amount of all Indebtedness incurred or issued in reliance on the Shared Prepayment Amount.

Significant Acquisitions shall mean acquisitions that, individually or in the aggregate, (a) are not permitted by the Credit Documents immediately prior to the consummation of such acquisitions, or (b) if permitted by the terms of the Credit Documents immediately prior to the consummation of such acquisition, would not provide Borrower and its Restricted Subsidiaries with adequate flexibility under the Credit Documents for the continuation and/or expansion of their combined operations following such consummation, as reasonably determined by Borrower acting in good faith.

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 Persons 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 Persons 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

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circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability, without duplication.

 Specified Representations mean the representations and warranties of the Credit Parties set forth in Sections 8.01(a) (but only with respect to Credit Parties), 8.04(a) (but only with respect to Credit Parties and their respective Subsidiaries, and as such representations and warranties relate to the Credit Documents), 8.05 (but only as such representations and warranties relate to the Credit Documents), 8.09, 8.11(b), 8.14 (but only as it relates to security interests that may be perfected through the filing of UCC or PPSA financing statements, Quebec hypothecs, filing of intellectual property security agreements with the United States Patent and Trademark Office or United States Copyright Office or CIPO or delivery of stock or equivalent certificates representing Equity Interests in material Subsidiaries that are not Foreign Subsidiaries (other than Equity Interests in any such Subsidiaries for which prior approval of Liens is required under applicable Gaming Laws but has not been obtained)), 8.17 and 8.27.

Specified Transaction shall mean (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 of any Person or all or substantially all of the assets or division or product line of any Person, 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, (e) any Acquisition or Investment constituting an acquisition of assets constituting a business unit, line of business or division of another Person, (f) any dividend, distribution or similar Restricted Payment by Borrower and (g) any other events or transactions that by the terms of the Credit Documents require pro forma compliance or determination on a pro forma basis.

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).

Statutory Reserve Rate means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentage (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the board to which Administrative Agent is subject with respect to the LIBO Base Rate, for eurocurrency funding (currently referred to as Eurocurrency Liabilities in Regulation D).  Such reserve percentage shall include those imposed pursuant to such Regulation D.  LIBOR Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation.  The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

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.

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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 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 shall mean, 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‑3.

Swingline Sublimit shall mean the lesser of (a) $2.0 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 Date” has the meaning specified in Section 9.15(c).

 Taking shall mean a taking or voluntary conveyance during the term of this Agreement of all or part of any Mortgaged Real Property 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 any portion thereof, whether or not the same shall have actually been commenced.

Target shall mean Mountaineer, IOC-Caruthersville and IOC-CG.

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Target Acquisition shall mean the anticipated or consummated acquisition by Borrower, directly or indirectly, of the Target pursuant to the Target Acquisition Agreement.

Target Acquisition Agreement shall mean that certain Equity Purchase Agreement, dated as of June 17, 2019, among Borrower, MTR Gaming Group, Inc., a Delaware corporation (MTR), Isle of Capri Casinos LLC, a Delaware limited liability company (IOC and together with MTR, each a Seller, collectively the Sellers) and VICI Properties Inc. and/or one or more of its subsidiaries (PropCo), together with all exhibits, schedules and disclosure letters thereto.

Target Material Adverse Effect shall mean a Material Adverse Effect (as defined in the Target Acquisition Agreement as in effect on June 17, 2019).

Tax Returns has the meaning set forth in Section 8.08.

Taxes shall mean all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

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.

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 Lenders name under the heading Term B Facility Commitment on Annex A‑2, 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 $170.0 million.

Term B Facility Lender shall mean (a) on the Closing Date, the Lenders having Term B Facility Commitments on Annex A‑2 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 B Facility Maturity Date shall mean the date that is the seventh anniversary of the Closing Date.

Term B Facility Notes shall mean the promissory notes substantially in the form of Exhibit A‑2.

Term Facilities shall mean, collectively, the credit facilities comprising 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 B Facility Commitments, (b) any Incremental Term Loan Commitments and (c) any Other Term Loan Commitments.

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

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Term Loan Notes shall mean, collectively, the Term B Facility Notes and any New Term Loan Notes.

Term Loans shall mean, collectively, the Term B Facility Loans, any Extended Term Loans, any Other Term Loans and any New Term Loans.

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.

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 Closing Date are $10.0 million.

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 Date Revolving Commitment or any Incremental Existing Tranche Revolving Commitments of the same Tranche or Closing Date Revolving Commitments and any Incremental Existing Tranche Revolving Commitments, (b) Lenders having such other Tranche of Revolving Loans or Revolving Commitments created pursuant to an Extension Amendment, Incremental Joinder Agreement or Refinancing Amendment, (c) Lenders having Term B Facility Loans or Term B Facility Commitments and Incremental Term B Loan Commitments and (d) 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 Existing Tranche Revolving Commitments of the same Tranche or Closing Date Revolving Commitments and any Incremental Existing Tranche Revolving Commitments of the same Tranche, (b) such other Tranche of Revolving Loans or Revolving Commitments created pursuant to an Extension Amendment, Incremental Joinder Agreement or Refinancing Amendment, (c) Term B Facility Loans or Term B Facility Commitments and Incremental Term B Loan Commitments and (d) such other Tranche of Term Loans or Term Loan Commitments created pursuant to an Extension Amendment, Incremental Joinder Agreement or Refinancing Amendment.

Transactions shall mean, collectively, (a) the Closing Date Refinancing, (b) the consummation of the Target Acquisition and the other transactions contemplated by the Target Acquisition Agreement, (c) the entering into of this Agreement and the other Credit Documents and the borrowings hereunder on the Closing Date, (d) the consummation of the Sale Leaseback and (e) the payment of fees and expenses in connection with the foregoing.

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.

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.

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

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

UCP” shall mean, 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).

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

United States shall mean the United States of America.

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

Unrestricted Subsidiaries shall mean (a) as of the Closing Date, the Subsidiaries listed on Schedule 8.12(c), (b) any Subsidiary of Borrower designated as an Unrestricted Subsidiary 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).

Unutilized R/C Commitment shall mean, for any Revolving Lender, at any time, the excess of such Revolving Lenders Revolving Commitment at such time over the sum of (i) the aggregate outstanding principal amount of all Revolving Loans made by such Revolving Lender, (ii) such Revolving Lenders L/C Liability at such time and (iii) such Revolving Lenders Swingline Exposure at such time.

U.S. Tax Compliance Certificate has the meaning set forth in Section 5.06(c)(ii).

Venue Documents has the meaning set forth in Section 10.05(o).

Venue Easements has the meaning set forth in Section 10.05(o).

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

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 any Indebtedness (or any applicable portion thereof), an amount equal to (a) the scheduled repayments of such Indebtedness 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 Indebtedness.

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

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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.

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 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, 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 shall mean, 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.

Accounting Terms and Determinations

.  Except as otherwise provided in this Agreement, 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 Closing 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 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).  For purposes of determining the amount of any outstanding Indebtedness, no

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effect shall be given to any change in accounting for leases pursuant to GAAP resulting from the implementation of Financial Accounting Standards Board ASU No. 2016–02, Leases (Topic 842), to the extent such adoption would require recognition of a lease liability where such lease (or similar arrangement) would not have required a lease liability under GAAP as in effect on December 31, 2015.

Classes and Types of Loans

.  Loans hereunder are distinguished by Class or “Tranche” and by Type.  The Class